EXHIBIT 10.2
LOAN AGREEMENT
for a
NLG 1,100,000,000 Multi-currency Revolving Credit Facility
to
UNITED AND PHILIPS COMMUNICATIONS B.V.
AND CERTAIN OF ITS SUBSIDIARIES
Guaranteed by
CERTAIN SUBSIDIARIES OF
UNITED AND PHILIPS COMMUNICATIONS B.V.
Arranged by
THE TORONTO-DOMINION BANK
Agent
THE TORONTO-DOMINION BANK
Security Trustee
THE TORONTO-DOMINION BANK
as amended by a
Supplemental Agreement dated 8 December 1997
▇▇▇▇▇▇ ▇▇▇▇
London
CONTENTS
Clause Heading Page
1 Purpose and definitions.......................................................................1
1.1 Purpose..............................................................................1
1.2 Definitions..........................................................................1
1.3 Headings............................................................................17
1.4 Construction of certain terms.......................................................17
1.5 Majority Banks......................................................................18
1.6 Agent's opinion.....................................................................19
2 The Facility.................................................................................20
2.1 Amount..............................................................................20
2.2 Obligations several.................................................................20
2.3 Interests several...................................................................20
2.4 Telekabel Wien's interests several..................................................20
3 Conditions...................................................................................21
3.1 Documents and evidence..............................................................21
3.2 General conditions precedent........................................................21
3.3 Waiver of conditions precedent......................................................22
3.4 Notification........................................................................22
3.5 New ▇▇▇▇▇...........................................................................22
3.6 Conditions subsequent...............................................................22
4 Advances; Currencies.........................................................................24
4.1 Maximum Outstandings................................................................24
4.2 Drawdown............................................................................24
4.3 Amount and Term.....................................................................24
4.4 Selection of currencies.............................................................25
4.5 Limit on currencies; non-availability...............................................25
4.6 Currency Amounts....................................................................25
4.7 Notification to Banks...............................................................25
4.8 Application of proceeds.............................................................25
4.9 Initial Advances....................................................................25
4.10 Philips Advance.....................................................................26
4.11 Telekabel Bond......................................................................27
4.12 Subsidiary Drawings.................................................................27
4.13 Refinancing the ▇▇▇▇▇ Loan Agreement................................................27
4.14 Telekabel Notes.....................................................................28
5 Interest; alternative interest rates.........................................................28
5.1 Normal interest rate................................................................28
5.2 Applicable Margin...................................................................28
5.3 Interest for late payment...........................................................29
5.4 Notification of interest rate.......................................................29
5.5 Reference Bank quotations...........................................................30
5.6 Market disruption; non-availability.................................................30
6 Repayment, prepayment and cancellation.......................................................31
6.1 Repayment...........................................................................31
6.2 Voluntary prepayment................................................................31
6.3 Additional voluntary prepayment.....................................................31
6.4 Amounts payable on prepayment.......................................................31
6.5 Mandatory prepayment, Excess Cash Flow recapture and cancellation...................31
6.6 Notice of prepayment................................................................33
6.7 Cancellation of Commitments.........................................................33
6.8 Reduction of Total Commitments......................................................33
6.9 Termination of Commitments..........................................................34
7 Fees and expenses............................................................................35
7.1 Fees................................................................................35
7.2 Expenses............................................................................35
7.3 Value Added Tax.....................................................................35
7.4 Stamp and other duties..............................................................35
8 Payments and Taxes; accounts and calculations................................................37
8.1 No set-off or counterclaim; distribution to the Banks...............................37
8.2 Payments by the Banks...............................................................37
8.3 Non-Banking Days....................................................................37
8.4 Agent may assume receipt............................................................37
8.5 Grossing-up for Taxes...............................................................37
8.6 Qualifying Banks....................................................................38
8.7 Claw-back of Tax benefit............................................................38
8.8 Certification to secure a Tax benefit...............................................38
8.9 Bank accounts.......................................................................39
8.10 Partial payments....................................................................39
8.11 Calculations........................................................................40
8.12 Certificates conclusive.............................................................40
8.13 Effect of monetary union............................................................40
9 Guarantee....................................................................................41
9.1 Limits of Guarantee.................................................................41
9.2 Covenant to pay.....................................................................41
9.3 Guarantors as principal debtors; indemnity..........................................42
9.4 No security taken by Guarantors.....................................................42
9.5 Interest............................................................................42
9.6 Continuing security and other matters...............................................42
9.7 New accounts........................................................................43
9.8 Liability unconditional.............................................................43
9.9 Collateral Instruments..............................................................43
9.10 Waiver of Guarantors' rights........................................................43
9.11 Suspense accounts...................................................................44
9.12 Settlements conditional.............................................................44
9.13 Guarantors to deliver up certain property...........................................44
9.14 Retention of this guarantee.........................................................44
9.15 Changes in constitution or reorganisations of Banks.................................44
9.16 Other Guarantors....................................................................45
9.17 Acceding Guarantors and New ▇▇▇▇▇...................................................45
10 Representations and warranties...............................................................47
10.1 Repeated representations and warranties.............................................47
10.2 Further representations and warranties..............................................49
10.3 Repetition..........................................................................51
11 Undertakings.................................................................................52
11.1 Positive Covenants..................................................................52
11.2 Negative Covenants..................................................................61
12 Financial covenants..........................................................................66
12.1 Pre Philips Advance Covenants.......................................................66
12.2 Post Philips Advance Covenants......................................................66
12.3 Auditors certificate................................................................67
13 Events of Default............................................................................68
13.1 Events of default...................................................................68
13.2 Acceleration........................................................................73
13.3 Demand basis........................................................................73
14 Indemnities..................................................................................74
14.1 Miscellaneous indemnities...........................................................74
14.2 Currency of account; currency indemnity.............................................74
14.3 Environmental indemnity.............................................................74
15 Unlawfulness and increased costs; mitigation.................................................76
15.1 Unlawfulness........................................................................76
15.2 Increased costs.....................................................................76
15.3 Exceptions..........................................................................77
15.4 Mitigation..........................................................................77
16 Set-off and pro rata payments................................................................79
16.1 Set-off.............................................................................79
16.2 Pro rata payments...................................................................79
16.3 No release..........................................................................79
16.4 No charge...........................................................................80
17 Assignment, substitution and lending offices.................................................81
17.1 Benefit and burden..................................................................81
17.2 No assignment by Obligors...........................................................81
17.3 Substitution........................................................................81
17.4 Reliance on Substitution Certificate................................................81
17.5 Authorisation of Agent..............................................................82
17.6 Construction of certain references..................................................82
17.7 Lending offices.....................................................................82
17.8 Disclosure of information...........................................................82
18 Arranger, Agent, Security Trustee and Reference Banks........................................83
18.1 Appointment of Agent................................................................83
18.2 Agent's actions.....................................................................83
18.3 Agent's duties......................................................................83
18.4 Agent's rights......................................................................83
18.5 No liability of Arranger, Security Trustee and Agent................................84
18.6 Non-reliance on Arranger, Security Trustee or Agent.................................85
18.7 No Responsibility on Arranger, Security Trustee or Agent for any Obligor's
performance.........................................................................85
18.8 Reliance on documents and professional advice.......................................86
18.9 Other dealings......................................................................86
18.10 Rights of Agent as Bank; no partnership.............................................86
18.11 Amendments; waivers.................................................................86
18.12 Reimbursement and indemnity by Banks................................................87
18.13 Retirement of Agent.................................................................87
18.14 Change of Reference Banks...........................................................88
18.15 Prompt distribution of proceeds.....................................................88
19 Notices and other matters....................................................................89
19.1 Notices.............................................................................89
19.2 Notices through the Agent...........................................................89
19.3 No implied waivers, remedies cumulative.............................................90
19.4 English translations................................................................90
19.5 Counterparts........................................................................90
19.6 No breach of Austrian Agreements....................................................90
20 Governing law and jurisdiction...............................................................91
20.1 Law.................................................................................91
20.2 Submission to jurisdiction..........................................................91
20.3 Agent for service of process........................................................91
Schedules
1 Part A - The Banks and their Commitments.....................................................92
Part B - Restricted Subsidiaries and Original Guarantors.................................94
Part C - Borrowers.......................................................................95
2 Form of Drawdown Notice......................................................................96
3 Part A - documents and evidence required.....................................................98
Part B - Documents and evidence required................................................101
Part C - Documents and evidence required as conditions..................................102
Part D - Documents and evidence required as conditions..................................103
4 Calculation of Additional Cost..............................................................104
5 Form of Substitution Certificate............................................................106
6 Part A - Compliance Certificate.............................................................109
Part B - Compliance Certificate to be delivered by the auditors of......................111
7 Licences....................................................................................113
8 Form of Deed of Subordination...............................................................115
9 Principal Agreements........................................................................128
10 Part A - Deed of Guarantor Accession........................................................129
Part B - Documents and Evidence to be delivered by an Acceding Guarantor................131
11 Part A - Deed of Borrower Accession.........................................................133
Part B - Documents and Evidence to be delivered by New ▇▇▇▇▇............................134
12 [Intentionally left blank]..................................................................136
13 Part A - Norwegian Security Documents.......................................................137
Part B - Norwegian Security Documents (if at............................................143
14 Form of Telekabel Note......................................................................144
THIS AGREEMENT is dated 8th October 1997 and is amended pursuant to a
Supplemental Agreement dated 8 December 1997 and made BETWEEN:
(1) UNITED AND PHILIPS COMMUNICATIONS B.V. as Parent and a Borrower;
(2) THE ENTITIES listed in part C of schedule 1 as Borrowers;
(3) THE ENTITIES listed in part B of schedule 1 as Guarantors;
(4) THE TORONTO-DOMINION BANK as Arranger;
(5) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out
in part A of schedule 1;
(6) THE TORONTO-DOMINION BANK as Agent; and
(7) THE TORONTO-DOMINION BANK as Security Trustee.
IT IS AGREED as follows:
1 Purpose and definitions
-----------------------
1.1 Purpose
-------
(a) This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrowers a revolving credit facility of up to NLG
1,100,000,000 or its equivalent in Optional Currencies to be used for
the purpose of (i) general corporate purposes of the Restricted Group,
(ii) refinancing and cancellation of the Existing UPC Facility (iii)
refinancing in part the ASLK Facility, (iv) refinancing and
cancellation of the Existing Norkabel Facility, (v) payments to be made
at the closing of the Philips Transaction in accordance with and as
contemplated by the Securities Purchase and Conversion Agreement in an
amount equal to (A) the principal and accrued but unpaid interest of
the UPC PIK Notes and (B) certain fees in connection with the Philips
Transaction, (vi) financing future investments and working capital
needs of the Restricted Group (subject to the provisions of this
Agreement), (vii) refinancing certain Indebtedness owed by members of
the Restricted Group to the Parent and (viii) financing expenses
incurred in connection with the Facility. For the avoidance of doubt
the Facility may not be used to make any payments of principal,
interest or other charges under the Bridge Facility. Furthermore, the
aggregate amount to be made available by the Banks to the Norwegian
Borrowers shall not exceed the Norwegian Loan Amount; and
(b) For the purposes of this Agreement the revolving credit facility shall
only be made available to Telekabel Wien by way of loans against the
issue by Telekabel Wien of Telekabel Notes within the overall limit of
the Facility and, without prejudice to the foregoing, Telekabel Wien
shall, subject to the approval of the managing board of Telekabel Wien
of the amount of such borrowing, be permitted to borrow by way of loans
against the issue of Telekabel Notes upon and subject to the terms of
this Agreement, a sum of up to Austrian Schillings 1,700,000,000 or
such greater amount as shall be agreed upon by the supervisory board of
Telekabel Wien from time to time. Except (i) in the possible case of
loans to CNA and (ii) loans to other members of the Restricted Group
incorporated in Austria in amounts not exceeding its Distributable
Profits at the time thereof, Telekabel Wien shall not use such
borrowings for the purpose of providing loans to any member of the
Restricted Group or any other person.: The possibility to grant loans
does not constitute an obligation to that extent and any loans may be
granted by Telekabel Wien in accordance with Austrian law.
1.2 Definitions
-----------
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In this Agreement, unless the context otherwise requires:
"1997 Budget" means the budget for the Restricted Group for the period
commencing on 1st January, 1997 and ending on 31st December, 1997
contained within the Management Base Case;
"Acceding Guarantors" means those entities which have become a party to
this Agreement as Guarantors pursuant to clause 9.17;
"Additional Cost" means in relation to any period a percentage
calculated for such period at an annual rate determined in accordance
with schedule 4;
"Advance" means (i) (in the case of each Borrower other than Telekabel
Wien) each borrowing of a portion of the Commitments by a Borrower by
way of advance or (as the context may require) the principal amount of
such borrowing for the time being and/or (ii)(in the case of Telekabel
Wien) each borrowing of a portion of the Commitments by Telekabel Wien
against the issue by Telekabel Wien of a Telekabel Note or (as the
context may require) the principal amount of such Telekabel Note for
the time being outstanding;
"Agent" means The Toronto-Dominion Bank of Triton Court, ▇▇-▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such other person as may be appointed agent
for the Banks pursuant to clause 18.13;
"Annual Budget" means a budget in respect of the Restricted Group for
each financial year containing information of a substantially similar
type and to a substantially similar level of detail as the 1997 Budget
or containing such other information or to such other level of detail
as has, at the relevant time, been approved in writing by the Agent
acting on the instructions of the Majority Banks;
"Arranger" means The Toronto-Dominion Bank of Triton Court, ▇▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"ASLK Facility" means the secured overdraft facility made available to
Radio Public by ASLK Bank N.V. pursuant to an agreement between Radio
Public and ASLK Bank N.V. dated 13th February 1997;
"Associated Company" of a person means (i) any other person which is
directly or indirectly controlled by, under common control with or
controlling such person or (ii) any other person owning beneficially
and/or legally directly or indirectly 10 per cent. or more of the
equity interest in such person or 10 per cent. of whose equity interest
is owned beneficially and/or legally directly or indirectly by such
person. For the purposes of this definition the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person whether through
the ownership of interests or voting securities, by contract or
otherwise;
"Austrian Agreements" means the following documents and agreements
which have been entered into by the Telekabel Entities:
(a) Vereinbarung (agreement on mutual relations) dated 30th
November 1977 between Telekabel Wien and Kabel-TV-Wien GmbH;
(b) Entgeltvereinbarung (agreement on details of payment), dated
23rd November 1987 between Telekabel Wien and Stadt Wien;
(c) Programmnutzungsvereinbarung (agreement on use of television
and radio programmes) dated 10th December 1987 between
Telekabel Wien and Kabel-TV-Wien GmbH;
2
(d) Treuhand-und Geschaftsbesorgungsvertrag (trust and agency
agreement) dated 29th November 1988 between Telekabel Wien,
Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Betriebsgesellschaft mbh and Philips Data Systems GmbH;
(e) Kostenvergutung (reimbursement of costs agreement) dated 27th
July 1994 by Telekabel Wien in favour of Kabel-TV Wiener
Neustadt/Neunkirchen GmbH;
(f) Syndikatsvereinbarung (shareholders agreement) dated 28th June
1995 between Osterreichische Philips Industrie GmbH, CNA and
Kabel-TV-Wien GmbH;
(g) Geschaftsordnung (internal organisational rules) Telekabel
Wien GmbH dated 28th June 1995 between Osterreichische Philips
Industrie GmbH, CNA and Kabel-TV-Wien GmbH;
(h) Entgeltvereinbarung (agreement on details of payment) dated
9th February 1988 between Telekabel Graz GmbH and Grazer
Kabel-TV GmbH;
(i) Grundsatzvereinbarung (basic agreement on mutual relations)
dated 30th November 1977 entered into between Osterreichische
Philips Industrie GmbH and Kabel-TV-Wien GmbH;
(j) Dividendengarantie (guarantee of dividends) dated 30th
November 1987 entered into by Osterreichische Philips
Industrie GmbH in favour of Kabel-TV-Wien GmbH;
(k) Grundsatzvereinbarung (basic agreement on mutual relations and
operations of project company (Telekabel Graz GmbH)) dated 5th
May 1983 entered into between Osterreichische Philips
Industrie GmbH and Grazer Kabel-TV GmbH;
(l) Dividendengarantie (guarantee of dividends) dated 14th
November 1988 entered into by Osterreichische Philips
Industrie GmbH in favour of Grazer Kabel-TV GmbH;
(m) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel Klagenfurt GmbH) dated 6th August 1979
entered into between Osterreichische Philips Industrie GmbH
and Landeshauptstadt Klagenfurt;
(n) Dividendengarantie (guarantee of dividends) dated 18th
December 1990 entered into by Osterreichische Philips
Industrie GmbH in favour of Landeshauptstadt Klagenfurt;
(o) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Region Buden
Betriebsgesellschaft mbH) dated 18th February 1980 entered
into between Osterreichische Philips Industrie GmbH and
Kabel-TV Sud GmbH;
(p) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Gesellschaft mbH) dated 23rd May 1979 entered into between
Osterreichische Philips Industrie GmbH and Kabel-TV Wiener
Neustadt GmbH; and
(q) Vereinbarung (agreement relating to remunerating ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇▇▇▇) dated 30th November 1993 entered into between
Telekabel Wien and Kabel-TV-Wien GmbH;
"Austrian Licences" means those licences specified as Austrian Licences
in schedule 7;
"Austrian Security Document" means the pledge over receivables given to
the Security Trustee by Telekabel Wien in the agreed form;
3
"Authorised Officer" means that officer or officers of the Parent
authorised to sign Compliance Certificates, Drawdown Notices and other
notices, requests, or confirmations referred to in this Agreement or
relating to the Facility;
"Availability Period" means the period from the date of this Agreement
and ending on whichever is the earlier of (i) the Termination Date or
(ii) the date on which (a) the Parent cancels the whole of the undrawn
Commitments under clause 6 or (b) the Total Commitments are reduced to
zero pursuant to clause 6, 13.2 or 15.1;
"Available Facility Amount" means at any time the amount by which the
Total Commitments exceed the aggregate Guilder Amount of all Advances
outstanding at such time;
"Banking Day" means a day (other than Saturday or Sunday) on which
dealings in deposits in Guilders or the relevant Optional Currency are
carried on in the London Interbank Market and (if any calculations in
respect of, or transfer of funds in, Guilders and/or an Optional
Currency is required to be made on such day) on which banks and foreign
exchange markets are open for business in the City of London and
Amsterdam or the principal financial centre in the jurisdiction of the
Optional Currency concerned;
"Banks" means the banks and financial institutions listed in part A of
schedule 1 and includes their successors in title and Substitutes;
"Belgian Francs" and "BEF" means the lawful currency for the time being
of Belgium;
"Belgian Licences" means those licences specified as Belgian Licences
in schedule 7;
"Borrowed Money" means Indebtedness in respect of (i) money borrowed or
raised and debit balances at banks, (ii) any bond, note, loan stock,
debenture or similar debt instrument, (iii) acceptance or documentary
credit facilities, (iv) receivables sold or discounted (otherwise than
on a non-recourse basis), (v) payments for assets acquired or services
supplied deferred for a period of over 90 days after the relevant
assets were or are to be acquired or the relevant services were or are
to be supplied, (vi) finance leases and hire purchase contracts, (vii)
any other transaction (including without limitation forward sale or
purchase agreements) having the commercial effect of a borrowing or
raising of money or of any of (ii) to (vi) above and (viii) guarantees
in respect of Indebtedness of any person falling within any of (i) to
(vii) above (for the avoidance of doubt without double counting
guarantees given by the member of the Restricted Group for the
Indebtedness of another member of the Restricted Group) provided that
Indebtedness which has been cash collateralised shall not be included
in any calculation of Borrowed Money to the extent so cash
collateralised;
"Borrowers" means the Parent and the other entities whose names are set
out in part C of schedule 1 together with, after its accession pursuant
to clause 3.5, New ▇▇▇▇▇ and reference to a "Borrower" means any one of
them, as the context may require provided that Telekabel Wien shall not
be a Borrower for the purposes of this Agreement until the provisions
of clause 3.6(b) have been complied with and provided further that, for
the purposes of this Agreement, the term "Borrower", when used in
connection with Telekabel Wien, shall mean Telekable Wien as an issuer
of Telekabel Notes in accordance with the terms and conditions of this
Agreement;
"Bridge Agent" means The Toronto-Dominion Bank of Triton Court, ▇▇/▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such successor bank or financial
institution as is appointed agent for the banks pursuant to the terms
of the Bridge Facility;
"Bridge Borrower" means Belmarken Holding B.V. a limited liability
company incorporated under the laws of The Netherlands with its
registered office at Amsterdam and its business office at (1076EE)
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
"Bridge Facility" means the senior bridge facility made available to
the Bridge Borrower pursuant to the Bridge Facility Agreement the
proceeds of which (other than those to be used to
4
fund the interest reserve) are to be used by the Bridge Borrower in
satisfaction of the consideration payable to the Parent for the
purchase of the interests in the Unrestricted Group pursuant to the
Restructuring such proceeds to be used by the Parent for the purpose of
making certain payments in connection with the Securities Purchase and
Conversion Agreement;
"Bridge Facility Agreement" means the agreement entered or to be
entered into between inter alios the Bridge Borrower and the Bridge
Agent in relation to the Bridge Facility provided that none of the
lenders under the Bridge Facility shall in any circumstances have
recourse to any member of the Restricted Group or any of their
respective assets unless such lenders have entered into inter-creditor
arrangements with the Banks, satisfactory to all the Banks;
"Bridge Termination Date" means the date upon which the Bridge Facility
has been repaid in full and the commitments of the banks thereunder
have been irrevocably cancelled in full, as notified by the Bridge
Agent to the Agent and the Parent;
"Cable Systems" means the telecommunications and/or television systems
constructed or to be constructed in the areas covered by the Licences
and includes any part of such system and all modifications,
substitutions, replacements, renewals and extensions made to such
systems;
"Cable TV Annualised Net Operating Cash Flow" means, for the Restricted
Group, twice the aggregate of the Cable TV Net Operating Cash Flow in
respect of the most recently ended Six Month Period for the Restricted
Group in respect of which Monthly Management Accounts have been
delivered to the Agent under this Agreement;
"Cable TV Net Operating Cash Flow" means in respect of each Six Month
Period or financial year of the Restricted Group, the aggregate of (i)
the aggregate of the Net Operating Cash Flow of each of the Restricted
Subsidiaries referable solely to their respective cable television
businesses and (ii) the unconsolidated Net Operating Cash Flow of the
Parent adjusted by adding back 50 per cent. of the overhead costs
incurred by the Parent, as determined in accordance with GAAP and as
shown in the financial statements for such Six Month Period or
financial year prepared and delivered to the Agent under this
Agreement;
"Call Option Agreement" means the call option agreement dated 8th
January 1997 and made between the Parent and HMC;
"CNA" means Cable Networks Austria Holding b.v., a limited liability
company incorporated under the laws of the Netherlands with its
registered office at Amsterdam and its business office at (1076EE)
Amsterdam, Fredrik ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
"CNA Share Security" means the share pledge to be given to the Security
Trustee by the Parent in respect of its shareholding in CNA in the
agreed form;
"Collateral Instruments" means notes, bills of exchange, certificates
of deposit and other negotiable and non-negotiable instruments,
guarantees and any other documents or instruments which contain or
evidence an obligation (with or without security) to pay, discharge or
be responsible directly or indirectly for, any Indebtedness or
liabilities under this Agreement and includes Encumbrances;
"Commitment" means, in relation to a Bank, at any relevant time the
amount set opposite its name in part A of schedule 1 and/or, in the
case of a Substitute, the amount novated as specified in the relevant
Substitution Certificate, as reduced, in each case, by any relevant
term of this Agreement and so that, if at such time the Total
Commitments have been reduced to zero, references to a Bank's
Commitment shall be construed as a reference to that Bank's Commitment
immediately prior to such reduction to zero;
"Compliance Certificate" means either (i) a certificate substantially
in the form set out in schedule 6A in relation to the compliance (or
otherwise) with the undertakings in clause 12 issued by the Authorised
Officer of the Parent in relation to quarterly financial statements or
(ii)
5
a certificate substantially in the form of schedule 6B in relation to
the compliance (or otherwise) with the undertakings in clause 12 issued
by the auditors of the Parent in relation to annual financial
statements;
"Contribution" means, in relation to a Bank, the principal amount of
the Advances owing to such Bank at any relevant time;
"Deed of Borrower Accession" means the deed to be executed and
delivered by each entity which is to accede to this Agreement as a
Borrower, each substantially in the form of schedule 11 part A, mutatis
mutandis (or such other document as the Banks may require which has the
same, or substantially the same, effect);
"Deed of Guarantor Accession" means a deed to be executed and delivered
by any Acceding Guarantor pursuant to clause 9.17 substantially in the
form of schedule 10 part A;
"Deed of Subordination" means a deed of subordination to be entered
into between the Security Trustee and any Relevant Person pursuant to
the terms of this Agreement substantially in the form of schedule 8
with such changes as are satisfactory to the Banks;
"Default" means any Event of Default or any event or circumstance which
would, upon the giving of a notice by the Agent and/or the expiry of
the relevant period and/or the fulfilment of any other condition (in
each case as specified in clause 13.1), constitute an Event of Default;
"Derivatives Contract" means a contract, agreement or transaction which
is:
(i) a rate swap, basis swap, commodity swap, forward rate transaction,
commodity option, equity (or equity or other index) swap or
option, bond option, interest rate option, foreign exchange
transaction, collar or floor, currency swap, currency option or
any other similar transaction; and/or
(ii) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"Distributable Profits" means, in relation to any entity incorporated
in Austria, the distributable profits of such entity as calculated in
accordance with generally accepted accounting provisions prevailing in
Austria which may be disbursed as dividends and for which a
shareholder's resolution authorising such distribution has been passed
save that, in the case of any member of the Restricted Group
incorporated in Austria only, the Relevant Reserves may not be included
in the calculation of distributable profits of such entity apart from
by way of charges made to the profit and loss account of such entity in
respect of the amortisation of the good-will represented by such
Relevant Reserves and to extinguish existing negative balances on the
profit and loss account of such entity;
"Dollars" and "$" means the lawful currency for the time being of the
United States of America;
"Disclosure Letter" means the letter from the Parent to the Agent of
even date herewith, the form and content of which have previously been
approved by the Agent;
"Drawdown Date" means the date, being a Banking Day falling with the
Availability Period, on which an Advance is or is to be drawn down;
"Drawdown Notice" means a notice in the form or substantially in the
form of schedule 2, duly completed with particulars of the relevant
Advance;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment by way of security, trust
arrangement for the purpose of providing security or other security
interest of any kind securing any obligation of any person or any other
6
arrangement having the effect of conferring rights of retention or
other disposal rights over an asset (including without limitation title
transfer and/or retention arrangements having a similar effect or a
deposit of money with the primary intention of affording a right of
set-off) and includes any agreement to create any of the foregoing but
does not include liens arising in the ordinary course of trading by
operation of law and not by way of contract;
"Environmental Claim" means any claim, notice prosecution, demand,
action, official warning, abatement or other order (conditional or
otherwise) relating to Environmental Matters or any notification or
order requiring compliance with the terms of any Environmental Licence
or Environmental Law;
"Environmental Law" includes all or any law, statute, rule, regulation,
treaty, by-law, code of practice, order, notice, demand, decision of
the courts or of any governmental authority or agency or any other
regulatory or other body in any jurisdiction relating to Environmental
Matters;
"Environmental Licence" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental
Law;
"Environmental Matters" includes (a) the generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling,
importation, exportation, processing, collection, sorting, presence or
manufacture of any waste or any Relevant Substance; (b) nuisance,
noise, defective premises, health and safety at work or elsewhere; and
(c) the pollution, conservation or protection of the environment (both
natural and built) or of man or any living organisms supported by the
environment or any other matter whatsoever affecting the environment or
any part of it;
"Event of Default" means any of the events or circumstances described
in clause 13.1;
"Excess Cash Flow" means the aggregate of the Net Operating Cash Flow
of the Restricted Group calculated for the most recently ended
financial year (beginning with the financial year ending on 31st
December 2001), as shown in the relevant Compliance Certificate less
(i) any interest and other charges in respect of Borrowed Money of the
Restricted Group, (ii) repayments and/or prepayments of any Borrowed
Money of the Restricted Group and (iii) capital expenditure of the
Restricted Group, whether or not incurred, to the extent that the same
is included in the Annual Budget for such period as delivered to the
Agent under this Agreement, in the case of (i) and (ii) as were paid
during such Six Month Periods;
"Existing UPC Facility" means the US$150,000,000 revolving credit
facility dated 29th January 1996 and the US$150,000,000 syndicated
acquisition facility dated 15th April 1996, in each case made available
to the Parent by ABN-AMRO Bank N.V.;
"Existing Norkabel Facility" means the NOK 540,000,000 bridge facility
made available to Norkabel and its Subsidiaries by ING Bank N.V.
pursuant to an agreement dated 5th March 1997 between, inter alios, ING
Bank N.V. and Norkabel;
"Facility" means the revolving credit facility (including in the case
of Telekabel Wien, the facility permitting Telekabel Wien to borrow the
Commitments against the issue of Telekabel Notes) granted by the Banks
to the Borrowers under this Agreement;
"Finance Documents" means this Agreement and the Security Documents and
the Interest Rate Hedging Arrangements (as defined in the Security
Trust Deed);
"GAAP" means generally accepted accounting principles and practices in
the Netherlands;
"Guarantee" means the guarantee of the Guarantors contained in clause 9
and includes each separate or independent stipulation or agreement by
the Guarantors contained in clause 9;
7
"Guaranteed Liabilities" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantors in clause 9.2;
"Guarantors" means (i) the Original Guarantors and (ii) the Acceding
Guarantors Provided always that Radio Public shall not be a Guarantor
for the purposes of this Agreement until such time as it shall have
amended its Articles of Association to a form acceptable to the Agent
in accordance with clause 11.1(aa) which form permits Radio Public to
give the Guarantee (subject to the limits set out in clause 9.1);
"Guilder Amount" means (a) in relation to an Advance to be drawn down
in Guilders, the amount in Guilders so drawn down and (b) in relation
to an Advance to be drawn down in an Optional Currency, the amount in
Guilders which would be required to purchase the principal amount of
that Advance as determined in accordance with clause 4.6, in each case
as reduced by any repayment or prepayment under this Agreement;
"Guilders" and "NLG" mean the lawful currency for the time being of the
Netherlands and in respect of all payments to be made under this
Agreement in Guilders mean immediately available, freely transferable
cleared funds;
"HMC" means Helsinki Media Company Oy;
"Holding Company" in relation to a person, means an entity of which
that person is a Subsidiary;
"Incapacity" means, in relation to a person, the insolvency,
liquidation, dissolution, winding-up, administration, receivership or
other incapacity of that person whatsoever (and in the case of a
partnership, includes the termination or change in composition of the
partnership);
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"Information Memorandum" means the Information Memorandum dated 9th
September, 1997 and any subsequent update approved by the Parent
distributed by the Arranger at the request of the Parent in connection
with this Agreement;
"Intellectual Property Rights" means any patent, trademark, service
▇▇▇▇, registered design, trade name or copyright required to carry on
the business of any member of the Restricted Group;
"▇▇▇▇▇" means ▇▇▇▇▇ Kabel-TV A/S (now known as ▇▇▇▇▇ Multicom A/S), a
corporation incorporated in Norway (organisation no. 919 394 056)
having its corporate seat at ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ or,
following the Norwegian Merger, the successor entity of ▇▇▇▇▇ Kabel-TV
A/S;
"▇▇▇▇▇ Loan Agreement" means the loan agreement dated 18th June 1997
made between the Parent and ▇▇▇▇▇ in the amount of NOK 571,000,000;
"LIBOR" means, in relation to a particular period, the arithmetic mean
(rounded upwards, if necessary, to five decimal places) of the London
interbank offered rates for deposits of the currency in question for a
period equal to such period at or about 11 a.m. on the Quotation Date
for such period as displayed on the relevant page of the ▇▇▇▇▇▇ Monitor
Money Rates Service (or such other page as may replace such page on
such service for the purpose of displaying London interbank offered
rates of leading banks for deposits of that currency) or, if on such
date the offered rates for the relevant period of fewer than two
leading banks are so displayed, the arithmetic mean (rounded upwards,
if necessary, to five decimal places) of such rates quoted to the Agent
by each of the Reference Banks at the request of the Agent;
8
"Licences" means the Belgian Licences, the Austrian Licences and the
Norwegian Licences and, if applicable, any other licences, franchises
and permits issued to any member of the Restricted Group under any
Telecommunications and Cable Laws;
"Loan" means the aggregate principal amount owing to the Banks under
this Agreement at any relevant time (including, for the avoidance of
doubt, the aggregate principal amount of all Telekabel Notes which are
then issued and outstanding);
"Majority Banks" means at any relevant time Banks (a) the aggregate of
whose Contributions exceeds 662/3 per cent of the Advances or (b) (if
no principal amounts are outstanding under this Agreement) the
aggregate of whose Commitments exceeds 662/3 per cent of the Total
Commitments;
"Management Base Case" means the management base case financial and
operational projections for the Restricted Group produced by the Parent
in the form approved by the Agent prior to the date of this Agreement;
"Margin" means the rate per annum calculated in accordance with clause
5;
"Material Adverse Effect" means a material adverse effect on the
ability of the members of the Restricted Group (taken as a whole) or
the Parent to perform all or any of their or its respective material
obligations under or otherwise comply with the terms of this Agreement
or any Security Document;
"month" or "months" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (i) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it
shall end on the last Banking Day in such later calendar month and (ii)
if such numerically corresponding day is not a Banking Day, the period
shall end on the next following Banking Day in such later calendar
month but if there is no such Banking Day it shall end on the preceding
Banking Day and "monthly" shall be construed accordingly;
"Maturity Date" means, subject to clause 8.3, in relation to an
Advance, the last day of its Term;
"Monthly Management Accounts" means the monthly management accounts of
the Restricted Group to be delivered (or which may be delivered) to the
Agent pursuant to clause 11.1 in a form and to accounting policies
consistent with the Management Base Case and containing information of
a substantially similar type as is required by such form;
"Necessary Authorisations" means all approvals, authorisations and
licences (other than the Licences) from, all rights granted by and all
filings, registrations and agreements with any person including,
without limitation, any government or other regulatory authority
necessary in order to enable each member of the Restricted Group to
carry on such business as may be permitted by the terms of this
Agreement and which is carried on at the relevant time;
"Net Derivatives Liability" means, at any time, the net liability (if
any) at such time of the Parent and its Subsidiaries taken as a whole
in respect of Derivatives Contracts determined by reference to the
amounts (as determined by the Agent), which would be payable or
receivable by the Parent and its Subsidiaries if all Derivatives
Contracts to which the Parent and its Subsidiaries were party at such
time were terminated at such time and replaced by the obligation to
make a payment reflecting the economic burden or value to the Parent or
the relevant Subsidiary of the payment flows under those Derivatives
Contracts remaining at the time of termination;
"Net Income" means, in relation to any member of the Restricted Group
for any Six Month Period or any financial year, the net profit after
Taxes of such member of the Restricted Group
9
arising out of the use and operation of its Cable System for such Six
Month Period or financial year, as determined in accordance with GAAP
and as shown in the financial statements for such Six Month Period or
financial year prepared and delivered to the Agent pursuant to clause
11.1;
"Net Operating Cash Flow" means in respect of each Six Month Period or
financial year of any member of the Restricted Group, the Net Income of
such member of the Restricted Group (plus any depreciation,
amortisation, other non-cash charges (such as deferred taxes) and
interest and other charges in respect of Borrowed Money) for such Six
Month Period adjusted as follows:
(a) minus extraordinary income of such member of the Restricted
Group for such Six Months Period;
(b) minus any interest income of such member of the Restricted
Group for such Six Months Period;
(c) minus all sums constituting management fees accrued but not
received in cash in respect of such Six Month Period to such
member of the Restricted Group by any member of the
Unrestricted Group or by any Relevant Person; and
(d) minus any profits or losses attributable to the interest of
such member of the Restricted Group in any member of the
Unrestricted Group
as determined in accordance with GAAP and as shown in the financial
statements for such Six Month Period or such financial year prepared
and delivered to the Agent pursuant to clause 11.1;
"New ▇▇▇▇▇" shall have the meaning ascribed to such term in clause
11.2(b);
"New Norkabel" shall have the meaning ascribed to such term in clause
11.2(b);
"Norkabel" means Norkabelgruppen A/S, a corporation incorporated in
Norway (organisation no. 947 029 150) and having its corporate seat at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, whose rights and obligations
under this Agreement are to be assumed by New ▇▇▇▇▇ after the Norwegian
Merger;
"Norwegian Borrowers" means Norkabel and New ▇▇▇▇▇;
"Norwegian Krone" and "NOK" means the lawful currency for the time
being of Norway;
"Norwegian I/C Indebtedness" means the indebtedness of Norkabel under
the unsecured promissory note in the principal amount of $70,780,401.40
issued by Norkabel on 26 October 1995 as amended pursuant to an
amendment agreement dated 5th March 1997;
"Norwegian Licences" means any licence required from Norwegian public
authorities in order for Norkabel, ▇▇▇▇▇ or New ▇▇▇▇▇ (or any of their
Subsidiaries) to operate their Cable Systems;
"Norwegian Loan Amount" means the maximum of NLG 350,000,000 or the
equivalent in Optional Currencies to be lent by the Banks to the
Norwegian Borrowers for the purpose of (i) refinancing and cancellation
of the Existing Norkabel Facility, (ii) refinancing the ▇▇▇▇▇ Loan
Agreement in accordance with the terms of this Agreement and (iii)
general corporate purposes and working capital of the Norwegian
Borrowers;
"Norwegian Merger" means:
(a) the merger of Norkabelgruppen A/S, Norkabel A/S and Oslo
Kabelanlegg A/S to form New Norkabel; and
(b) the merger of New Norkabel with ▇▇▇▇▇ Kabel-TV A/S to form New
▇▇▇▇▇;
10
"Norwegian Security Documents" means the documents listed in schedule
13;
"Norwegian Share Security" means the share pledge given to the Security
Trustee by the Parent in respect of its shareholding in ▇▇▇▇▇ (and,
after the Norwegian Merger, New ▇▇▇▇▇) and, if any Advances are made to
any Norwegian Borrower or if the Philips Advance is made prior to the
Norwegian Merger, the share pledge given to the Security Trustee (i) by
▇▇▇▇▇ in respect of its shareholding in Norkabel and (ii) by Norkabel
in respect of its shareholding in Norkabel A/S, Kanal 2 A/S and Oslo
Kabelanlegg A/S in the agreed form;
"Obligor" means each Borrower and each Guarantor Provided that Radio
Public shall not be an Obligor for the purposes of this Agreement until
such time as it shall have amended its Articles of Association to a
form acceptable to the Agent in accordance with clause 11.1(aa) which
form permits Radio Public to give the Guarantee (subject to the limits
set out in clause 9.1) and Provided that Telekabel Wien shall not be an
Original Guarantor for the purposes of this Agreement until the
provisions of clause 3.6(b) have been complied with;
"Option Agreements" means the Put Option Agreement and the Call Option
Agreement;
"Option Date" means either (i) the date (falling on or prior to 29th
June, 2001) upon which the Parent exercises its rights to purchase all
of the shares in ▇▇▇▇▇ that are owned by HMC pursuant to the Call
Option Agreement or (ii) the date (falling on or prior to 15th August,
2001) upon which HMC exercises its rights to sell all of its shares in
▇▇▇▇▇ to the Parent pursuant to the Put Option Agreement, whichever is
the earlier;
"Optional Currency" means any currency, other than Guilders, which is
freely transferable, freely convertible into Guilders and dealt in on
the London Interbank Market;
"Original Guarantors" means the Parent and those Subsidiaries of the
Parent whose names, country of incorporation and principal place of
business are set out in part B of schedule 1 Provided that Radio Public
shall not be an Original Guarantor for the purposes of this Agreement
until such time as it shall have amended its Articles of Association to
a form acceptable to the Agent in accordance with clause 11.1(aa) which
form permits Radio Public to give the Guarantee (subject to the limits
set out in clause 9.1) and Provided that Telekabel Wien shall not be an
Original Guarantor for the purposes of this Agreement until the
provisions of clause 3.6(b) have been complied with;
"Parent" means United and Philips Communications B.V. a limited
liability company incorporated under the laws of the Netherlands with
its registered office at Eindhoven and its business office at (1076EE)
Amsterdam, Fredrik ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
"Permitted Borrowings" means:
(a) any Borrowed Money arising hereunder or under the Security
Documents;
(b) until the date of the first Advance hereunder, any Borrowed
Money under the Existing UPC Facility and until the date of
the first Advance to any Norwegian Borrower, any Borrowed
Money under the Existing Norkabel Facility;
(c) any Borrowed Money approved in writing by the Agent (acting on
the instructions of the Majority Banks);
(d) any Subordinated Debt;
(e) the unsecured loan of 100,000,000 Austrian Schillings made by
Bank Austria to Telekabel Wien;
(f) the letter of credit issued to ING Bank N.V. in relation to
the Option Agreements;
11
(g) any Borrowed Money arising under deferred payment agreements
provided that such Borrowed Money is deferred for no longer
than 180 days and is in an aggregate amount of not more than
NLG 60,000,000;
(h) any Borrowed Money where the debtor and creditor are both
members of the Restricted Group provided that if the creditor
is the Parent, such arrangements as may be satisfactory to the
Agent are entered into so as to ensure that all of the
Parent's right, title, benefit and interest in respect of such
Borrowed Money is assigned to the Security Trustee;
(i) any Borrowed Money not exceeding NLG 500,000 in aggregate owed
to UIH in relation to the secondment of UIH employees to the
Parent;
(j) any deposits or prepayments constituting Borrowed Money
received by a member of the Restricted Group from a subscriber
for its services;
(k) any Borrowed Money of any Unrestricted Subsidiary which
becomes a Restricted Subsidiary which is existing on the date
that such Unrestricted Subsidiary becomes a Restricted
Subsidiary; and
(l) any Borrowed Money not falling within paragraphs (a) to (k)
above (apart from (e)) and not exceeding at any time more than
NLG 30,000,000 in aggregate (or its equivalent in other
currencies);
"Permitted Disposal" means the sale by any member of the Restricted
Group of any ownership interest in any member of the Unrestricted Group
on bona fide arms' length commercial terms and any other disposal made
by any member of the Restricted Group of interests that it has in, or
of Borrowed Money it is owed by members it is owed by of the
Unrestricted Group as part of the Restructuring;
"Permitted Encumbrances" means:
(a) any Encumbrance arising hereunder or under any Security
Document;
(b) until the date of the first Advance hereunder, any Encumbrance
securing the Existing UPC Facility and until the date of the
first Advance to any Norwegian Borrower any Encumbrance
securing the Existing Norkabel Facility;
(c) until the date of the first Advance hereunder any Encumbrance
agreed to be created by the Parent over its shares in CNA in
favour of ABN AMRO Bank N.V.;
(d) any liens arising in the ordinary course of trading by way of
contract which secure Borrowed Money falling within part (g)
of the definition of "Permitted Borrowings" above or which
secure any Indebtedness under any agreement for the supply of
goods or services in respect of which payment is not deferred
for more than 90 days;
(e) any Encumbrance over any asset acquired by any member of the
Restricted Group after the date hereof so long as the same is
discharged within six months of such acquisition;
(f) any Encumbrance imposed by any taxation or governmental
authority and which is being contested in good faith;
(g) any Encumbrance approved in writing by the Agent (acting on
the instructions of the Majority Banks); and
(h) any Encumbrance not falling within paragraphs (a) to (g) above
and securing Indebtedness in aggregate not exceeding NLG
10,000,000 or its equivalent in other currencies;
12
"Permitted Payments" means, in so far as the same are applied by the
Parent in satisfaction of the obligations of the Bridge Borrower under
the Bridge Facility:
(a) the proceeds of any equity share capital that has been
subscribed for in the Parent for cash (other than pursuant to
a public offering) on terms that the same is not redeemable or
convertible into any other class of share or loan capital in
any member of the Restricted Group (in either case prior to
the date on which all amounts outstanding under this Agreement
have been irrevocably paid in full and no amounts are capable
of being so outstanding) and does not carry the right to any
dividend or other distribution (unless the same is not
prohibited by the application of clause 11.2(k)(i)), or on
such other terms as are satisfactory to the Majority Banks;
(b) dividends paid to members of the Restricted Group by members
of the Unrestricted Group;
(c) Subordinated Debt made available to the Parent; and
(d) any other payments agreed by all of the Banks;
"Philips Advance" means the Advance to be made to the Parent in
accordance with the terms of this Agreement to finance in part the
Philips Transaction;
"Philips Transaction" means the transactions to be undertaken in
accordance with and as contemplated by the terms of the Securities
Purchase and Conversion Agreement;
"Principal Agreements" means the documents and agreements listed in
schedule 9;
"Pro-forma Debt Service" means the aggregate of (i) the total forecast
amount of interest (calculated by reference to the rate of interest in
effect in relation to the relevant Borrowed Money of the Restricted
Group on the date on which the calculation falls to be made) and any
other charges payable in respect of Borrowed Money of the Restricted
Group in respect of the period of twelve months immediately following
the date on which any calculation under this Agreement falls to be
made, (ii) the principal amount of any Borrowed Money of the Restricted
Group due to be repaid in accordance with the terms of such Borrowed
Money during such period and (iii) the amount of dividends payable in
cash in respect of any preference shares issued by the Parent;
"Put Option Agreement" means the Put Option Agreement dated 8th January
1997 and made between the Parent and HMC;
"Qualifying Bank" means a person, being a bank or financial institution
(whether incorporated in the United Kingdom or elsewhere), which is
eligible to have payments made to it by any Borrower under this
Agreement without any deduction or withholding in respect of Taxes
either (i) by virtue of a double taxation treaty (assuming for this
purpose only that a direction or consent such as is referred to in
clause 8.8 has been given), or (ii) by virtue of the fact that no such
deduction or withholding is imposed in the jurisdiction to which the
relevant Borrower is subject;
"Quarterly Management Accounts" means the quarterly management accounts
of the Restricted Group to be delivered (or which may be delivered) to
the Agent pursuant to clause 11 in a form and to accounting policies
consistent with the Management Base Case and containing information of
a substantially similar type as is required by such form;
"Quarter Day" means 31st March, 30th June, 30th September and 31st
December in any year;
"Quarterly Period" means each period of approximately three months
commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
13
"Quotation Date" means, in relation to a Term or other period for which
LIBOR is to be determined, the date on which quotations would
customarily be provided by leading banks in the London Interbank Market
for deposits in the relevant currency for delivery on the first day of
that Term or other period;
"Radio Public" means Radio Public S.A., a company incorporated in
Belgium and having its registered office at ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, registered in the register of commerce of Brussels
under no. 69,463 and in the register of commerce of Leuven under no.
44697;
"Radio Public Bond" means the registered loan bonds issued by Radio
Public on 17th July 1995 with an aggregate nominal amount of BEF
3,611,250,000;
"Reduction Date" means each Quarter Day during the Reduction Period
beginning with 31st December 2001;
"Reduction Period" means the period starting on 30th September, 2001
and ending on the Termination Date;
"Reference Banks" means the principal London offices of the Agent, CIBC
Wood Gundy Plc, HSBC Investment Bank plc and/or any other Bank
appointed as such pursuant to clause 18.14;
"Relevant Date" means the earliest date after the date of the Philips
Advance on which, in respect of each of the two most recent previous
consecutive Quarterly Periods, the ratio of Total Debt to Total
Annualised Net Operating Cash Flow (calculated on the last day of each
such Quarterly Period), each as demonstrated in the Compliance
Certificate for the Quarterly Period ending immediately prior to such
date, is less than 3:1;
"Relevant ▇▇▇▇▇ Person" means, other than the members of the Restricted
Group, any shareholder of ▇▇▇▇▇ or New ▇▇▇▇▇, any Subsidiary or
Associated Company of such shareholder or any Holding Company of such
shareholder or any Associated Company of such Holding Company;
"Relevant Jurisdiction" means each jurisdiction in which a member of
the Restricted Group is incorporated or formed or in which such member
of the Restricted Group has its principal place of business or owns any
material assets;
"Relevant Person" means any shareholder of the Parent (other than
Stichting Administratiekantoor UPC B.V. or any successor entity that is
set up to administer the Stock Option Plan), any Subsidiary or
Associated Company of such shareholder or any Holding Company of such
shareholder or any Associated Company of any such Holding Company;
"Relevant Reserves" means the non-restricted capital reserves of
members of the Restricted Group incorporated in Austria created in
mid-1995 in connection with the corporate reorganisation of those
entities which reserves will be reduced during any financial year of
such entity by the amount of any amortisation of goodwill, created at
such time as a result of such reorganisation during such financial
year;
"Relevant Substance" means any substance whatsoever (whether in a solid
or liquid form or in the form of a gas or vapour and whether alone or
in combination with any other substance) or waste which is capable of
causing harm to man or any other living organism supported by the
environment, or damaging the environment or public health or welfare;
"Relevant Telekabel Person" means, other than the members of the
Restricted Group, any shareholder of any Telekabel Entity, any
Subsidiary or Associated Company of such shareholder or any Holding
Company of such shareholder or any Associated Company of such Holding
Company;
14
"Restricted Group" means the Parent and the Restricted Subsidiaries of
the Parent from time to time;
"Restricted Subsidiaries" means those Subsidiaries of the Parent whose
names, country of incorporation and principal place of business are set
out in part B of schedule 1 together with such Unrestricted
Subsidiaries that have become members of the Restricted Group pursuant
to clause 11.1(t);
"Restructuring" means the proposed transfer for cash consideration (to
be financed by the Bridge Facility or left outstanding on inter-company
account which amounts will not be repayable to the Parent or Radio
Public whilst any amounts are outstanding under the Bridge Facility
Agreement) of the interests of Radio Public and the Parent in, and of
the Borrowed Money owing to the Parent by, the Unrestricted Group to
the Bridge Borrower on terms and conditions satisfactory to all of the
Banks and, for the avoidance of doubt, if the Banks agree that the
consideration may be other than cash, provided that subordination
arrangements satisfactory to all the Banks and have been entered into
in relation to any Indebtedness owing from the Parent to the Bridge
Borrower as a result of all or part of the proceeds of the Bridge
Facility being on-lent to the Parent;
"RP Share Security" means the share pledge given to the Security
Trustee by the Parent in respect of its shareholding in Radio Public in
the agreed form;
"S.A.R." means the stock appreciation right to be issued to Philips
Media Networks B.V. by the Parent as part of the consideration for the
Philips Transaction in accordance with the terms of the Securities
Purchase and Conversion Agreement;
"Security Documents" means the Share Securities, the Austrian Security
Document, the Norwegian Security Documents and the Security Trust Deed
and all other mortgages, charges, pledges, guarantees, inter-creditor
agreements or deeds and other instruments from time to time entered
into in favour of the Agent and/or the Security Trustee and/or the
Banks by way of guarantee or other assurance and/or security for or (in
the case of inter-creditor agreements) otherwise in relation to amounts
owed to the Banks, the Arranger, the Agent or the Security Trustee in
respect of any Indebtedness of the Borrowers or the Guarantors under
this Agreement;
"Security Providers" means those persons (other than Obligors) that
have entered into any of the Security Documents from time to time;
"Securities Purchase and Conversion Agreement" means the securities
purchase and conversion agreement entered or to be entered into between
Philips Media B.V. (1), Philips Media Networks B.V. (2), UIH (3), Joint
Venture, Inc. (4) and the Parent (5), including all exhibits and
schedules thereto, in a form satisfactory to the Banks;
"Security Trustee" means the Agent in its capacity as security trustee
for the purposes of the Security Documents;
"Security Trust Deed" means the Security Trust Deed entered into or to
be entered into between the Banks, the Arrangers, the Agent, the
Security Trustee and each Obligor;
"Share Securities" means the RP Share Security, the CNA Share Security
and the Norwegian Share Security and such other pledges/charges over
shares in any of the Obligors as may be executed in favour of the
Security Trustee from time to time as security for the obligations of
the Obligors under this Agreement;
"Six Month Period" means each period of six months ending on the last
day of a calendar month;
15
"Sterling" and "(Pounds)" mean the lawful currency for the time being
of the United Kingdom and in respect of all payments to be made under
this Agreement in Sterling mean immediately available, freely
transferable cleared funds;
"Stock Option Plan" means the stock option plan adopted by the Parent
on 13th June 1996 and administered by Stichting Administratiekantoor
UPC B.V. pursuant to an agreement between Stichting
Administratiekantoor UPC B.V. and the Parent dated 13th June, 1996;
"Subordinated Creditor" means any person who has, at any relevant time,
entered into a Deed of Subordination;
"Subordinated Debt" means at any relevant time, all Borrowed Money of
the Restricted Group owed to a Subordinated Creditor;
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
either ownership of more than 50 per cent of the voting share capital
(or equivalent right of ownership) of such company or entity or power
to direct its policies and management whether by contract or otherwise;
"Substitute" has the meaning given to it in clause 17.3;
"Substitution Certificate" means a certificate substantially in the
terms of schedule 5;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"Telecommunications and Cable Laws" means all laws, statutes,
regulations and judgments relating to telecommunications, cable
television and data services applicable to any member of the Restricted
Group and/or the business carried on by any member of the Restricted
Group in any Relevant Jurisdiction;
"Telekabel Bond" means the bearer bonds 1994-2003 issued by Telekabel
Wien in an aggregate nominal amount of BEF 3,863,750,000;
"Telekabel Entities" means each of:
(a) Telekabel Wien;
(b) Telekabel-Fernsehnetz Region Baden Betriebsgesellschaft m.b.H,
a company incorporated in Austria with its corporate seat at
A-2514 Traiskirchen, ▇▇▇▇▇▇▇▇▇▇ ▇▇, and with registration
number FN 111149f;
(c) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Betriebsgesellschaft m.b.H, a company incorporated in Austria
with its corporate seat at A-2700 Wiener Neustadt,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, and with registration number FN
114170y;
(d) Telekabel Graz Gesellschaft m.b.H, a company incorporated in
Austria with its corporate seat at A-8020 Graz, Lazarettgurtel
81, and with registration number FN 55555z;
(e) Telekabel Klagenfurt Gesellschaft m.b.H, a company
incorporated in Austria, with its corporate seat at ▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Villacher Strasse 161 and with registration number
FN 99365a; and
(f) CNA;
16
"Telekabel Notes" means the bearer bonds to be issued by Telekabel Wien
in respect of each Advance made to Telekabel Wien, in the form set out
in Schedule 14;
"Telekabel Wien" means Telekabel Wien Gesellschaft m.b.H. a company
incorporated in Austria with its corporate seat at A-1100 Wien,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, and with registration number FN 84116 a;
"Term" means, in relation to an Advance, the period for which that
Advance is, or is to be, borrowed, as specified in the Drawdown Notice
for such Advance;
"Termination Date" means 30th September, 2006;
"Total Annualised Net Operating Cash Flow" means twice the consolidated
Net Operating Cash Flow for all of the members of the Restricted Group
in respect of the most recently ended Six Month Period for the
Restricted Group in respect of which Monthly Management Accounts have
been delivered to the Agent under this Agreement;
"Total Commitments" means at any relevant time the total of the
Commitments of all the Banks at such time;
"Total Debt" means the principal amount of all Borrowed Money of the
Restricted Group (other than Borrowed Money under the Bridge Facility);
"Total Debt Interest Charges" means, in relation to any period, the
total amount of all interest, fees and commissions accruing in respect
of Total Debt during such period (having taken into account the effect
of any relevant hedging arrangements);
"UIH" means United International Holdings, Inc. a corporation
incorporated in the State of Delaware, United States of America and
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇.;
"Unrestricted Group" means the Unrestricted Subsidiaries and the
Unrestricted Undertakings;
"Unrestricted Subsidiaries" means those Subsidiaries of the Parent
which are not Restricted Subsidiaries;
"Unrestricted Undertakings" means any person (other than the Restricted
Subsidiaries and Unrestricted Subsidiaries) in which UPC has the
beneficial ownership of 10 per cent. or more of the equity securities
of such person (either individually or as part of a group); and
"UPC PIK Notes" means all of the outstanding 9.96% Series A Convertible
Notes due 2005 and all of the 10.03% Series B Convertible Notes due
2005 issued by the Parent to Philips Media B.V.
1.3 Headings
--------
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
-----------------------------
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
17
(b) references to (or to any specified provision of) this
Agreement or any other document shall be construed as
references to this Agreement, that provision or that document
as in force for the time being and as from time to time
amended in accordance with its terms, or, as the case may be,
with the agreement of the relevant parties and (where such
consent is, by the terms of this Agreement or the relevant
document, required to be obtained as a condition to such
amendment being permitted) the prior written consent of the
Agent, all of the Banks or the Majority Banks (as the case may
be);
(c) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency,
authority, central bank or government department or any
self-regulatory or other national or supra-national authority;
(d) words importing the plural shall include the singular and vice
versa;
(e) references to a time of day are to London time;
(f) references to a "person" shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any of its
agencies;
(g) references to "assets" include all or part of any business,
undertaking, real property, personal property, uncalled
capital and any rights (whether actual or contingent, present
or future) to receive, or require delivery of, any of the
foregoing;
(h) references to a "guarantee" include references to an indemnity
or other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "guaranteed" shall be construed accordingly;
(i) references to the "equivalent" of an amount specified in a
particular currency (the "specified currency amount") shall be
construed as a reference to the amount of the other relevant
currency which can be purchased with the specified currency
amount in the London foreign exchange market at or about 11
a.m. on the day on which the calculation falls to be made for
spot delivery as determined by the Agent;
(j) references to the "agreed form" means, in relation to any
document, the form of such document as shall have been agreed
between the Parent and the Agent (acting for and on behalf of
all of the Banks);
(k) references to any enactment shall be deemed to include
references to such enactment as re-enacted, amended or
extended; and
(l) references to this "Agreement" include all Telekabel Notes
issued under this Agreement and references to sums payable
under this Agreement include sums payable under all Telekabel
Notes.
1.5 Majority Banks
--------------
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all the
Banks shall have received prior notice of the matter on which such
opinion, consent, request or instructions are required to
18
be obtained and the relevant majority of Banks shall have given or
issued such opinion, consent, request or instructions but so that (as
between the Borrowers and the Banks), once informed by the Agent that
such opinion, consent, request or instructions have been given, the
Borrowers shall be entitled (and bound) to assume that such notice
shall have been duly received by each Bank and that the relevant
majority shall have been obtained to constitute Majority Banks whether
or not this is in fact the case.
1.6 Agent's opinion
---------------
Where this Agreement provides for the Agent's opinion to determine
whether any matter would or is reasonably likely to have a Material
Adverse Effect and/or a material adverse effect, as the case may be,
the Agent shall act in accordance with the instructions of the Majority
Banks in making such determination.
19
2 The Facility
------------
2.1 Amount
------
The Banks, relying upon each of the representations and warranties in
clause 10 agree to lend to the Borrowers upon and subject to the terms
of this Agreement the principal sum of up to NLG 1,100,000,000 or the
equivalent in Optional Currencies (of which, for the avoidance of
doubt, the Norwegian Borrowers may not borrow more than the Norwegian
Loan Amount and which shall include, for the avoidance of doubt, the
amounts borrowed by Telekabel Wien against the issue of Telekabel
Notes). The obligation of each Bank under this Agreement shall be to
contribute that proportion of each Advance which, as at the Drawdown
Date of such Advance, its Commitment bears to the Total Commitments.
2.2 Obligations several
-------------------
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
other Bank, the Arranger, the Security Trustee, the Agent or any
Obligor of any of their respective obligations or liabilities under
this Agreement nor shall the Agent, the Security Trustee or the
Arranger be responsible for the obligations of any Bank (except for its
own obligations, if any, as a Bank) nor shall any Bank be responsible
for the obligations of any other Bank under this Agreement.
2.3 Interests several
-----------------
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Majority Banks) the interests of the Agent, the Security Trustee,
the Arranger and the Banks are several and the amount due to the Agent
(for its own account), to the Arranger, to the Security Trustee and to
each Bank is a separate and independent debt. The Agent, the Security
Trustee, the Arranger and each Bank shall have the right to protect and
enforce its rights arising out of this Agreement and it shall not be
necessary for the Agent, the Security Trustee, the Arranger or any Bank
(as the case may be) to be joined as an additional party in any
proceedings for this purpose.
2.4 Telekabel Wien's interests several
----------------------------------
For the avoidance of doubt, every obligation of Telekabel Wien under
this Agreement is several and it is acknowledged by all parties that
Telekabel Wien save for its obligations under the Guarantee, is not
liable for any obligations of any other Obligor under this Agreement.
20
3 Conditions
----------
3.1 Documents and evidence
----------------------
(a) Subject to clause 3.1(b) and clause 3.1(c), the obligation of
each Bank to make its Commitment available shall be subject to
the condition that the Agent, or its duly authorised
representative, shall have received, not later than two
Banking Days before the day on which the first Advance is to
be made, the documents and evidence specified in part A of
schedule 3 in form and substance satisfactory to all of the
Banks.
(b) The obligation of each Bank to contribute to the Philips
Advance is subject to the further condition that the Agent, or
its duly authorised representative, shall have received, no
later than three Banking Days before the day on which the
Drawdown Notice in respect of the Philips Advance is given,
the documents and evidence specified in part B of schedule 3
in form and substance satisfactory to all of the Banks
together with either the documents and evidence set out in
schedule 3 part C or schedule 3 part D each in form and
substance satisfactory to all the Banks.
(c) The obligation of each Bank to contribute to the first Advance
to the Norwegian Borrowers shall be subject to the further
condition that the Agent, or its duly authorised
representative, shall have received, no later than three
Banking Days before the day on which the Drawdown Notice in
respect of such Advance is given, (i) (if the Norwegian Merger
has occurred by such date), the documents and evidence
specified in part C of schedule 3 or (ii) (if the Norwegian
Merger has not occurred by such date) the documents and
evidence set out in schedule 3 part D, in each case in form
and substance satisfactory to the Banks.
3.2 General conditions precedent
----------------------------
If, following the making of an Advance, the Loan will exceed the Loan
immediately prior to the making of such Advance (taking into account
any other Advances or part thereof scheduled to be made or repaid or
prepaid on the date of such Advance) the obligation of each Bank to
contribute to any Advance is subject to the further conditions that at
the date of each Drawdown Notice and on each Drawdown Date:
(a) the representations and warranties set out in clause 10.1 to
be repeated in accordance with clause 10.3 are true and
correct on and as of each such date as if each were made with
respect to the facts and circumstances existing at such date;
and
(b) no Default shall have occurred and be continuing or would
result from the making of such Advance.
However, in the case of the drawing of an Advance which would not, if
drawn, cause the aggregate Guilder Amount of Advances outstanding after
such drawing to exceed the aggregate Guilder Amount of Advances
outstanding prior to that drawing (after taking account of any
repayment made on the date of such drawing):
(i) clause 3.2(a) shall apply only if the incorrectness would be
reasonably likely to have a material adverse effect on the
ability of any Borrower to perform its obligations under this
Agreement or on the financial position of the Parent and its
Subsidiaries taken as a whole; and
(ii) clause 3.2(b) shall not apply if the Term of the relevant
Advance is one month.
Nothing in this clause 3.2 shall be construed as constituting a waiver
of any right of the Banks (including, without limitation, their rights
under clause 13.2) arising from any Event of Default
21
which shall have occurred and be outstanding at the time of the drawing
of the relevant Advance.
3.3 Waiver of conditions precedent
------------------------------
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of all of the Banks in respect of the first Advance, the
Philips Advance, and the first Advance to the Norwegian Borrowers and
on the instructions of the Majority Banks with respect to any other
Advances without prejudicing the right of the Agent acting on such
instructions to require fulfilment of such conditions in whole or in
part in respect of any other Advance.
3.4 Notification
------------
The Agent shall notify the Banks and the Parent promptly after receipt
by it of the documents and evidence referred to in clause 3.1 in form
and substance satisfactory to it.
3.5 New ▇▇▇▇▇
---------
(a) Contemporaneously with the completion of the Norwegian Merger,
the Parent shall procure that New ▇▇▇▇▇ and/or the Parent
delivers to the Agent the documents and evidence listed in
part B of schedule 11 together with such other documents,
evidence and legal opinions as the Agent shall require so that
New ▇▇▇▇▇ assumes all obligations then owed to the Agent, the
Arranger, the Security Trustee and the Banks by Norkabel
provided that such obligations shall not exceed the Norwegian
Loan Amount.
(b) On confirmation by the Agent to the Banks that it has received
all of the documents referred to in paragraph (a) above in
form and substance satisfactory to it, New ▇▇▇▇▇ shall become
the sole Norwegian Borrower under this Agreement provided that
it shall not be permitted to borrow in excess of the Norwegian
Loan Amount and such of Norkabel and its Subsidiaries as were,
prior to the date of the Norwegian Merger, Borrowers and/or
Guarantors shall cease to be Borrowers and/or Guarantors under
this Agreement. Delivery of a Deed of Borrower Accession
executed by the Parent and New ▇▇▇▇▇ constitutes confirmation
by New ▇▇▇▇▇ and the Parent that the representations and
warranties set out in clause 10 and to be made by them on the
date of the Deed of Borrower Accession are correct, as if made
with reference to the facts and circumstances then existing.
Each Bank irrevocably authorises the Agent to execute any duly
executed Deed of Borrower Accession on its behalf and each
other Obligor irrevocably authorises the Parent to execute any
Deed of Borrower Accession on its behalf.
3.6 Conditions subsequent
---------------------
The Parent undertakes to procure that:
(a) prior to the earlier to occur of the date of the Philips
Advance or the date of the first Advance made to the Norwegian
Borrowers the constitutional documents of CNA shall be amended
to a form satisfactory to the Agent; and
(b) (i) resolutions of the supervisory board of Telekabel Wien
shall be provided to the Agent approving the terms and
conditions of this Agreement (as amended) and the
Austrian Security Document on or before 12th December
1997; and
(ii) on or before 12th December, 1997 there is delivered to
the Agent the Austrian Security Document and such other
documents as the Agent may require, each
22
duly executed and delivered by Telekabel Wien, together
with such other documents, evidence and legal opinions
as the Agent shall require to ensure that Telekabel Wien
becomes a Borrower and a Guarantor under this Agreement.
Provided that if the Parent fails to comply with either of the above
undertakings, in whole or in part, without prejudice to any other
rights or remedies available to the Agent, the Security Trustee, the
Arranger, the Banks (or any of them) such failure shall constitute an
immediate Event of Default and the Agent shall be entitled to exercise
its rights under clause 13.2. Provided further that until such time as
the undertakings set out in clause 3.6 have been complied with, save
with the agreement of all of the Banks, none of the Banks shall be
under any obligation to make any Advance other than the Advance
referred to in clause 4.9(A).
23
4 Advances; Currencies
--------------------
4.1 Maximum Outstandings
--------------------
(a) Prior to the date of the Philips Advance and subject to the
provisions of clause 4.10, the principal amount of Advances
outstanding under the Facility shall not exceed (i) if the
first Advance to a Norwegian Borrower shall not have been
made, NLG 360,000,000 or, (ii) if the first Advance to a
Norwegian Borrower shall have been made, NLG 550,000,000, or,
in each case, the equivalent in Optional Currencies. On each
Quarter Day and each Drawdown Date prior to the date on which
the Philips Advance is made, the amount of Total Debt shall
not exceed five times Total Annualised Net Operating Cash Flow
(as determined by reference to the most recently delivered
Monthly Management Accounts at such time) and no Advances
(other than the Philips Advance in accordance with the
provisions of clause 4.10) shall be made if, following the
making of such Advance, such limit would be exceeded.
(b) On and from the date of the Philips Advance, the principal
amount of Advances outstanding under the Facility shall not
exceed NLG 1,100,000,000 or the equivalent in Optional
Currencies. On each Quarter Day and each Drawdown Date falling
within the period set out in column (I) below, the amount of
Total Debt shall not exceed the multiple of Cable TV
Annualised Net Operating Cash Flow or Total Annualised Net
Operating Cash Flow, as the case may be, (each as determined
by reference to the most recently delivered Monthly Management
Accounts at such time) set out against such period in column
(II) and column (III) below, and no Advances shall be made if,
following the making of such Advance, such limit would be
exceeded:
=======================================================================================================
(I) (II) (III)
Period Multiple of Cable TV Multiple of Total
Annualised Net Annualised Net
Operating Cash Flow Operating Cash Flow
-------------------------------------------------------------------------------------------------------
Prior to 31st December 1998 7 8.25
-------------------------------------------------------------------------------------------------------
1st January 1999 to 30th June 1999 n/a 6.75
-------------------------------------------------------------------------------------------------------
1st July 1999 to 31st December 1999 n/a 6.5
-------------------------------------------------------------------------------------------------------
1st January 2000 to 31st December 2000 n/a 5.5
-------------------------------------------------------------------------------------------------------
1st January 2001 to 31st December 2001 n/a 4
-------------------------------------------------------------------------------------------------------
1st January 2002 and thereafter n/a 3
=======================================================================================================
4.2 Drawdown
--------
Subject to the terms and conditions of this Agreement, an Advance shall
be made available to a Borrower following receipt by the Agent from
such Borrower of a Drawdown Notice not later than 10 a.m. on the third
Banking Day before the proposed Drawdown Date. A Drawdown Notice shall
be effective on actual receipt by the Agent and, once given, shall,
subject as provided in clause 5.6(a), be irrevocable.
4.3 Amount and Term
---------------
Each Advance shall be:
(a) of a Guilder Amount which is a minimum of NLG 10,000,000 and,
in the case of Advances to be made in Guilders, an integral
multiple of NLG 5,000,000, or the balance of the Commitments;
24
(b) denominated in one currency only; and
(c) borrowed for a Term of one, two, three or six months (or, with
the prior agreement of all of the Banks, such other period as
the Parent may select) ending on or before the Termination
Date.
4.4 Selection of currencies
-----------------------
Subject to the provisions of clause 4.5, if a Borrower so requests in
the Drawdown Notice for an Advance, such Advance may be drawn down in
an Optional Currency.
4.5 Limit on currencies; non-availability
-------------------------------------
An Advance may not be drawn down in an Optional Currency if (a) in
consequence thereof there would be Advances outstanding in more than 5
different currencies or (b) any Bank reasonably determines that
deposits of such Optional Currency are not readily available to such
Bank in an amount comparable with such Bank's portion of the relevant
Advance and so notifies the Agent not later than 3 p.m. on the third
Banking Day before the proposed Drawdown Date or (c) the Agent
determines after consultation with the Reference Banks (which
determination shall be conclusive) at any time prior to 10 a.m. (local
time in the place of payment) on the Drawdown Date that by reason of
any change in currency availability, currency exchange rates or
exchange controls it is or will be impracticable for the relevant
Advance to be drawn down in that Optional Currency. Accordingly, in any
such event, the relevant Advance shall be drawn down in Guilders.
4.6 Currency Amounts
----------------
If an Advance is to be drawn down in an Optional Currency, the Banks
shall, subject to clause 3.2, advance to the relevant Borrower on
drawdown of such Advance, the amount of such Optional Currency
requested. The Guilder Amount of such Advance shall be the amount of
Guilders (as determined by the Agent) which would be required to
purchase the amount of such Optional Currency at the average of the
spot rates of exchange quoted to the Agent by the Reference Banks to be
ruling in the London Foreign Exchange Market for the purchase of such
Optional Currency with Guilders on receipt of the relevant Drawdown
Notice. If an Advance is to be drawn down in Guilders, the Banks shall,
subject to clause 3.2, advance to the relevant Borrower on drawdown of
such Advance, the Guilder Amount of such Advance.
4.7 Notification to Banks
---------------------
As soon as practicable after receipt of a Drawdown Notice complying
with the terms of this Agreement the Agent shall notify each Bank and,
subject to clause 3, each of the Banks shall on the Drawdown Date make
available to the Agent its portion of the relevant Advance in
accordance with clause 8.2. If an Advance is to be drawn down in an
Optional Currency the amount to be advanced to the relevant Borrower
under this clause 4.7 shall be the amount of such Optional Currency
specified in the relevant Drawdown Notice. If an Advance is to be drawn
down in Guilders, the amount to be advanced to the relevant Borrower
under this clause 4.7 shall be the Guilder Amount of that Advance.
4.8 Application of proceeds
-----------------------
Without prejudice to the Borrowers' obligations under clause 11.1(c),
or clause 4.9 and 4.10, none of the Banks, the Arranger, the Security
Trustee or the Agent shall have any responsibility for the application
of the proceeds of any Advance by any Borrower.
4.9 Initial Advances
----------------
(A) Refinancing the Existing UPC Facility
-------------------------------------
25
Subject to the provisions of clause 3.1(a), the Borrowers
undertake to comply with the terms of this clause 4 so as to
ensure that a Drawdown Notice is delivered for an Advance to
be made on or before 10th October 1997 (or such other date as
may be agreed by the Agent) by the Parent in an amount not
less than the aggregate of the amount certified to the Parent
by the Agent to be equal to the principal amount outstanding
under the Existing UPC Facility together with all unpaid
interest thereon and any other amounts payable in relation
thereto.
The Borrowers irrevocably authorise the Agent, and the Agent
agrees, to apply that part of such Advance as is equal to the
amount so certified in discharge of the Parent's obligations
in respect of the Existing UPC Facility and the Agent's
obligations under clause 8.2 in respect of such Advance shall
be to remit the balance following such discharge (if any) to
the Parent forthwith.
Unless and until the Existing UPC Facility has been repaid in
full and cancelled and all (if any) security granted in
connection therewith has been unconditionally discharged in
full to the satisfaction of the Agent or has been assigned or
transferred to the Security Trustee, no further Advances may
be made to the Borrowers hereunder.
(B) Refinancing the Existing Norkabel Facility
------------------------------------------
Subject to the provisions of clause 3.1(a) and clause 3.1(c),
the Borrowers undertake to comply with the terms of this
clause 4 so as to ensure that, on the earliest of (i) the date
of the Norwegian Merger, (ii) the date falling three Banking
Days prior to the date of the Philips Advance or (iii) 12th
December 1997 (or such other date as may be agreed by the
Agent) a Drawdown Notice is delivered to the Agent by (i) (if
the Norwegian Merger has not occurred) Norkabel or (ii) (if
the Norwegian Merger has occurred) New ▇▇▇▇▇ in an amount not
less than the aggregate of the principal amount certified by
the Agent to the Parent and the relevant Norwegian Borrower to
be equal to the principal amount outstanding under the
Existing Norkabel Facility together with all unpaid interest
thereon and any other amounts payable in relation thereto.
The Borrowers irrevocably authorise the Agent, and the Agent
agrees, to apply that part of such Advance as is equal to the
amount so certified in discharge of Norkabel's obligations in
respect of the Existing Norkabel Facility, and the Agent's
obligations under clause 8.2 in respect of such Advance shall
be to remit the balance following such discharge (if any) to
the relevant Norwegian Borrower forthwith.
After the earliest of (i) the date of the Norwegian Merger,
(ii) the date falling three Banking Days prior to the date of
the Philips Advance or (iii) 12th December 1997 (or such other
date as may be agreed by the Agent), unless and until the
Existing Norkabel Facility has been repaid in full and
cancelled and all or any security granted in connection
therewith has been assigned or transferred to the Security
Trustee to the satisfaction of the Agent no further Advances
may be made if, following the making of such Advance, the Loan
would exceed the Loan immediately prior to such Advance.
4.10 Philips Advance
---------------
(a) Subject to the provisions of clause 3.1(b), the Borrowers
undertake to comply with the terms of this clause 4 so as to
ensure that the Philips Advance is made on or before the date
falling 90 days after the date of the first Advance (or such
other date as may be agreed by the Agent acting on the
instructions of all of the Banks) and to ensure that the
Philips Advance is in an amount not less than an amount which,
when aggregated with the amount of the Bridge Facility which
the Bridge Borrower has used in satisfaction of the
consideration payable to the Parent for the purchase of the
interests in the Unrestricted Group pursuant to the
Restructuring and any other funds available to the Parent (if
any), is certified by the Parent to the Agent to be sufficient
to consummate
26
the Philips Transaction in accordance with the terms of the
Securities Purchase and Conversion Agreement.
The Borrowers irrevocably authorise the Agent to apply that
part of the Philips Advance so certified in discharge of the
Parent's obligations in respect of the Securities Purchase and
Conversion Agreement and the Agent's obligations under clause
8.2 in respect of the Philips Advance shall be to remit the
balance following such discharge (if any) to the Parent
forthwith. Unless and until the Philips Advance has been made
no further Advances may be made if, following the making of
such Advance, the Loan would exceed the amount set out in
clause 4.1(a).
(b) If the Philips Advance has not been made on or before the date
falling 90 days after the date of the first Advance made under
the Facility (or such other date as may be agreed by the Agent
acting on the instructions of all of the Banks), then the
Agent (acting on the instructions of all of the Banks) and the
Parent shall seek to renegotiate the terms and conditions of
the Facility in good faith. If the Philips Advance has not
been made on or before the date falling 180 days after the
date of the first Advance (or such other date as may be agreed
by the Agent acting on the instructions of all of the Banks)
then there shall be an Event of Default and the Agent shall be
entitled to exercise all of its rights under clause 13.2.
4.11 Telekabel Bond
--------------
Subject to the Agent receiving confirmation that the Telekabel Bond has
been delivered to the Parent, and subject to the provisions of clause
3.6, on the date that the Philips Advance is made (or as soon as
possible thereafter), the Borrowers undertake to comply with the terms
of this clause 4 so as to ensure that an Advance is made to Telekabel
Wien (the "Telekabel Advance") in an amount not less than the amount
equal to the principal amount outstanding under the Telekabel Bond
together with all unpaid interest thereon and any other amounts payable
in relation thereto.
The Borrowers irrevocably authorise the Agent, and the Agent agrees, to
apply that part of the Telekabel Advance as is equal to the amount
required to redeem the Telekabel Bond in full in discharge of Telekabel
Wien obligations in respect of the Telekabel Bond and the Agent's
obligations under clause 8.2 in respect of such Advance shall be to
remit the balance following such discharge (if any) to Telekabel Wien
forthwith. Following the date of the Philips Advance unless and until
the Telekabel Advance has been made, no further Advances (other than
the Advance referred to in clause 4.9(B)) may be made if, following the
making of such Advance, the Loan would exceed the Loan immediately
prior to the making of such Advance.
4.12 Subsidiary Drawings
-------------------
The Parent shall not be permitted to on-lend any funds drawn down by
the Parent under the Facility to Telekabel Wien or the Norwegian
Borrowers without the consent of the Majority Banks. Telekabel Wien and
the Norwegian Borrowers undertake that such funds as they may
respectively require for the purposes set out in clause 1.1 shall be
drawn by them direct from the Banks in accordance with the terms of
this Agreement (provided that, in the case of the Norwegian Borrowers,
the Norwegian Loan Amount shall not be exceeded).
4.13 Refinancing the ▇▇▇▇▇ Loan Agreement
------------------------------------
Subject to the provisions of clause 3.1 and provided that the Agent
shall have received the documents and evidence specified in part B of
schedule 11, the Parent shall procure that on or prior to 30th June,
2000 New ▇▇▇▇▇ shall refinance the principal amount of the Indebtedness
of New ▇▇▇▇▇ under the ▇▇▇▇▇ Loan Agreement as at the date of this
Agreement by Advances under this Agreement (the "New ▇▇▇▇▇ Advances")
or, if this is not legally possible at such time, New ▇▇▇▇▇ shall have
entered into such other arrangements as are acceptable to the Majority
Banks.
27
The Borrowers irrevocably authorise the Agent, and the Agent agrees, to
apply the New ▇▇▇▇▇ Advances in discharge of New ▇▇▇▇▇'▇ obligations in
respect of the ▇▇▇▇▇ Loan Agreement and the Agent's obligations under
clause 8.2 in respect of such Advance shall be to remit the balance
following such discharge (if any) to New ▇▇▇▇▇ forthwith.
The first New ▇▇▇▇▇ Advance shall not be made unless the Parent has
provided the Agent with a legal opinion of Norwegian counsel,
acceptable to the Banks stating that the making of such New ▇▇▇▇▇
Advance will not adversely affect the security position of the Banks or
the liability of the Norwegian Borrower (or any remaining Norwegian
Guarantors, as the case may be) under the Agreement and will not
contravene any provision of Norwegian law. If the Parent is unable to
provide such legal opinion, the Parent and New ▇▇▇▇▇ shall enter into
such other arrangements as may be acceptable to the Majority Banks.
4.14 Telekabel Notes
---------------
Each borrowing of a portion of the Commitments to be made by Telekabel
Wien under this Agreement shall be made against the issue by Telekabel
Wien of a Telekabel Note to the Agent.
At the same time as and together with a Drawdown Notice in connection
with any such Advance to be made to Telekabel Wien, Telekabel Wien
shall deliver to the Agent an original Telekabel Note the details set
out in which shall correspond to the details of the Advance described
in such Drawdown Notice.
The Banks shall be under no obligation to make any funds available to
Telekabel Wien unless the Agent shall have received such Telekabel Note
in a form satisfactory to it.
Telekabel Wien hereby authorises the Agent to complete the provisions
in each Telekabel Note relating to the calculation of interest payable
in connection therewith.
On the condition that the relevant Telekabel Note has been duly
completed and executed and provided that the conditions set out in
clause 3 have been satisfied, the Banks shall contribute to the Advance
to be made to Telekabel Wien against the relevant Telekabel Note in
accordance with the provisions of clauses 4.2 to 4.8 (inclusive).
The Agent shall hold each Telekabel Note for and on behalf of the Banks
and shall not part with possession of such Telekabel Note without the
consent of the Banks. All payments received by the Agent under any
Telekabel Note shall be applied in accordance with the provisions of
clause 8. For the avoidance of doubt, for the purposes of the Security
Trust Deed, all indebtedness of Telekabel Wien under Telekabel Notes
shall constitute "Senior Indebtedness" (as defined in the Security
Trust Deed).
The Agent shall be entitled to place all Telekabel Notes deposited with
it in any safe deposit, safe or receptacle selected by the Agent and
the Agent shall not be responsible for any loss incurred in connection
with any such deposit.
5 Interest; alternative interest rates
------------------------------------
5.1 Normal interest rate
--------------------
The Borrowers shall pay interest on each Advance made to them on such
Advance's Maturity Date (or, in the case of an Advance having a Term of
more than six months, by instalments, every six months from the
Drawdown Date of such Advance and on the relevant Maturity Date) at the
rate per annum determined by the Agent to be the aggregate of (a) the
applicable Margin, (b) (in the case of Advances in Sterling) the
Additional Cost and (c) LIBOR.
5.2 Applicable Margin
-----------------
28
The Margin in relation to any Advance and any unpaid sum due under this
Agreement under clause 5.3 shall (subject to the proviso below) be the
rate set out in column (I) below against the ratio of Total Debt to
Total Annualised Net Operating Cash Flow (as shown in the most recently
delivered Quarterly Management Accounts and Compliance Certificate
delivered to the Agent prior to, first day of the relevant Term or, in
relation to any unpaid sum due under this Agreement under clause 5.3,
the first day of the relevant period determined in accordance with
clause 5.3 set out in column (II) below as at the first day of the Term
of such Advance or period in respect of which interest is payable in
accordance with clause 5.3 (as the case may be):
(I) (II)
Rate (per cent. Ratio of Total Debt to
--------------- ----------------------
per annum) Total Annualised
---------- ----------------
Net Operating Cash Flow
-----------------------
2.00 8:1 or greater
1.75 at least 6.5:1 but less than 8:1
1.25 at least 5:1 but less than 6.5:1
1.00 at least 4:1 but less than 5:1
0.75 at least 3:1 but less than 4:1
0.50 less than 3:1
provided that (i) if on the relevant date on which the Margin is to be
determined the Philips Advance has not been made then the Margin for
such Advance and/or such unpaid sum shall be 2.00 per cent. per annum,
and (ii) until such time as the Parent shall have delivered to the
Agent Quarterly Management Accounts (relating to any Quarter ending on
31st December 1997 or later) and a Compliance Certificate relating
thereto which indicate that a lower Margin is applicable, the Margin
for each Advance shall be 2.00 per cent. per annum.
5.3 Interest for late payment
-------------------------
If any Borrower fails to pay any sum (including, without limitation,
any sum payable pursuant to this clause 5.3 on its due date for payment
under this Agreement) the relevant Borrower shall pay interest on such
sum from the due date up to the date of actual payment (as well after
as before judgment) at a rate determined by the Agent pursuant to this
clause 5.3. The period beginning on such due date and ending on such
date of payment shall be divided into successive periods of not more
than three months as selected by the Agent (after consultation with the
Banks so far as reasonably practicable in the circumstances) each of
which (other than the first, which shall commence on such due date)
shall commence on the last day of the preceding such period. The rate
of interest applicable to each such period shall be the aggregate (as
determined by the Agent) of (a) one per cent per annum, (b) the
applicable Margin, (c) (in the case of amounts in Sterling) the
Additional Cost and (d) LIBOR, unless such unpaid sum is an amount of
principal which shall have become due and payable, by reason of a
declaration by the Agent under clause 13.2(b) or a prepayment pursuant
to clauses 6.3 or 15.1, prior to the Maturity Date relating thereto, in
which case the first such period selected by the Agent shall end on
such Maturity Date and interest shall be payable on such unpaid sum
during such period at a rate one per cent above the rate applicable
thereto immediately before it shall have become so due and payable.
Interest under this clause 5.3 shall be due and payable on the last day
of each period determined by the Agent pursuant to this clause 5.3 or,
if earlier, on the date on which the sum in respect of which such
interest is accruing shall actually be paid. If, for the reasons
specified in clause 5.6(a)(i) or 5.6(a)(ii), the Agent is unable to
determine a rate in accordance with the foregoing provisions of this
clause 5.3, each Bank shall promptly notify the Agent of the cost of
funds to such Bank and interest on any sum not paid on its due date for
payment shall be calculated for each Bank at a rate determined by the
Agent to be one per cent per annum above the aggregate of the Margin
and the cost of funds (including, in the case of amounts in Sterling,
Additional Cost) to such Bank.
5.4 Notification of interest rate
-----------------------------
29
The Agent shall notify the Parent, the relevant Borrower and the Banks
promptly of each rate of interest determined by it under this clause 5.
5.5 Reference Bank quotations
-------------------------
If any Reference Bank is unable or otherwise fails to furnish a
quotation for the purpose of calculating LIBOR, the interest rate for
the relevant Term or other period shall be determined, subject to
clause 5.6, on the basis of the quotations furnished by the remaining
Reference Banks.
5.6 Market disruption; non-availability
-----------------------------------
(a) If and whenever, at any time prior to the making of an Advance
the London interbank offered rates for deposits of the
currency in question for the relevant period are not displayed
on the relevant page of the ▇▇▇▇▇▇ Monitor Money Rates Service
(or any replacement therefor) and:
(i) the Agent shall have determined, after consultation
with the Reference Banks (which determination shall,
in the absence of manifest error, be conclusive),
that adequate and fair means do not exist for
ascertaining LIBOR during such Term; or
(ii) none or only one of the Reference Banks supplies the
Agent with a quotation for the purpose of calculating
LIBOR; or
(iii) the Agent shall have received notification from Banks
with Contributions aggregating not less than
one-third of the total of the Advances (or, prior to
the first Drawdown Date, Commitments aggregating not
less than one-third of the Total Commitments) that
deposits in Guilders are not available to such Banks
in the London Interbank Market in the ordinary course
of business in sufficient amounts to fund their
Contributions to such Advance or that LIBOR does not
accurately reflect the cost to such Banks of
obtaining such deposits;
the Agent shall forthwith give notice (a "Determination
Notice") to the Parent and to each of the Banks and such
Advance shall not be made. A Determination Notice shall
contain particulars of the relevant circumstances giving rise
to its issue.
(b) After the giving of any Determination Notice the undrawn
amount of the Total Commitments shall not be borrowed until
the circumstances giving rise to the issue of the
Determination Notice have ceased.
(c) During the period of 10 days after any Determination Notice
has been given by the Agent under clause 5.6(a), each Bank
shall certify an alternative basis (the "Substitute Basis")
for making available or, as the case may be, maintaining its
contribution to the Advance. The Substitute Basis may (without
limitation) include alternative interest periods, alternative
currencies or alternative rates of interest but shall include
a margin above the cost of funds including Additional Cost, if
any, to such Bank equivalent to the Margin. Each Substitute
Basis so certified shall be binding upon the Borrowers and
shall take effect in accordance with its terms from the date
specified in the Determination Notice until such time as none
of the circumstances specified in clause 5.6 (a) continues to
exist whereupon the normal interest rate fixing provisions of
this Agreement shall apply.
30
6 Repayment, prepayment and cancellation
--------------------------------------
6.1 Repayment
---------
The Borrowers shall repay each Advance on its Maturity Date in the
currency in which it is denominated. If an advance (the "new Advance")
is to be made on a day on which another Advance (the "maturing
Advance") denominated in the same currency as the new Advance is due to
be repaid by the same Borrower then, subject to the terms of this
Agreement and so long as the conditions referred to in clause 3.2 shall
have been satisfied in relation to the new Advance, (a) the maturing
Advance shall be deemed to have been repaid on its Maturity Date either
in whole (if the new Advance is equal to or greater than the maturing
Advance) or in part (if the new Advance is less than the maturing
Advance) and (b) to the extent that the maturing Advance is so deemed
to have been repaid, the principal amount of the new Advance to be made
on such date shall be deemed to have been credited to the account of
the relevant Borrower by the Agent on behalf of the Banks in accordance
with the terms of this Agreement and the Banks shall only be obliged to
make available to the relevant Borrower pursuant to clause 4.6 a
principal amount equal to the amount by which the new Advance exceeds
the maturing Advance. On the Termination Date, all outstanding Advances
and other sums (if any) then owing under this Agreement shall in any
event be repaid or paid in full.
6.2 Voluntary prepayment
--------------------
The Borrowers may, without premium or penalty, prepay any Advance (in
whole or in part provided that, in the case of part, the Guilder Amount
of such part is a minimum of NLG 10,000,000 and, in the case of
Advances made in Guilders, an integral multiple of NLG 10,000,000) at
any time subject to the provisions of this clause 6.
6.3 Additional voluntary prepayment
-------------------------------
Any Borrower may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under
clauses 5.6, 8.5 and 15.2, the Contribution of any Bank to which such
Borrower shall have become obliged to pay additional amounts under
clause 5.6, 8.5 or 15.2. Upon any notice of such prepayment being
given, the Commitment of the relevant Bank shall be reduced to zero and
the amount of the Total Commitments shall be reduced accordingly.
6.4 Amounts payable on prepayment
-----------------------------
Any prepayment under this Agreement shall be made in the currency in
which the relevant Advance is then denominated together with: (a)
accrued interest to the date of prepayment; (b) any additional amount
payable under clause 5.6, 8.5 or 15.2; and (c) all other sums payable
by the relevant Borrower to the relevant Bank under this Agreement
including, without limitation, any accrued commitment commission
payable under clause 7.1(c) on any undrawn amount that is cancelled at
the same time as such prepayment and any amounts payable under clause
14.1.
6.5 Mandatory prepayment, Excess Cash Flow recapture and cancellation
-----------------------------------------------------------------
(A) Mandatory prepayment
--------------------
(a) Subject to the provisions of clause 6.5(D) below, the
Borrowers undertake to apply and to procure the application of
all of:
(i) the proceeds of all disposals made by any member of
the Restricted Group of assets comprising or
contributing 5 per cent. or more of the total assets,
turnover or Net Operating Cash Flow (in any financial
year) of the Restricted Group (taken as a whole);
31
(ii) the proceeds of all equity share capital that has
been subscribed for in any member of the Restricted
Group for cash other than pursuant to the Norwegian
Merger or in connection with the conversion of the
Norwegian I/C Indebtedness in accordance with clause
11.1(ac); and
(iii) the proceeds of all Borrowed Money (other than
Permitted Borrowings) made available to members of
the Restricted Group,
in prepayment of the Loan (or, if less the amount of the
Loan).
(b) The Borrowers' obligations under paragraph (a) above shall not
apply at any time when, in respect of each of the two most
recent previous consecutive Quarterly Periods, the ratio of
Total Debt to Total Annualised Net Operating Cash Flow
(calculated on the last day of each such Quarterly Period and
each as demonstrated in the Compliance Certificate for the
Quarterly Period ending immediately prior to such date) is
less than (and remains below) 4:1.
(B) Excess Cash Flow recapture
--------------------------
During the Reduction Period, the Borrowers shall apply, or procure the
application of, 75 per cent. of Excess Cash Flow (if any) in respect of
the twelve month period of the Restricted Group ending on 31st December
in each year (commencing with the twelve month period ending on 31st
December, 2001 and calculated by reference to the Compliance
Certificate delivered by the auditors of the Parent in respect of the
most recent financial year ending on such date) in prepayment of the
Loan (or, if less, the amount of the Loan) Provided that:
(i) no such prepayment shall be required to be made if the ratio
of Total Debt to Total Annualised Net Operating Cash Flow
(calculated as at the last day of such twelve month period and
as shown in the most recent Compliance Certificate delivered
to the Agent in accordance with clause 11.1) is less than (and
remains below) 3.5:1; and
(ii) no such prepayment shall be required to be made if the amount
of Excess Cash Flow in respect of the most recently ended
twelve month period is less than NLG 10,000,000 (but without
prejudice to the operation of this clause 6.5(B) if the amount
of Excess Cash Flow is NLG 10,000,000 or more).
(C) Application of mandatory prepayments and Excess Cash Flow
---------------------------------------------------------
(a) Each prepayment to be made under paragraphs (A) and (B) above
(each referred to in this clause as a "Mandatory Payment")
shall be made immediately unless the relevant Borrower states
in writing at the time of its receipt of such Mandatory
Payment (or at the time that the auditors of the Parent
deliver the relevant Compliance Certificate, as the case may
be) that it shall be applied on Maturity Dates falling after
the date of receipt of such Mandatory Payment (or delivery of
such Compliance Certificate, as the case may be) in which case
the relevant Borrower shall deposit the amount of such
Mandatory Payment (or if less the amount of the Loan) with the
Agent or as the Agent may reasonably direct in an account (or
accounts) bearing interest at market rates on terms that the
principal amount so deposited may only be released to the
relevant Borrower by making the relevant prepayment, beginning
with the first such Maturity Date and continuing until the
prepayment obligation under paragraphs (A) and/or (B) above
has been satisfied but that any interest on such principal
amount is to be released to the relevant Borrower following
such prepayments; and
(b) if on any Maturity Date upon which an amount of a Mandatory
Payment is to be applied in prepayment of the Loan:
(A) such amount is less than the amount of Advances,
whose
32
Maturity Date is such date, the relevant Borrower may
select against which Advance or Advances the
prepayment is to be made and the proportion of the
relevant amount to be prepaid on each Advance but
shall ensure that the full amount of such Mandatory
Payment required to be applied is so applied in
prepayment; or
(B) such amount is equal to or greater than the amount of
the Advances whose Maturity Date is such date, the
relevant Borrower shall prepay each such Advance on
such date.
(D) Exceptions to clause 6.5(A)
---------------------------
The following shall not constitute Mandatory Payments for the purposes
of clause 6.5(A):
(i) Permitted Payments;
(ii) Permitted Disposals made as part of the Restructuring;
(iii) 50% of the net proceeds received by the Parent from an initial
public offering of shares of the Parent;
(iv) the proceeds of any equity share capital subscribed for in
▇▇▇▇▇ which is permitted pursuant to clause 11.2(g)(iii); and
(v) the proceeds of any equity share capital subscribed for in the
Parent used to redeem or refinance any preference shares
issued pursuant to the Securities Purchase and Conversion
Agreement.
(E) Cancellation
------------
For the avoidance of doubt, and without prejudice to any other
provision of this Agreement, on the date upon which any Mandatory
Payment is to be applied in prepayment of the Loan pursuant to this
clause 6.5, the Total Commitments shall be automatically reduced by an
amount equal to the Guilder Amount of the Mandatory Payment to be so
applied.
6.6 Notice of prepayment
--------------------
No prepayment may be effected under this clause 6 unless the relevant
Borrower shall have given the Agent at least 3 Banking Days' notice of
its intention to make such prepayment. Every notice of prepayment shall
be effective only on actual receipt by the Agent, shall be irrevocable
and shall oblige the relevant Borrower to make such prepayment on the
date specified. Upon a prepayment being made during the Reduction
Period or in accordance with clause 6.5 the Total Commitments shall be
automatically reduced by an amount equal to the Guilder Amount of the
Advance (or part thereof) so prepaid. The Borrowers may not prepay the
Loan or any part thereof save as expressly provided in this Agreement.
6.7 Cancellation of Commitments
---------------------------
The Parent may at any time during the Availability Period by notice to
the Agent (effective only on actual receipt) cancel with effect from a
date not less than 3 Banking Days after the receipt by the Agent of
such notice the whole or any part (being NLG 10,000,000 or any larger
sum which is an integral multiple of NLG 10,000,000) of the Total
Commitments. Any such notice of cancellation, once given, shall be
irrevocable and upon such cancellation taking effect the Commitment of
each Bank shall be reduced proportionately.
6.8 Reduction of Total Commitments
------------------------------
33
On each Reduction Date the Total Commitments shall be automatically
reduced by an amount equal to five per cent. of the amount of the Total
Commitments as at the beginning of the Reduction Period. The Commitment
of each Bank shall be reduced proportionately.
The Borrowers shall prepay or repay Advances in accordance with the
terms of this Agreement on each Reduction Date so that the aggregate of
the Loan does not exceed the aggregate of the Total Commitments as
reduced on such Reduction Date.
6.9 Termination of Commitments
--------------------------
Without prejudice to any other term of this Agreement, any part of the
Commitments which is undrawn and uncancelled on the Termination Date
shall thereupon be automatically reduced to zero and no Advance shall
be made to the Borrowers thereafter.
34
7 Fees and expenses
-----------------
7.1 Fees
----
The Parent shall pay to the Agent whether or not any part of the
Commitments is ever advanced:
(a) on the earlier of (i) the date of the first Advance and (ii)
the date falling five Banking Days after the date of this
Agreement, for the account of the Arranger, an arrangement fee
of an amount agreed between the Parent and the Arranger in a
letter dated the date hereof;
(b) on the earlier of (i) the date of the first Advance and (ii)
the date falling five Banking Days after the date of this
Agreement and on each anniversary of the date of this
Agreement until all moneys owing under this Agreement have
been paid in full, for the account of the Agent, an agency fee
of an amount agreed between the Parent and the Agent in a
letter dated the date hereof; and
(c) in arrears on each Quarter Day after the date of this
Agreement and on the last day of the Availability Period, for
the account of each Bank, commitment commission computed from
the date of this Agreement or the relevant date from which
commitment commission is to accrue at the rate of 0.35 per
cent. per annum on the daily undrawn and uncancelled amount of
such Bank's Commitment. If an Advance is outstanding in an
Optional Currency, the amount of the Commitments treated as
drawn for the purpose of calculating commitment commission
shall be the Guilder Amount of such Advance.
7.2 Expenses
--------
The Parent shall pay to the Agent on demand:
(a) all expenses (including reasonable legal, printing and out-of-
pocket expenses) incurred by the Agent, the Security Trustee
and the Arranger in connection with the negotiation,
preparation and execution of this Agreement and the Security
Documents, the syndication of the Facility, the preparation
and distribution of the Information Memorandum and advertising
in connection with this Agreement and of any amendment or
extension of, or the granting of any waiver or consent under,
this Agreement or the Security Documents together with
interest at the rate referred to in clause 5.3 from the date
of demand for payment of such expenses to the date of payment
(as well after as before judgment); and
(b) all expenses (including legal and out-of-pocket expenses)
incurred by the Agent, the Security Trustee, the Arranger, the
Banks or any of them in contemplation of, or otherwise in
connection with, the enforcement or attempted enforcement of,
or preservation or attempted preservation of any rights under,
this Agreement and/or the Security Documents, including,
without limitation, after the occurrence of a Default or if
otherwise agreed with the Parent, the fees and expenses of
accountants or other experts incurred in relation to any
investigation into the affairs of the Parent or any member of
the Restricted Group, or otherwise in respect of the moneys
owing under this Agreement and/or the Security Documents,
together with interest at the rate referred to in clause 5.3
from the date on which such expenses were incurred to the date
of payment (as well after as before judgment).
7.3 Value Added Tax
---------------
All fees and expenses payable pursuant to this clause 7 shall be paid
together with an amount equal to any value added tax payable by the
Agent, the Arranger or any Bank in respect of such fees and expenses.
7.4 Stamp and other duties
----------------------
35
The Parent shall pay all stamp, documentary, registration or other
similar duties or Taxes (including any such duties or Taxes payable by,
or assessed on, the Banks or the Agent or the Arranger) imposed on or
in connection with this Agreement and/or the Security Documents or the
Facility (other than those imposed by reason of any assignment or
novation by any Bank) and shall indemnify the Agent, the Arranger and
the Banks against any liability arising by reason of any delay or
omission by the Parent to pay such duties or Taxes.
36
8 Payments and Taxes; accounts and calculations
---------------------------------------------
8.1 No set-off or counterclaim; distribution to the Banks
-----------------------------------------------------
All payments to be made by the Obligors under this Agreement and/or the
Security Documents shall be made in full, without any set-off or
counterclaim whatsoever and, subject as provided in clause 8.5, free
and clear of any deductions or withholdings, in Guilders or the
relevant Optional Currency (except for costs, charges or expenses which
shall be payable in the currency in which they are incurred) on the due
date to the account of the Agent at such bank as the Agent may from
time to time specify for this purpose. Save where this Agreement and/or
the Security Documents provide for a payment to be made for the account
of the Agent (for its own account), the Arranger, the Security Trustee
or a particular Bank (including, without limitation, clauses 6.3, 7,
8.5, 14.1, 14.2, 15.1 and 15.2), in which case the Agent shall
distribute the relevant payment to the Bank concerned, payments to be
made by any Obligor under this Agreement and/or the Security Documents
shall be for the account of all the Banks and the Agent shall forthwith
distribute such payments in like funds as are received by the Agent to
the Banks rateably in accordance with their Commitments or
Contributions, as the case may be.
8.2 Payments by the Banks
---------------------
All sums to be advanced by the Banks to the Borrowers under this
Agreement shall be remitted in Guilders or the relevant Optional
Currency on the relevant Drawdown Date to the account of the Agent at
such bank as the Agent may have notified to the Banks and shall be paid
by the Agent on such date in like funds as are received by the Agent to
the account of the relevant Borrower specified in the relevant Drawdown
Notice.
8.3 Non-Banking Days
----------------
When any payment under this Agreement would otherwise be due or any
reduction in the Total Commitments pursuant to clause 6.8 would
otherwise be effected on a day which is not a Banking Day, the due date
for payment or the date of such reduction shall be postponed to the
next following Banking Day unless such Banking Day falls in the next
calendar month in which case payment shall be made on the immediately
preceding Banking Day. If any date or day specifically referred to in
this Agreement is not a Banking Day all references thereto shall be
deemed to be to the immediately preceding Banking Day.
8.4 Agent may assume receipt
------------------------
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume that the payment will
be made when due and may (but shall not be obliged to) make such sum
available to the person so entitled. If it proves to be the case that
such payment was not made to the Agent, then the person to whom such
sum was so made available shall on request refund such sum to the Agent
together with interest thereon sufficient to compensate the Agent for
the cost of making available such sum up to the date of such repayment
and the person by whom such sum was payable shall indemnify the Agent
for any and all loss or reasonable expense which the Agent may sustain
or incur as a consequence of such sum not having been paid on its due
date.
8.5 Grossing-up for Taxes
---------------------
Subject to clause 8.6, at any time any Obligor is required to make any
deduction or withholding in respect of Taxes from any payment due under
this Agreement and/or the Security Documents for the account of any
Bank, the Arranger, the Security Trustee or the Agent (or if the Agent
is required to make any such deduction or withholding from a payment to
the Arranger, the Security Trustee or a Bank), the sum due from the
relevant Obligor in respect of such payment shall, subject to the
Banks' compliance with clause 8.8(b), be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, each Bank, the Arranger, the Security Trustee and the
Agent receives on the due date for such payment (and retains, free from
37
any liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made and the relevant Obligor shall
indemnify each Bank, the Arranger, the Security Trustee and the Agent
against any losses or costs incurred by any of them by reason of any
failure of such Obligor to make any such deduction or withholding or by
reason of any increased payment not being made on the due date for such
payment. The relevant Obligor shall promptly deliver to the Agent any
receipts, certificates or other proof evidencing the amounts (if any)
paid or payable in respect of any such deduction or withholding.
8.6 Qualifying Banks
----------------
If any Bank is not or ceases to be a Qualifying Bank then it shall
promptly notify the relevant Obligor upon becoming aware of the same
and the relevant Obligor shall not be obliged to pay such Bank under
clause 8.5 any amount in excess of the amount it would have been
obliged to pay if such Bank was or had not ceased to be a Qualifying
Bank provided that this clause 8.6 shall not apply (and the relevant
Obligor shall be obliged to comply with its obligations under clause
8.5) if after today's date there shall have been any change in, or in
the interpretation or application of, any relevant law, directive,
treaty (including, without limitation, any applicable double tax
treaty) or regulation or practice of any applicable taxation authority
and as a result thereof the relevant Bank ceases to be a Qualifying
Bank or the relevant Obligor will be required to make deduction or
withholding on account of tax irrespective of whether the recipient of
the relevant payment is or is not a Qualifying Bank. Each Bank confirms
to each of the Obligors that it is a Qualifying Bank.
8.7 Claw-back of Tax benefit
------------------------
If following any such deduction or withholding as is referred to in
clause 8.5 the Agent, the Arranger, the Security Trustee or any Bank
shall receive or be granted a credit against or remission for any Taxes
payable by it, the Agent, the Arranger, the Security Trustee or such
Bank shall, subject to the relevant Obligor having made any increased
payment in accordance with clause 8.5 and to the extent that the Agent,
the Arranger, the Security Trustee or such Bank can do so without
prejudicing the retention of the amount of such credit or remission and
without prejudice to the right of the Agent, the Arranger, the Security
Trustee or such Bank to obtain any other relief or allowance which may
be available to it, reimburse the relevant Obligor with such amount as
the Agent, the Arranger or such Bank shall in its absolute discretion
certify to be the proportion of such credit or remission as will leave
the Agent, the Arranger, the Security Trustee or such Bank (after such
reimbursement) in no worse position than it would have been in had
there been no such deduction or withholding from the payment by the
relevant Obligor as aforesaid. Such reimbursement shall be made
forthwith upon the Agent, the Arranger, the Security Trustee or such
Bank certifying that the amount of such credit or remission has been
received by it. Nothing contained in this Agreement shall oblige the
Agent, the Arranger, the Security Trustee or any Bank to rearrange its
tax affairs or to disclose any information regarding its tax affairs
and computations. Without prejudice to the generality of the foregoing,
the Obligors shall not, by virtue of this clause 8.7, be entitled to
enquire about the Agent's, the Arranger's, the Security Trustee's or
any Bank's tax affairs.
8.8 Certification to secure a Tax benefit
-------------------------------------
If, in order to make any payment due under this Agreement to the Agent,
the Arranger, the Security Trustee or any Bank without deduction or
withholding for or on account of Tax or to secure the benefit of any
reduced rate of such deduction or withholding, any Borrower requires a
direction from or the consent of a government or taxing authority:
(a) the Borrowers agree to use their reasonable endeavours to
complete (accurately and in a manner reasonably satisfactory
to the Agent, the Security Trustee, the Arranger or such
Bank), execute, arrange for any required certification of, and
deliver to the Agent, the Security Trustee, the Arranger or
such Bank or such government or taxing authority as the Agent,
the Security Trustee, the Arranger or such Bank reasonably
directs, any form
38
or document reasonably required of it, and to provide such
information that the Agent, the Security Trustee, the
Arranger, such Bank or such government or taxing authority may
reasonably require or request in order to assist or enable the
Agent, the Security Trustee, the Arranger or such Bank to
secure that such a direction or consent is given to the
relevant Borrower in respect of any payment. Each Borrower
shall perform its obligations under this sub-paragraph (a)
promptly upon the earlier of:
(i) being notified that the form, document or information
is required or requested; and
(ii) demand being made by the Agent, the Security Trustee,
the Arranger, such Bank or the relevant government or
taxing authority, as the case may be;
(b) the Agent, the Security Trustee, the Arranger and each such
Bank agrees to use its reasonable endeavours to complete
(accurately and in a manner reasonably satisfactory to the
Parent), execute, arrange for any required certification of,
and deliver to the relevant Borrower, or such government or
taxing authority as the Parent may reasonably direct, any form
or document reasonably required of it, and to provide such
information that the Parent or such government or taxing
authority may reasonably require or request in order to assist
or enable the Parent to secure that such a direction or
consent is given to the relevant Borrower in respect of any
payment. The obligations of the Agent, the Security Trustee,
the Arranger and such Bank under this sub-paragraph (b) shall
be performed within 30 days of reasonable demand by the
Parent.
8.9 Bank accounts
-------------
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Agent shall maintain
a control account showing each Advance and other sums owing by each
Borrower under this Agreement and all payments in respect thereof made
by the Obligors from time to time. The control account shall, in the
absence of manifest error, be conclusive as to the amount from time to
time owing by each Borrower under this Agreement.
8.10 Partial payments
----------------
If, on any date on which a payment is due to be made by any Obligor
under this Agreement and/or the Security Documents, the amount received
by the Agent from the relevant Obligor falls short of the total amount
of the payment due to be made by the relevant Obligor on such date
then, without prejudice to any rights or remedies available to the
Agent and the Banks under this Agreement and/or the Security Documents,
the Agent shall apply the amount actually received from the relevant
Obligor in or towards discharge of the obligations of the Borrowers
under this Agreement in the following order, notwithstanding any
appropriation made, or purported to be made, by the relevant Obligor:
(a) firstly, in or towards payment, on a pro rata basis, of any
unpaid fees, costs and expenses of the Agent under this
Agreement and/or the Security Documents;
(b) secondly, in or towards payment to the Arranger of any portion
of the arrangement fee payable under clause 7.1(a) which
remains unpaid and to the Agent of any portion of the agency
fee payable under clause 7.1(b) which remains unpaid;
(c) thirdly, in or towards payment to the Banks, on a pro rata
basis, of any accrued commitment commission payable under
clause 7.1(c) which shall have become due but remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata
basis, of any accrued interest which shall have become due but
remains unpaid;
39
(e) fifthly, in or towards payment to the Banks, on a pro rata
basis, of any principal which shall have become due but
remains unpaid; and
(f) sixthly, in or towards payment of any other sum which shall
have become due but remains unpaid (and, if more than one such
sum so remains unpaid, on a pro rata basis).
The order of application set out in this clause 8.10(b)-8.10(f) shall
be varied by the Agent if all Banks so direct, without any reference
to, or consent or approval from, any of the Borrowers.
8.11 Calculations
------------
All interest and other payments of an annual nature under this
Agreement shall accrue from day to day and be calculated on the basis
of actual days elapsed and (in the case of Gilders) a 360 day year or
(in the case of any optional currency) in accordance with standard
London interbank market practice in respect of calculating the numbers
of days comprising a year. In calculating the actual number of days
elapsed in a period which is one of a series of consecutive periods
with no interval between them or a period on the last day of which any
payment falls to be made in respect of such period, the first day of
such period shall be included but the last day excluded.
8.12 Certificates conclusive
-----------------------
Any certificate or determination of the Agent or any Bank as to any
rate of interest or any amount payable under this Agreement shall, in
the absence of manifest error, be conclusive and binding on the
Obligors and (in the case of a certificate or determination by the
Agent) on the Banks.
8.13 Effect of monetary union
------------------------
If the country of any national currency in which any amount is
expressed to be payable under this Agreement participates in Economic
and Monetary Union in accordance with Article 109j of the Treaty on
European Union, then:
(a) any amount expressed to be payable under this Agreement in
that national currency shall be made in that national currency
or in euro as the Agent may, by not less than three Banking
Days' notice to the Obligors and the Banks to that effect,
require;
(b) any amount so required to be paid in euro shall be converted
from that national currency at the rate stipulated pursuant to
Article 109l(4) of the Treaty on European Union and payment of
the amount in euro derived from such conversion shall
discharge the obligation of the relevant party to pay such
national currency amount in accordance with, and subject to,
the Regulation(s) made pursuant to Article 109l(4);
(c) after consultation with the Parent and the Banks and
notwithstanding clause 18.11 the Agent shall be entitled to
make such amendments to this Agreement as it may determine to
be necessary to take account of monetary union and any
consequent changes in market practices (whether as to the
settlement or rounding of obligations, the calculation of
interest or otherwise howsoever).
Any amendment so made to this Agreement by the Agent shall be promptly
notified to the Banks and the Obligors by the Agent and shall be
binding on all the Banks and the Obligors.
40
9 Guarantee
---------
9.1 Limits of Guarantee
-------------------
Notwithstanding the provisions of clause 9.2 to 9.17 inclusive, the
following limitations shall apply to the relevant Guarantors:
(a) Austria
-------
Any payment under the Guarantee by any of the Guarantors
incorporated in Austria (the "Austrian Guarantors") for any
amounts not being direct liabilities of the respective
Austrian Guarantor shall only be up to the amount of
Distributable Profits for which CNA shall have given an
instruction in accordance with clause 11.1(af) to the relevant
Austrian Guarantor ("Anweisung auf ▇▇▇▇▇▇") stating that its
interest in such Distributable Profits can be the subject of
the Guarantee. Provided that the Agent agrees that, without
prejudice to any of its other rights under this Agreement, it
shall not make a demand for payment from Telekabel Wien under
the Guarantee until 28 days after the date that the Agent has
notified Telekabel Wien that a Default has occurred unless at
such time (i) Telekabel Wien has repaid all amounts in respect
of the Telekabel Notes, (ii) Telekabel Wien has breached any
of its obligations under this Agreement or (iii) an Event of
Default has otherwise occurred in relation to Telekabel Wien,
in which case such 28 day grace period (or any unexpired part
thereof) shall not apply. Payments under the Guarantee for
direct liabilities of the relevant Austrian Guarantor are not
subject to any restriction.
(b) Belgium
-------
Radio Public shall not have any liability under the Guarantee
contained in this clause 9 unless and until such time as its
Articles of Association have been amended to a form
satisfactory to the Agent which form permits Radio Public to
give the Guarantee (to the extent described in this clause
9.1(b)). Once the Articles of Association of Radio Public have
been amended as set out above, the liability of Radio Public
under the Guarantee shall be limited to the amount that has
been on-lent to Radio Public from time to time from Advances
made to the Parent, together with the amount of any Advances
which have been applied by the Parent in satisfaction of
obligations of Radio Public.
(c) Norway
------
Each Guarantor which is incorporated in Norway (a "Norwegian
Guarantor") shall have no liability in excess of the aggregate
of (i) the amounts drawn down and utilised by the Norwegian
Borrowers under the Facility from time to time (up to but not
exceeding the Norwegian Loan Amount) and (ii) a portion of the
total loan amount drawn down and utilised by the Borrowers up
to but not exceeding the amount of distributable equity of
such Norwegian Guarantor for which adequate security has been
provided in accordance with the provisions of section 12-10 of
the Norwegian Companies Act of 1976.
9.2 Covenant to pay
---------------
In consideration of the Banks making or continuing to make Advances to
the Borrowers pursuant to this Agreement the Guarantors hereby
irrevocably and unconditionally but subject always to the provisions of
clause 9.1:
(a) jointly and severally guarantee to each Bank, the Arranger,
the Security Trustee and the Agent, the due performance by the
Borrowers of all of their respective obligations under or
pursuant to this Agreement; and
41
(b) jointly and severally guarantee to each Bank, the Arranger,
the Security Trustee and the Agent the payment of all moneys
now or hereafter due, owing or incurred by the Borrowers under
or pursuant to this Agreement when the same become due whether
by acceleration or otherwise.
9.3 Guarantors as principal debtors; indemnity
------------------------------------------
As a separate and independent stipulation, but subject always to the
provisions of clause 9.1, the Guarantors jointly and severally agree
that if any purported obligation or liability of any Borrower which
would have been the subject of this Guarantee had it been valid and
enforceable is not or ceases to be valid or enforceable against such
Borrower on any ground whatsoever whether or not known to the Banks or
any of them or the Agent, the Security Trustee or the Arranger
(including, without limitation, any irregular exercise or absence of
any corporate power or lack of authority of, or breach of duty by, any
person purporting to act on behalf of such Borrower or any legal or
other limitation, or any disability or Incapacity or any change in the
constitution of any relevant Borrower) the Guarantors shall
nevertheless be jointly and severally liable in respect of that
purported obligation or liability as if the same were fully valid and
enforceable and such Guarantor was the principal debtor in respect
thereof. The Guarantors hereby irrevocably and unconditionally jointly
and severally agree to indemnify and keep indemnified the Agent, the
Arranger, the Security Trustee and the Banks against any loss or
liability arising from any failure of any Borrower to perform or
discharge any such purported obligation or liability or from any
invalidity or unenforceability of any of the same against any Borrower
(subject to the provisions of clause 9.1).
9.4 No security taken by Guarantors
-------------------------------
The Guarantors hereby jointly and severally warrant that they have not
taken or received, and undertake that until all the Guaranteed
Liabilities have been paid or discharged in full, they will not take or
receive, the benefit of any security from any Borrower or any other
person in respect of their obligations under this Guarantee save as may
be agreed by the Majority Banks.
9.5 Interest
--------
Each Guarantor agrees to pay interest on each amount demanded of it
under this Guarantee from the date of such demand until payment (as
well after as before judgment) at the rate specified in clause 5.3.
Such interest shall be compounded at the end of each period determined
for this purpose by the Agent in the event of it not being paid when
demanded but without prejudice to the Agent, the Arranger and each
Bank's right to require payment of such interest.
9.6 Continuing security and other matters
-------------------------------------
This Guarantee shall, subject to the provisions of clause 9.1:
(a) extend to the ultimate balance from time to time owing to the
Banks and/or the Agent and/or the Arranger and/or the Security
Trustee by the Borrowers and shall be a continuing guarantee,
notwithstanding any settlement of account or other matter
whatsoever;
(b) be in addition to any present or future Collateral Instrument,
right or remedy held by or available to the Banks or any of
them, the Arranger, the Security Trustee or the Agent; and
(c) not be in any way prejudiced or affected by the existence of
any such Collateral Instrument, rights or remedies or by the
same becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by the Agent, the
Security Trustee or the Arranger or the Banks or any of them
dealing with, exchanging, varying or failing to perfect or
enforce any of the same or giving time for payment or
indulgence or compounding with any other person liable.
42
9.7 New accounts
------------
If this Guarantee ceases to be continuing for any reason whatsoever
each Bank may nevertheless continue any account of any Borrower or open
one or more new accounts and the liability of each Guarantor under this
Guarantee shall not in any manner be reduced or affected by any
subsequent transactions or receipts or payments into or out of any such
account.
9.8 Liability unconditional
-----------------------
The liability of each Guarantor shall not be affected nor shall this
Guarantee be discharged or reduced by reason of:
(a) the Incapacity or any change in the name, style or
constitution of any Obligor or any other person liable; or
(b) the Agent, the Security Trustee or the Arranger or any of the
Banks granting any time, indulgence or concession to, or
compounding with, discharging, releasing or varying the
liability of any other Obligor or any other person liable or
renewing, determining, varying or increasing any
accommodation, facility or transaction or otherwise dealing
with the same in any manner whatsoever or concurring in,
accepting or varying any compromise, arrangement or settlement
or omitting to claim or enforce payment from any Obligor or
any other person liable; or
(c) any act or omission which would not have discharged or
affected the liability of such Guarantor had it been a
principal debtor instead of a guarantor or by anything done or
omitted which but for this provision might operate to
exonerate such Guarantor.
9.9 Collateral Instruments
----------------------
None of the Banks, the Arranger, the Security Trustee and the Agent
shall be obliged to make any claim or demand on any Borrower or to
resort to any Collateral Instrument or other means of payment now or
hereafter held by or available to them or it before enforcing this
Guarantee and no action taken or omitted by any of the Banks, the
Arranger, the Security Trustee or the Agent in connection with any such
Collateral Instrument or other means of payment shall discharge,
reduce, prejudice or affect the liability of any Guarantor under this
Guarantee nor shall any of the Banks, the Arranger, the Security
Trustee or the Agent be obliged to apply any money or other property
received or recovered in consequence of any enforcement or realisation
of any such Collateral Instrument or other means of payment in
reduction of the Guaranteed Liabilities.
9.10 Waiver of Guarantors' rights
----------------------------
Until all the Guaranteed Liabilities have been paid, discharged or
satisfied in full (and notwithstanding payment of a dividend in any
liquidation or under any compromise or arrangement) each Guarantor
agrees that, without the prior written consent of the Agent, it will
not:
(a) exercise its rights of subrogation, reimbursement and
indemnity against any other Obligor or any other person
liable; or
(b) demand or accept any security to be executed in respect of any
of its obligations under this Guarantee or any other
Indebtedness now or hereafter due to such Guarantor from any
other member of the Restricted Group or from any other person
liable; or
(c) take any step or enforce any right against any Obligor or any
other person liable in respect of any Guaranteed Liabilities;
or
43
(d) exercise any right of set-off or counterclaim against any
other Obligor or any other person liable or claim or prove or
vote as a creditor in competition with the Agent, the
Arranger, the Security Trustee or any of the Banks in the
liquidation, administration or other insolvency proceeding of
any other Obligor or any other person liable or have the
benefit of, or share in, any payment from or composition with,
any other Obligor or any other person liable or any other
Collateral Instrument now or hereafter held by the Agent, the
Arranger, the Security Trustee or any of the Banks for any
Guaranteed Liabilities or for the obligations or liabilities
of any other person liable but so that, if so directed by the
Agent, it will prove for the whole or any part of its claim in
the liquidation of any other Obligor on terms that the benefit
of such proof and of all money received by it in respect
thereof shall be held on trust for the Banks, the Arranger,
the Security Trustee and the Agent and applied in or towards
discharge of the Guaranteed Liabilities in such manner as the
Agent shall deem appropriate.
9.11 Suspense accounts
-----------------
Any money received in connection with this Guarantee (whether before or
after any Incapacity of any Obligor) may be placed to the credit of a
suspense account with a view to preserving the rights of the Banks, the
Arranger, the Security Trustee and the Agent to prove for the whole of
their respective claims against any Obligor or any other person liable
or may be applied in or towards satisfaction of the Guaranteed
Liabilities as the Agent may from time to time conclusively determine
in its absolute discretion.
9.12 Settlements conditional
-----------------------
Any release, discharge or settlement between any Guarantor and the
Agent, the Arranger or any of the Banks shall be conditional upon no
security, disposition or payment to the Agent, the Arranger, the
Security Trustee or any of the Banks by any Obligor or any other person
liable being void, set aside or ordered to be refunded pursuant to any
enactment or law relating to bankruptcy, liquidation, administration or
insolvency or for any other reason whatsoever and if such condition
shall not be fulfilled the Banks, the Arranger, the Security Trustee
and the Agent shall be entitled to enforce this Guarantee subsequently
as if such release, discharge or settlement had not occurred and any
such payment had not been made.
9.13 Guarantors to deliver up certain property
-----------------------------------------
If, contrary to clauses 9.4 or 9.10, any Guarantor takes or receives
the benefit of any security or receives or recovers any money or other
property, such security, money or other property shall be held on trust
for the Agent, the Arranger, the Security Trustee and the Banks and
shall be delivered to the Agent on demand.
9.14 Retention of this guarantee
---------------------------
The Banks, the Arranger, the Security Trustee and the Agent shall be
entitled to retain this Guarantee after as well as before the payment
or discharge of all the Guaranteed Liabilities for such period as the
Agent may reasonably determine.
9.15 Changes in constitution or reorganisations of Banks
---------------------------------------------------
For the avoidance of doubt and without prejudice to the provisions of
clause 18, this Guarantee shall remain binding on each Guarantor
notwithstanding any change in the constitution of the Banks or any of
them or the Arranger, the Security Trustee or the Agent or their or its
absorption in, or amalgamation with, or the acquisition of all or part
of their or its undertaking or assets by, any other person, or any
reconstruction or reorganisation of any kind, to the intent that this
Guarantee shall remain valid and effective in all respects in favour of
any successor in title of the Banks, the Arranger, the Security Trustee
and the Agent, any Substitute and any successor Agent appointed
pursuant to clause 19.13 or any successor Security Trustee appointed
pursuant to the Security Trust Deed in the same manner as if such
successor in title, Substitute or successor
44
Agent or successor Security Trustee had been named in this guarantee as
a party instead of, or in addition to, the relevant Bank or the
Arranger, the Security Trustee or the Agent, as the case may be.
9.16 Other Guarantors
----------------
Each Guarantor agrees to be bound by this Guarantee notwithstanding
that any other person intended to execute or to be bound by any other
guarantee or assurance under or pursuant to this Agreement may not do
so or may not be effectually bound and notwithstanding that such other
guarantee or assurance may be determined or be or become invalid or
unenforceable against any other person, whether or not the deficiency
is known to the Banks or any of them or the Agent, the Security Trustee
or the Arranger.
9.17 Acceding Guarantors and New ▇▇▇▇▇
---------------------------------
(a) To the extent legally possible, the Parent shall procure that
(i) as soon as reasonably practicable following the Bridge
Termination Date all Unrestricted Subsidiaries which are
wholly owned by the Parent and which are required to become
Acceding Guarantors by the Agent (acting on the instructions
of the Majority Banks acting reasonably) and (ii) all
Subsidiaries of any Restricted Subsidiary deemed by the Agent
(acting on the instructions of the Majority Banks acting
reasonably) to be of a material size, become Acceding
Guarantors by delivering to the Agent (as soon as is
reasonably practicable following receipt by the Parent of a
written notice from the Agent requiring such action) Deeds of
Guarantor Accession duly executed by such Subsidiaries and the
Parent.
(b) To the extent legally possible, the Parent shall procure that,
at the same time as a Deed of Guarantor Accession is delivered
to the Agent, there is delivered to the Agent all the
documents and evidence listed in schedule 10, part B in
respect of the relevant Subsidiary in each case in form and
substance satisfactory to the Agent acting reasonably.
(c) Delivery of a Deed of Guarantor Accession duly executed by an
Acceding Guarantor and the Parent constitutes confirmation by
the relevant Acceding Guarantor that the representations and
warranties set out in clause 10.1 to be made by it on the date
of the Deed of Guarantor Accession in accordance with clause
10.3 are correct as if made by it with reference to the facts
and circumstances then existing.
(d) To the extent legally possible in any Relevant Jurisdiction,
each Acceding Guarantor, before entering into such a Deed of
Guarantor Accession, shall comply with all relevant
legislation in its country of incorporation, to the
satisfaction of the Agent, to ensure that the proposed
guarantee to be given is in compliance with any relevant
provisions of such legislation and to ensure that the proposed
guarantee to be given is to be legal valid and binding on the
proposed Acceding Guarantor.
(e) The Arranger and each Bank irrevocably authorises the Agent to
countersign each Deed of Guarantor Accession on its behalf
without any further consent of, or consultation with, the
Arranger or any of the Banks.
(f) Each of the other Obligors irrevocably authorises the Parent
to countersign each Deed of Guarantor Accession on its behalf
without any further consent of, or consultation with, any of
the other Obligors.
(g) Contemporaneously with the completion of the Norwegian Merger,
the Parent shall procure that New ▇▇▇▇▇ shall enter into such
documentation as the Agent shall require so as to succeed to
and assume all obligations then owed to the Agent, the
Arranger, the Security Trustee and the Banks by ▇▇▇▇▇,
Norkabel, Kanal 2 A/S, Norkabel A/S and
45
Oslo Kabelanlegg A/S and shall provide to the Agent such
documents, evidence and legal opinions as the Agent may
require in connection therewith.
46
10 Representations and warranties
------------------------------
10.1 Repeated representations and warranties
---------------------------------------
Each Obligor in respect of itself and its Subsidiaries which are
members of the Restricted Group represents and warrants to each of the
Banks, the Arranger, the Security Trustee and the Agent that:
(a) Due incorporation: all of the members of the Restricted Group
-----------------
are duly incorporated and validly existing under the laws of
the respective countries of their incorporation as limited
liability companies and have power to carry on their
respective businesses as they are now being conducted and to
own their respective property and other assets;
(b) Power to borrow etc.: each Obligor has power to execute,
--------------------
deliver and perform its obligations under this Agreement and
the Security Documents to which it is a party and, in the case
of the Borrowers, to borrow the Commitments; all necessary
corporate, shareholder and other action has been taken to
authorise the execution, delivery and performance of the same
and no limitation on the powers of any Borrower to borrow or
on the powers of any Guarantor to give guarantees will be
exceeded as a result of borrowings under this Agreement or as
a result of the giving of the Guarantee (in each case as
limited, where appropriate, by clause 9.1);
(c) Binding obligations: this Agreement constitutes and the
-------------------
Security Documents to which it is a party, when executed and
delivered by the relevant Obligor will constitute, valid and
legally binding obligations of such Obligor enforceable in
accordance with their respective terms subject to the
qualifications contained in the legal opinions referred to in
schedule 3 and mandatory provisions of law affecting creditors
rights generally;
(d) No conflict with other obligations: the execution and delivery
----------------------------------
of, the performance of its obligations under, and compliance
with the provisions of, this Agreement and the Security
Documents to which it is a party by the Obligors will not (i)
contravene any existing applicable law, statute, rule or
regulation or any judgment, decree or permit to which any
Obligor is subject, (ii) conflict with, or result in any
breach of any of the terms of, or constitute a default under,
any agreement or other instrument to which any Obligor is a
party or is subject or by which it or any of its property is
bound, (iii) contravene or conflict with any provision of any
Obligor's constitutive documents, (iv) breach in any material
respect any term of the Licences or Necessary Authorisations
or (v) save for the Encumbrances granted to the Security
Trustee pursuant to the Security Documents, result in the
creation or imposition of or oblige any member of the
Restricted Group to create any Encumbrance (other than a
Permitted Encumbrance) on any member of the Restricted Group's
undertakings, assets, rights or revenues;
(e) No filings required: save for the filings, registrations and
-------------------
notarisations referred to in the legal opinions referred to in
schedule 3, it is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of this
Agreement or the Security Documents that any of them or any
other instrument be notarised, filed, recorded, registered or
enrolled in any court, public office or elsewhere in any
Relevant Jurisdiction or that any stamp, registration or
similar tax or charge be paid in any Relevant Jurisdiction on
or in relation to this Agreement or any of the Security
Documents and this Agreement and the Security Documents are in
proper form for their enforcement in the courts of any
Relevant Jurisdiction;
(f) No litigation: no litigation, arbitration or administrative
-------------
proceeding is taking place, pending or, to the knowledge of
the officers of any Obligor, threatened against any member of
the Restricted Group which, if adversely determined would or
is reasonably likely to have a Material Adverse Effect;
47
(g) Financial statements correct and complete:
-----------------------------------------
(i) the audited consolidated financial statements of the
Parent and the audited financial statements of each
member of the Restricted Group (in the case of Kanal 2
A/S, Oslo Kabelanlegg A/S, Norkabel A/S, as
consolidated into the consolidated financial statements
of Norkabelgruppen A/S and in the case of CNA, as
consolidated into the consolidated financial statements
of the Parent) in respect of the financial year ended
on 31st December 1996 as delivered to the Agent have
been prepared in accordance with GAAP which principles
have been consistently applied and present fairly and
accurately the financial position of the Parent and the
financial position of each member of the Restricted
Group respectively as at such date and the results of
the operations of the operations of the Parent and the
results of the operations of each member of the
Restricted Group respectively for the financial year
ended on such date and, as at such date, neither the
Parent nor any member of the Restricted Group had any
significant liabilities (contingent or otherwise) or
any losses which are not disclosed by, or reserved
against or provided for in, such financial statements;
(ii) (A) the unaudited monthly management accounts for
each of the Parent, Radio Public, the Telekabel
Entities, ▇▇▇▇▇ and its Subsidiaries and the
Restricted Group dated 30th June, 1997; and
(B) the unaudited quarterly management accounts for
each of the Parent, Radio Public, the Telekabel
Entities, ▇▇▇▇▇ and its Subsidiaries and the
Restricted Group dated 30th June, 1997;
as delivered to the Agent have been prepared in
accordance with GAAP which principles have been
consistently applied and present fairly and accurately
the results of the operations of each of the Parent,
Radio Public, the Telekabel Entities, ▇▇▇▇▇ and its
Subsidiaries and the Restricted Group dated 30th June,
1997 (as appropriate) for the relevant period; and
(iii) the combined financial projections for the Restricted
Group for the financial years ending 1997 to 2006
inclusive, the operating statistics projections for
such financial years and the Management Base Case have
been prepared based upon historical financial
information and upon the assumptions set forth therein,
which assumptions were reasonable when made and are
reasonable on the date hereof;
(h) No material adverse change: there has been no material adverse
--------------------------
change in the financial position of the Parent or the
consolidated financial position of the Restricted Group from
that set forth in the financial statements referred to in
clause 10.1(g)(i) and (ii);
(i) Choice of law: the choice by the Obligors of English law to
-------------
govern this Agreement and the submission by the Obligors to
the non-exclusive jurisdiction of the High Court of Justice in
England are valid and binding;
(j) Title to assets: each Obligor is the legal and beneficial
---------------
owner of and has good and marketable title to its assets free
and clear of any Encumbrance other than Permitted
Encumbrances;
(k) Intellectual Property Rights:
----------------------------
(i) the Intellectual Property Rights owned by or licensed
to each member of the Restricted Group are free from
any Encumbrance (save for those created or to be
created by or pursuant to the Security Documents and
Permitted Encumbrances) and any other rights or
interests in favour of third parties;
48
(ii) the Intellectual Property Rights owned by or licensed
to each member of the Restricted Group are all the
Intellectual Property Rights required by them in order
to carry on, maintain and operate in all material
respects their respective businesses, properties and
assets and no member of the Restricted Group in
carrying on its business infringes any Intellectual
Property Rights of any third party where any action
taken by such third party in respect of any such
infringement would or is reasonably likely to have a
Material Adverse Effect; and
(iii) no Intellectual Property Rights owned by any member of
the Restricted Group are being infringed, nor is there
any threatened infringement of any such Intellectual
Property Rights which, in either case would or is
reasonably likely to have a Material Adverse Effect;
(l) Copyright matters: each member of the Restricted Group has
-----------------
obtained all consents and taken all other action required in
connection with the secondary transmission by it of any
broadcast television signals (other than where failure to do
so would or is reasonably likely to have a Material Adverse
Effect) and no member of the Restricted Group has any
knowledge, nor is it aware of any claim, that it is or may be
liable to any person for any copyright infringement of any
nature whatsoever as a result of the operation of its business
which liability would or is reasonably likely to have a
Material Adverse Effect;
(m) Shares: all shares issued by each member of the Restricted
------
Group have been validly allotted; and
(n) Works councils: no Obligor incorporated in the Netherlands has
--------------
instituted a works council or, if any such works council has
been instituted, all action has been taken by or in relation
to such works council necessary to authorise the performance
by the Obligors of their respective obligations under this
Agreement and the Security Documents.
10.2 Further representations and warranties
--------------------------------------
Each Obligor in respect of itself and its Subsidiaries which are
members of the Restricted Group further represents and warrants to each
of the Banks, the Arranger, the Security Trustee and the Agent that:
(a) Principal Agreements:
--------------------
(i) the Principal Agreements which have been entered into
on or prior to the date of this Agreement are in full
force and effect; and
(ii) to the best of its knowledge and belief after due
enquiry, (1) no party is in breach of any material term
thereof, (2) there is no material dispute subsisting
between the parties thereto and (3) no amendments have
been made thereto;
(b) Licences and Necessary Authorisations: the Licences are in
-------------------------------------
full force and effect and each member of the Restricted Group
is in compliance in all material respects with all provisions
thereof that are applicable to it. Each member of the
Restricted Group has secured all the Necessary Authorisations,
all such Necessary Authorisations are in full force and effect
and each member of the Restricted Group is in compliance in
all material respects with all provisions thereof. To the best
of its knowledge and belief after due enquiry, neither the
Licences nor any of the Necessary Authorisations are the
subject of any pending or threatened attack or revocation;
(c) Consents obtained: every consent, authorisation, licence or
-----------------
approval of, or registration with or declaration to,
governmental or public bodies or authorities of courts (other
than
49
the Licences and the Necessary Authorisations) required by
each member of the Restricted Group to authorise, or required
by any member of the Restricted Group in connection with, the
execution, delivery, validity, enforceability or admissibility
in evidence of this Agreement and the Security Documents to
which it is a party or the performance by each member of the
Restricted Group of their respective obligations under this
Agreement and the Security Documents to which they are a party
has been obtained or made and is in full force and effect and
there has been no material default in the observance of the
conditions or restrictions (if any) imposed in, or in
connection with, any of the same;
(d) Contractual commitments: since the audited accounts of the
-----------------------
Parent for the year ended 31st December 1996, no dividends (in
cash or specie) of the Parent or any other rights or benefits
have been declared, made or paid by the Parent and no member
of the Restricted Group has entered into any contractual
commitments of a material nature (other than (i) the Principal
Agreements, (ii) for the purpose of carrying out the business
of constructing, installing and operating cable television and
telecommunications systems in the territories covered by the
Licences or such other business as is permitted by the terms
of this Agreement, (iii) contractual commitments constituting
Permitted Borrowings, Permitted Disposals or Permitted
Encumbrances or (iv) in relation to the Philips Transaction);
(e) No withholding Taxes: (assuming the correctness of the
--------------------
confirmation set out in clause 8.6) under the law and practice
at today's date no Taxes are imposed by withholding or
otherwise on any payment to be made to the Agent, the Security
Trustee, the Arranger or the Banks by any member of the
Restricted Group under this Agreement or any Security Document
or are imposed on or by virtue of the execution or delivery by
any member of the Restricted Group of this Agreement or any
Security Document to which it is a party or any document or
instrument to be executed or delivered under this Agreement or
any such Security Document;
(f) Telecommunications and Cable Laws: to the best of its
---------------------------------
knowledge and belief after due enquiry, each member of the
Restricted Group is in compliance in all material respects
with all Telecommunications and Cable Laws but excluding, for
these purposes only, breaches of Telecommunications and Cable
Laws which have been expressly waived by the relevant
regulatory authority;
(g) No Default: no member of the Restricted Group is in breach of
----------
or in default under any agreement relating to Indebtedness to
which it is a party or by which it may be bound; and
(h) Information Memorandum: to the best of the Parent's knowledge
----------------------
and belief after due enquiry, as at the date of the
Information Memorandum the factual information relating to the
Restricted Group contained in the Information Memorandum was
true and accurate in all material respects and not misleading
in any material respect and the Information Memorandum does
not omit any material facts; all reasonable enquiries have
been made by the Parent to verify the facts and statements
relating to the Restricted Group contained therein; all
opinions, projections and forecasts contained therein and the
assumptions on which such opinions, projections and forecasts
were based on and arrived at after due and careful
consideration and enquiry and represent the views of the
Parent as at the date of the Information Memorandum; there are
no material facts or circumstances which have not been
disclosed to the Arranger prior to the date hereof the
omission of which could make any factual information contained
in the Information Memorandum inaccurate or misleading in any
material respect either as at the date of the Information
Memorandum or as at the date of this Agreement or any of the
opinions, projections and forecasts contained in the
Information Memorandum (and the assumptions on which such
opinions, projections and forecasts were made) misleading in
any material respect either as at the date of the Information
Memorandum or as the date of this Agreement. Notwithstanding
the above, no warranty or
50
representation is made in respect of (i) any information,
facts, statements, opinions, projections, forecasts,
demographic statistics or circumstances relating to the cable,
media, telecommunications and data services industry as a
whole, and (ii) any person other than any member of the
Restricted Group; and
(i) Environmental Matters
---------------------
(i) each member of the Restricted Group complies, in all
respects, with all requirements of Environmental Laws
where failure to do so has or is reasonably likely to
have a Material Adverse Effect; and
(ii) after due enquiry, no Environmental Claim is, to the
knowledge of any member of the Restricted Group,
pending, threatened or existing, as at the date of this
Agreement, which has or is reasonably likely to have a
Material Adverse Effect.
10.3 Repetition
----------
The representations and warranties in clause 10.1, (so that (i) the
representation and warranty in clause 10.1(g)(i) shall for this purpose
refer to the then latest consolidated financial statements of the
Restricted Group verified by the auditors to the Restricted Group and
delivered to the Agent under clause 11.1, (ii) the representation and
warranty in clause 10.1(g)(ii) shall for this purpose refer to the then
latest Monthly Management Accounts and Quarterly Management Accounts
delivered to the Agent under clause 11.1, (iii) the representation and
warranty contained in clause 10.1(g)(iii) shall for this purpose refer
to the then latest consolidated financial projections of the Restricted
Group and the then latest operating statistics projections for each
franchise and shall not include a representation or warranty as to the
Management Base Case, and (iv) the representation and warranty in
clause 10.1(h) shall for this purpose refer to the latest audited
financial statements of the Restricted Group delivered to the Agent
under clause 11.1) shall be deemed to be repeated by the Obligors on
and as of each Drawdown Date and each Maturity Date as if made with
reference to the facts and circumstances existing on each such day and,
in the case of an Obligor which becomes a party to this Agreement after
the date hereof, shall be deemed to be repeated by that Obligor on the
date that it executes a Deed of Borrower Accession or Deed of Guarantor
Accession.
51
11 Undertakings
------------
11.1 Positive Covenants
------------------
Each Obligor in respect of itself and its Subsidiaries which are
members of the Restricted Group undertakes with each of the Banks, the
Security Trustee, the Arranger and the Agent that, from the date of
this Agreement and so long as any moneys are owing under this Agreement
or remain available for drawing by the Borrowers, it will:
(a) Notice of Default, etc.
----------------------
procure that the Agent is promptly informed of (i) any
occurrence of which it becomes aware which would or is
reasonably likely to have a Material Adverse Effect, (ii) any
Default and any potential breach of any of the undertakings
set out in clause 11 or 12 forthwith upon becoming aware
thereof and will from time to time, if so requested by the
Agent, confirm to the Agent in writing that, save as otherwise
stated in such confirmation, no Default has occurred and is
continuing, (iii) any lapse, suspension or termination of or
refusal by any person to renew or extend any Licence or
Necessary Authorisation or any breach of any Licence or
Necessary Authorisation or any breach of any Licence or
Necessary Authorisation where any such breach would or is
reasonably likely to have a Material Adverse Effect, (iv) (to
the extent known to any member of the Restricted Group) the
commencement of all proceedings and investigations by or
before any governmental body and all actions and proceedings
in any court or before any arbitrator where any such
proceedings, investigations or actions would, if adversely
determined, have a Material Adverse Effect (v) any application
of which it becomes aware for any other licence or franchise
agreement by means of cable television systems (including
satellite master antennae television systems and multi-point
microwave distributions systems) with respect to the territory
covered by the Licences where any such application, if
successful, would or is reasonably likely to have a Material
Adverse Effect and (vi) any breach of any Telecommunications
and Cable Laws by any member of the Restricted Group which
would or is reasonably likely to have a Material Adverse
Effect;
(b) Consents and licences
---------------------
without prejudice to clauses 3 and 10.1, obtain or cause to be
obtained, maintain in full force and effect and comply in all
material respects with the conditions and restrictions (if
any) imposed in, or in connection with, every consent,
authorisation, licence or approval of governmental or public
bodies or authorities or courts and do, or cause to be done,
all other acts and things which may from time to time be
necessary or desirable under applicable law for the continued
due performance of all its obligations under this Agreement
and the Security Documents;
(c) Use of proceeds
---------------
use the proceeds of drawings under this Agreement exclusively
for the purposes specified in clause 1.1;
(d) Pari passu
----------
ensure that its obligations under this Agreement shall,
without prejudice to the provisions of clause 11.2 or to the
security intended to be created pursuant to the Security
Documents, at all times rank at least pari passu with all its
other present and future unsecured and unsubordinated
Indebtedness with the exception of any obligations which are
mandatorily preferred by law and not by contract;
(e) Business
--------
52
engage in the business of acting as the holder of shares
and/or interests in other members of the Restricted Group
and/or the Unrestricted Group and/or engage in the business of
constructing, installing, operating and utilising cable
television, telecommunications and data service systems for
households and businesses in Europe and Israel and in no other
activities save for any directly related business reasonably
considered to be financially beneficial to such business; in
the case of the Parent engage in the business of acting as the
holding company of its Subsidiaries (which shall include the
raising of Permitted Borrowings and the on-lending of such
Borrowed Money to its Subsidiaries in accordance with the
provisions of this Agreement and the entry into of hedging
arrangements on behalf of its Subsidiaries) and in no other
activities;
(f) Financial statements
--------------------
(in the case of the Parent) prepare:
(i) annual audited:
(A) unconsolidated financial statements of the Parent,
(B) unconsolidated financial statements of Radio
Public,
(C) consolidated financial statements of the Telekabel
Entities,
(D) consolidated financial statements of ▇▇▇▇▇ and its
Subsidiaries, and
(E) combined financial statements of the Restricted
Group each in accordance with GAAP (together with
a reconciliation statement to the generally
accepting accounting principles and practices in
the United States of America) and cause such
financial statements to be reported on by its
auditors and deliver to the Agent sufficient
copies of the same for distribution to all of the
Banks as soon as practicable but not later than
120 days (or 150 days if the Parent is in active
discussions with its auditors and if such
financial statements would have been subject to a
qualification (other than a qualification of a
technical nature and the remedy for the matter
giving rise to the qualification would have no
effect on the results of the relevant members of
the Restricted Group for the period to which such
financial statements relate or on the financial
position of the relevant member of the Restricted
Group as at the end of such period) if delivered
within 120 days) after the end of the financial
year to which they relate; and
(ii) semi-annual unaudited:
(A) unconsolidated financial statements of the Parent,
(B) unconsolidated financial statements of Radio
Public,
(C) consolidated financial statements of the Telekabel
Entities,
(D) consolidated financial statements of ▇▇▇▇▇ and its
Subsidiaries, and
(E) combined financial statements of the Restricted
Group
(on the same basis as that used for the annual
financial statements referred to in (i) above) and
deliver to the Agent sufficient copies of the same for
53
distribution to all of the Banks as soon as practicable
but not later than 45 days after the end of the Six
Month Period to which they relate.
Each set of consolidated financial information or financial
statements of all or any part of the Restricted Group
delivered pursuant to this clause 11.1(f) shall be accompanied
by a calculation in reasonable detail of Net Operating
Cashflow for each of (i) the Parent, (ii) Radio Public (iii)
the Telekabel Entities (iv) ▇▇▇▇▇ and its Subsidiaries and (v)
the Restricted Group;
(g) Quarterly Management Accounts
-----------------------------
(in the case of the Parent) in respect of each Quarterly
Period commencing with the Quarterly Period ending 30th
September 1997, prepare unaudited Quarterly Management
Accounts for each of:
(i) the Parent (unconsolidated),
(ii) Radio Public (unconsolidated),
(iii) the Telekabel Entities (consolidated),
(iv) ▇▇▇▇▇ and its Subsidiaries (consolidated), and
(v) the Restricted Group (combined)
in each case containing information of a substantially similar
type and to a substantially similar level of detail as in the
format used in the preparation of the Management Base Case
(including, without limitation, a profit and loss account,
balance sheet, cash flow statement and summary of operating
statistics in the form (or in a form substantially similar to
the form) used in the Management Base Case and, in the case of
the last Quarterly Period of each financial year, a profit and
loss account, and cash flow statement for that financial year
in the form (or in a form substantially similar to the form)
used in the Management Base Case) or omitting any such
information or detail or containing such other information or
to such other level of detail as may, from time to time, be
approved by the Agent (acting on the instructions of the
Majority Banks acting reasonably) in writing and deliver a
copy of the same to the Agent for distribution to all of the
Banks as soon as practicable but not later than 45 days after
the Quarterly Period to which they relate;
(h) Monthly Management Accounts
---------------------------
(in the case of the Parent) in respect of each calendar month
commencing with September 1997, prepare unaudited Monthly
Management Accounts each of:
(i) the Parent (unconsolidated),
(ii) Radio Public (unconsolidated),
(iii) the Telekabel Entities (consolidated),
(iv) ▇▇▇▇▇ and its Subsidiaries (consolidated), and
(v) the Restricted Group (combined)
in each case containing information of a substantially similar
type and to a substantially similar level of detail as in the
format used in the preparation of the Management Base Case
(including, without limitation, a commentary, a profit and
loss account and cash flow statement and a summary of
operating statistics in the form (or in a form
54
substantially similar to the form) used in the Management Base
Case) or omitting any such information or detail or containing
such other information or to such other level of detail as
may, from time to time, be approved by the Agent (acting on
the instructions of the Majority Banks acting reasonably) in
writing and deliver a copy of the same to the Agent for
distribution to all of the Banks as soon as practicable but
not later than 30 days after the calendar month to which they
relate;
(i) Change in basis of accounts
---------------------------
(in the case of the Parent) ensure that all financial
statements delivered under clause 10.1(f) are prepared in
accordance with GAAP and in accordance with the accounting
principles and practices used in the preparation of the
financial statements referred to in clause 9.1(g)(i) and the
1997 Budget (the "Original Basis") consistently applied in
respect of each financial year unless to do so would be
inconsistent with then current GAAP (the "New Basis"). If the
preparation of financial statements on the Original Basis is
contrary to the New Basis then the Parent shall promptly
notify the Agent in writing of the relevant change and (at the
option of the Parent) shall either (1) prepare and deliver to
the Agent audited financial statements on both the Original
Basis and the New Basis (or shall prepare and deliver
financial statements on the New Basis only but shall also
prepare and deliver an audited reconciliation statement (a
"Reconciliation Statement") showing those adjustments
necessary in order to reconcile the financial statements
produced on the New Basis to the Original Basis) or (2)
request the Agent to enter into good faith negotiations for
such amendments (if any) as are necessary to the covenants
contained in clause 12.1 and any other provisions of this
Agreement affected by such change, in which event the Agent
will enter into such negotiations for a period of not more
than 28 days. If agreement is reached between the Parent and
the Agent (acting on the instructions of the Majority Banks)
within such period as to the amendment of any such covenants
or provisions, then the parties hereto will enter into such
documentation and take such other steps as are required to put
such amendments into effect following which the Parent shall
then be obliged to produce financial statements on the New
Basis only. If no such agreement is reached then the Parent
shall be obliged to prepare and deliver financial statements
on both the Original Basis and the New Basis (or shall prepare
and deliver audited financial statements on the New Basis
accompanied by a Reconciliation Statement).
Where the Parent is under an obligation to deliver financial
statements under clause 11.1(f) on both the Original Basis and
the New Basis (or on the New Basis but accompanied by a
Reconciliation Statement), Monthly Management Accounts and
Quarterly Management Accounts shall also be delivered on both
bases or on the New Basis but accompanied by a Reconciliation
Statement.
All financial statements, Quarterly Management Accounts,
Monthly Management Accounts and Reconciliation Statements
delivered pursuant to this clause 11.1(i) shall be delivered
within the relevant time period set out in clause 11.1.
The provisions of this clause 11.1(i) shall also apply,
mutatis mutandis, to the preparation and delivery of the
Annual Budget under clause 11.1(j)(iii) and the revised
financial projections under clause 11.1(j)(iv).
(j) Delivery of reports
-------------------
deliver to the Agent, for distribution to the Banks (in the
case of a Compliance Certificate issued by the auditors of the
Restricted Group) sufficient copies for all of the Banks or
(in any other case) a copy of each of the following documents,
in each case at the time of issue thereof or (in the case of
the Compliance Certificates referred to in (ii) below)
together with the financial statements prepared in respect of
each financial year and Quarterly Management Accounts prepared
in respect of each Quarterly Period
55
pursuant to clause 11.1(g) in respect of the financial period
to which such Compliance Certificate relates:
(i) every material document issued by the Parent to its
shareholders (in their capacity as a shareholder) or
issued by the Parent or any of its Subsidiaries to its
creditors generally;
(ii) (in the case of the Parent only) a Compliance
Certificate stating that the Restricted Group as at the
last day of the financial period to which such
financial statements or Quarterly Management Accounts
relate was in compliance with the relevant covenants
and undertakings in clause 12 (or if it was not in
compliance indicating the extent of the breach);
(iii) (in the case of the Parent only)(for each financial
year falling within the Availability Period) an Annual
Budget for each financial year for the Restricted Group
no later than the last day of the preceding financial
year; and
(iv) (in the case of the Parent only)(for each financial
year falling within the Availability Period commencing
in 1998) no later than 30th June in each year, revised
financial projections and revised projections for
operating statistics in relation to the Restricted
Group containing information of a substantially similar
type and to a substantially similar level of detail as
the base case financial projections and operating
statistics projections contained in the Management Base
Case, such projections to extend to at least the
Termination Date and to contain details of the
assumptions on the basis of which such projections have
been prepared and an explanation of any discrepancies
from the most recently delivered financial projections
and projections for operating statistics delivered
under this sub-paragraph (j)(iv) (or, in the case of
the first such financial projections, from the base
case financial projections or operating statistics
projections (as the case may be) contained in the
Management Base Case);
(k) Financial Year End
------------------
maintain a financial year end of 31 December for each member
of the Restricted Group save with the prior written consent of
the Majority Banks;
(l) Authorised Officers
-------------------
ensure that any new or replacement Authorised Officer has
provided the Agent with evidence satisfactory to it of such
new officer(s)' authority and a specimen of his or their
signature(s) prior to signing any Compliance Certificates,
Drawdown Notices, or any other notices, requests or
confirmations referred to in this Agreement or relating to the
Facility;
(m) Auditors
--------
ensure that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is appointed as auditor of the
Parent and each Restricted Subsidiary and not change such
appointment without appointing a major accounting firm of
recognised international standing and repute;
(n) Provision of further information
--------------------------------
notify the Agent of any change to the business of any member
of the Restricted Group providing details of such change as
soon as practicable after making such change and provide the
Agent with a copy of (i) each Principal Agreement entered into
after the date of this Agreement and (ii) any material report,
notice or other communication relating to the Licences, the
Necessary Authorisations and such financial and other
56
information concerning each member of the Restricted Group and
their respective affairs as the Agent or any Bank (acting
through the Agent) may from time to time reasonably require;
(o) Insurance
---------
maintain insurance cover of a type and level which a prudent
company in the same business as the relevant Obligor would
effect;
(p) Inspection
----------
if required by the Agent (acting on the instructions of the
Majority Banks), at any time whilst a Default is continuing,
permit, to the extent it is able to do so, representatives of
the Agent or any of the Banks upon reasonable prior written
notice to the Parent or its relevant Subsidiary, after having
made arrangements with the Parent so to do and after entering
into a confidentiality undertaking if reasonably required by
the Parent (a) visit and inspect the properties of any member
of the Restricted Group during normal business hours, (b)
inspect and make extracts from and copies of its books and
records other than records which the relevant member of the
Restricted Group is prohibited by law from disclosing to the
Agent and/or any relevant Bank and (c) discuss with its
principal officers and auditors its business, assets,
liabilities, financial position, results of operations and
business prospects provided that any such discussion with the
auditors shall only be on the basis of the audited accounts of
the Restricted Group and Compliance Certificates issued by the
auditors;
(q) Compliance with laws and regulations
------------------------------------
comply with the terms and conditions of all laws (including
Telecommunications and Cable Laws, the Licences and the
Necessary Authorisations), regulations, agreements, licences
and concessions including, without limitation, all
Environmental Laws and all Environmental Licences if the
failure to comply therewith, would or is reasonably likely, in
the opinion of the Agent, to have a Material Adverse Effect;
(r) Taxes
-----
file or cause to be filed all tax returns required to be filed
in all jurisdictions in which it is situated or carries on
business or is otherwise subject to Taxation and will pay all
Taxes shown to be due and payable on such returns or any
assessments made against it within the period stipulated for
such payment (other than those being contested in good faith
and where such payment may be lawfully withheld);
(s) Cost capitalisation policy
--------------------------
maintain a cost capitalisation policy consistent with the cost
capitalisation policy used in the preparation of the financial
statements referred to in clause 10.1(g)(i) or such other cost
capitalisation policy as may be approved by the auditors and
the Agent (acting on the instructions of the Majority Banks)
from time to time;
(t) Further members of the Restricted Group
---------------------------------------
after the Bridge Termination Date, and subject to the
provisions of clause 9.16, it will and will procure that any
Acceding Guarantor which is wholly owned by the Parent and
which the Majority Banks and the Parent agree may become a
member of the Restricted Group, delivers to the Agent such
documents and evidence as the Agent may require, in form and
substance satisfactory to the Agent (acting on the
instructions of the Majority Banks). The parties hereto agree
that upon the execution and delivery of all such documents and
evidence, and provided that the Agent has notified each of the
other parties of this Agreement that such documents and
evidence are in form and substance
57
satisfactory to it, such Acceding Guarantor shall become a
member of the Restricted Group for the purposes of this
Agreement; and
(u) Agreed Hedging Programme
------------------------
as from the date falling three months after the date of this
Agreement, maintain interest rate protection arrangements with
a Bank, on a rolling forward three year basis in respect of at
least 50 per cent. of the then forecast amount of the Loan,
which interest rate protection arrangements have the effect of
fixing the maximum rate of interest payable (excluding the
Margin and any other associated costs) by the Borrowers within
200 basis points of three month LIBOR (as at the date that the
relevant arrangements come into effect) for the relevant
currency.
(v) Licences and Necessary Authorisations
-------------------------------------
obtain or cause to be obtained, every consent, authorisation,
licence or approval of, or registration with or declaration
to, governmental or public bodies or authorities or courts in
any Relevant Jurisdiction necessary for the construction,
installation or operation of the Cable Systems (including,
without limitation, the Licences and the Necessary
Authorisations) and (A) ensure that none of the same is
revoked, cancelled, suspended, withdrawn, terminated, expires
and is not renewed or otherwise ceases to be in full force and
effect without a new one having first been put in place with a
member of the Restricted Group on substantially identical
terms or on terms more beneficial to the Restricted Group and
(B) ensure that none of the same is modified in any respect
and that no member of the Restricted Group commits any default
in the observance of the conditions or restrictions (if any)
imposed in, or in connection with, any of the same which, in
the case of any of the events listed in this sub-paragraph
(B), in the reasonable opinion of the Majority Banks, would or
is reasonably likely to have a Material Adverse Effect; and
(w) Shareholdings in the Restricted Subsidiaries
--------------------------------------------
save, in each case, with the prior written consent of all of
the Banks:
(i) (in the case of the Parent) maintain (A) 100 per cent.
of the issued share capital of each of CNA and 100 per
cent. direct or indirect ownership of the issued share
capital of Radio Public and maintain at least the
percentage of direct shareholding in Radio Public that
it has at the date of this Agreement, (B) (prior to the
Norwegian Merger) not less than 70.2 per cent. of the
issued share capital of ▇▇▇▇▇, (c) (after the Norwegian
Merger but before the Option Date) not less than 87.3
per cent. of the issued share capital of New ▇▇▇▇▇ and
(d) (after the Option Date and at all times after 29th
June, 2001) not less than 100 per cent. of the issued
share capital of New ▇▇▇▇▇ and the Parent shall ensure
that at all times thereafter 100 per cent. of the
shares in New ▇▇▇▇▇ are pledged to the Security Trustee
pursuant to the Norwegian Share Security;
(ii) (in the case of CNA) maintain not less than 95 per
cent. of the issued share capital of each of the
Telekabel Entities;
(iii) (in the case of ▇▇▇▇▇) prior to the Norwegian Merger,
maintain not less than 100 per cent. of the issued
share capital of ▇▇▇▇▇ Multicom A/S, Satelvisjon A/S
and Norkabel;
(iv) (in the case of Norkabel) prior to the Norwegian
Merger, maintain not less than 100 per cent. of the
issued share capital of Kanal 2 A/S, Norkabel A/S and
Oslo Kabelanlegg A/S; and
58
(v) as soon as practicable after the Norwegian Merger, the
Parent shall procure that New ▇▇▇▇▇ shall liquidate
Kanal 2 A/S, ▇▇▇▇▇ Multicom A/S (since renamed ▇▇▇▇▇
Telematikk A/S) and Satelvisjon A/S;
(x) Subordination of loans from Relevant Persons
--------------------------------------------
(in the case of the Parent) shall procure that prior to any
Relevant Person making any Borrowed Money available to any of
the members of the Restricted Group, such Relevant Person
shall enter into a Deed of Subordination on terms and
conditions satisfactory to the Agent and a Charging Entity's
Deed of Accession (as such term is defined in the Security
Trust Deed) and provides the Agent with such documents and
evidence as it may reasonably require as to the power and
authority of the Relevant Person to enter into such Deed of
Subordination and Charging Entity's Deed of Accession and that
the same constitute valid and legally binding obligations of
such Relevant Person enforceable in accordance with its terms
subject to substantially similar qualifications to those made
in the legal opinions referred to in part A of schedule 3. In
addition, it will procure that each Security Provider enters
into a Charging Entity's Deed of Accession and provides the
Agent with such documents and evidence as it may reasonably
require as to the power and authority of such Security
Provider to enter into such Charging Entity's Deed of
Accession and that the same constitutes valid and legally
binding obligations of such Security Provider enforceable in
accordance with its terms subject to substantially similar
qualifications to those made in the legal opinions referred to
in part A of schedule 3. For the avoidance of doubt, it is
agreed that Telekabel Wien shall not be required to enter into
a Deed of Subordination in respect of any loan provided by
Telekabel Wien to another member of the Restricted Group;
(y) Norwegian security
------------------
(in the case of each of the Obligors which is incorporated in
Norway) it shall and shall procure that it and each of its
Subsidiaries from time to time (the "▇▇▇▇▇ Group") shall,
immediately when requested to do so by the Agent, execute all
such documents and so all such acts and things (and shall
procure any other member of the ▇▇▇▇▇ Group to execute all
such documents and do all such acts and things), as may
reasonably be required by the Agent (acting on the
instructions of the Majority Banks) and which may lawfully be
done for the purpose of ensuring that all assets of the ▇▇▇▇▇
Group are duly charged as security for the obligations of the
Norwegian Borrowers hereunder and procure to keep the Agent
informed about any new asset they acquire during the loan
period which could be provided as security for the Norwegian
Loan Amount;
(z) UPC debt to be reduced first
----------------------------
(in the case of the Parent) it shall ensure that during the
Reduction Period and in making any prepayment pursuant to
clause 6.5, and so long as such action does not result in any
adverse taxation, legal or other material consequences, the
aggregate of the Advances outstanding to the Parent shall be
reduced in accordance with the terms of this Agreement in
preference to the aggregate of the Advances outstanding to any
other Borrower by procuring, where appropriate, that the
Restricted Subsidiaries make intercompany loans directly or
indirectly to the Parent to enable the relevant Advances made
to the Parent under this Agreement to be repaid as required by
clause 6 provided that this clause shall not require Telekabel
Wien to make any loans to CNA or other members of the
Restricted Group incorporated in Austria except in accordance
with Austrian law and shall not require or permit Telekabel
Wien to make any loans to any other person other than CNA or
other members of the Restricted Group incorporated in Austria;
(aa) Radio Public Articles of Association
------------------------------------
59
(in the case of the Parent) it shall procure that on or prior
to the date falling 150 days after the date of this Agreement,
the Articles of Association of Radio Public shall be amended
to a form acceptable to the Agent, which form will permit
Radio Public to give the Guarantee contained in clause 9
(subject always to the provisions of clause 9.1) and promptly
upon such amendment taking place provide a copy of such
amended Articles of Association to the Agent together with a
certified English translation thereof;
(ab) Radio Public Bond
-----------------
the Parent shall either (i) procure that on the date of the
Philips Advance or as soon as practicable thereafter, Radio
Public shall redeem and cancel the Radio Public Bond in full
or (ii) on the date of the Philips Advance or as soon as
practicable thereafter, enter into such arrangements as may be
satisfactory to the Banks so as to ensure that all of the
Parent's right, title, benefit and interest under the Radio
Public Bond is assigned to the Security Trustee and that,
provided that such action is at the time acceptable to the
Majority Banks, Radio Public makes a loan to the Parent in a
principal amount equal to the principal amount of the Radio
Public Bond, the interest in respect of which will be set off
against the interest payable under the Radio Public Bond;
(ac) Norwegian I/C Indebtedness
--------------------------
the Parent shall ensure that on the occurrence of the
Norwegian Merger the equivalent of NOK 600,000,000 of the
Norwegian I/C Indebtedness is converted into equity share
capital of New ▇▇▇▇▇, and that all such equity share capital
is pledged to the Security Trustee on the same terms and
conditions as the Norwegian Share Security. As a condition
precedent to the first Advance made to the Norwegian Borrowers
the Parent shall ensure that such arrangements as may be
satisfactory to the Banks are entered into so as to ensure
that all of the Parent's right, title, benefit and interest in
respect of the Norwegian I/C Indebtedness is assigned to the
Security Trustee; and
(ad) ▇▇▇▇▇ Loan Agreement
--------------------
(in the case of the Parent) ensure that, as a condition
precedent to the first Advance made to the Norwegian
Borrowers, such arrangements as may be satisfactory to the
Banks are entered into so as to ensure that all of the
Parent's right, title benefit and interest in respect of the
▇▇▇▇▇ Loan Agreement is assigned to the Security Trustee.
(ae) ASLK Facility
-------------
(in the case of the Parent and/or Radio Public) (i) ensure
that Radio Public makes no drawing under the ASLK Facility
unless and until all security (including, but not limited to,
the subordination agreement relating to the Radio Public Bond
and any other pledges or charges granted to ASLK Bank N.V.)
granted in connection with the ASLK Facility has been released
and (ii) ensure that all such security granted in connection
with the ASLK Facility is so released within seven days of the
date of this Agreement.
(af) Instructions as to debt
-----------------------
(in the case of CNA) (i) ensure that at all times each other
Telekabel Entity has received a valid, irrevocable and
unconditional instruction to assume debt ("Anweisung auf
▇▇▇▇▇▇") stating that CNA's interest in any Distributable
Profits, to the extent that at any time it exceeds the
principal amount of intercompany loans made by that Telekabel
Entity to CNA pursuant to clause 11.1(z) which are outstanding
at that time, is to be owed by such Telekabel Entity to the
Agent pursuant to the Guarantee, and (ii) ensure that it calls
all relevant shareholders meetings of each Telekabel Entity to
vote upon the amount of Distributable Profits and votes its
shares in each Telekabel Entity so as to
60
ensure that at all times the amount of Distributable Profits
of such Telekabel Entity is the maximum amount legally
possible for such Telekabel Entity.
11.2 Negative Covenants
------------------
Each Obligor in respect of itself and its Subsidiaries which are
members of the Restricted Group undertakes with each of the Banks, the
Security Trustee, the Arranger and the Agent that, from the date of
this Agreement and so long as any moneys are owing under this Agreement
or remain available for drawing by the Borrowers, without the prior
written consent of the Agent acting on the instructions of the Majority
Banks:
(a) Negative pledge
---------------
save for Encumbrances created by the Security Documents, it
will not permit any Encumbrance (other than the Permitted
Encumbrances) by any member of the Restricted Group to
subsist, arise or be created or extended over all or any part
of their respective present or future undertakings, assets,
rights or revenues to secure or prefer any present or future
Indebtedness of any member of the Restricted Group or any
other person;
(b) No merger
---------
it will not merge or consolidate with any other company or
person and it will procure that no member of the Restricted
Group merges or consolidates with any other company or person
save that subject to the compliance with the terms of clause
3.5(c) and 9.16(g):
(i) Norkabelgruppen A/S shall be permitted to merge with
Oslo Kabelanlegg A/S and Norkabel A/S (such merged
company being referred to in this Agreement as "New
Norkabel"); provided that promptly thereafter
(ii) New Norkabel shall be permitted to and shall merge
with ▇▇▇▇▇ Kabel-TV A/S (such merged company being
referred to in this Agreement as "New ▇▇▇▇▇");
(c) Disposals
---------
it will not and will procure that no other member of the
Restricted Group will sell, transfer, lend or otherwise
dispose of or cease to exercise direct control over any part
of its present or future undertaking, assets, rights or
revenues whether by one or a series of transactions related or
not (other than (i) Permitted Disposals made as part of the
Restructuring, (ii) transfers, sales and disposals pursuant to
the Norwegian Merger, (iii) transfers, sales and disposals the
proceeds of which are applied in prepayment of the Loan
pursuant to clause 6.5 and (iv) transfers, sales and disposals
made to another member of the Restricted Group incorporated in
the same Relevant Jurisdiction provided that there is no
material adverse effect on the security position of the Banks
and there is no breach of any Licence) unless both (A) in
respect of each of the two most recent previous consecutive
Quarterly Periods, the ratio of Total Debt to Total Annualised
Net Operating Cash Flow (calculated on the last day of each
such Quarterly Period and as shown in the Compliance
Certificates for the two Quarterly Periods ending immediately
prior to such date) is less than and remains below 4:1 and (B)
such transfers, sales or disposals are conducted on arms'
length terms for full consideration in the ordinary course of
trading;
(d) Intra-Group accounts
--------------------
(without limiting the generality of clause 11.2(c) and other
than (i) the refinancing of the Telekabel Bond, (ii) as
envisaged by the terms of the Securities Purchase and
Conversion Agreement and (iii) the conversion of the Norwegian
I/C Indebtedness into
61
equity securities in New ▇▇▇▇▇ as part of the Norwegian
Merger) it will not subordinate, postpone, defer, assign or
otherwise dispose of or deal with, any Indebtedness owing to
it by any member of the Restricted Group and will procure that
no member of the Restricted Group will subordinate, postpone,
defer, assign or otherwise dispose of or deal with, any
Indebtedness owing to it by any other member of the Restricted
Group;
(e) Loans and guarantees
--------------------
it will not, and will procure that no member of the Restricted
Group will, make any loans, grant any credit (save for normal
trade credit in the ordinary course of day-to-day trading) or
give any guarantee to or for the benefit of any person other
than (i) to or for the benefit of members of the Unrestricted
Group in an aggregate amount (when aggregated with the amount
of all transactions falling within clause 11.2(h)(i), (ii) and
(iii)) not in excess of NLG 80,000,000 (or its equivalent in
other currencies) or (ii) to or for the benefit of another
member of the Restricted Group or (iii) as envisaged by the
terms of the Securities Purchase and Conversion Agreement or
(iv) if, in respect of each of the two most recent previous
consecutive Quarterly Periods, the ratio of Total Debt to
Total Annualised Net Operating Cash Flow (calculated on the
last day of each such Quarterly Period and as shown in the
Compliance Certificates for the two Quarterly Periods ending
immediately prior to such date) is less than and remains below
3:1;
(f) Borrowed Money
--------------
(i) it will not and will procure that the Restricted
Group (taken as a whole) and the Bridge Borrower
taken together will not incur Borrowed Money in
excess of NLG 1,300,000,000 to be outstanding at any
time; and
(ii) it will not and will procure that no member of the
Restricted Group will create, assume, incur or
otherwise permit to be outstanding any Borrowed Money
(other than Permitted Borrowings and other than as
envisaged by the terms of the Securities Purchase and
Conversion Agreement) Provided that, during the
Reduction Period, the Parent and/or any member of the
Restricted Group may create, assume, incur or
otherwise permit to be outstanding any such Borrowed
Money if the ratio of Total Debt (calculated as at
the relevant date and including the principal amount
of such Borrowed Money) to Total Annualised Net
Operating Cash Flow (as shown in the most recent
Compliance Certificate delivered to the Agent
pursuant to this Agreement) is less than and remains
below 3:1;
(g) Issue of shares
---------------
other than pursuant to the Norwegian Merger or as envisaged by
the terms of the Securities Purchase and Conversion Agreement,
it will not and will procure that no member of the Restricted
Group reduces its capital or purchases any class of its shares
and that no member of the Restricted Group issues any shares
of any class save that:
(i) any member of the Restricted Group may issue shares
to any other member of the Restricted Group so long
as such shares are charged or pledged in favour of
the Security Trustee pursuant to the terms of a
Security Document and there are delivered at the same
time to the Security Trustee the relevant share
certificates and blank stock transfer forms (or
equivalent documents) in respect thereof together
with such other documents and evidence and legal
opinions as the Agent may require;
(ii) the Parent shall be entitled to (a) issue ordinary
shares to UIH or any wholly owned Subsidiary of UIH,
(b) issue ordinary shares to Stichting
Administratiekantoor UPC B.V. in accordance with the
Stock Option Plan and
62
(c) issue ordinary shares pursuant to an initial
public offering with the consent of all of the Banks;
(iii) ▇▇▇▇▇ may, with the prior written consent of all of
the Banks, issue equity share capital to a recognised
telecommunications company or other person acceptable
to the Majority Banks provided that the proceeds of
such issue are used by ▇▇▇▇▇ to fund the capital
expenditure requirements to provide
telecommunications services in the cable systems
operated by ▇▇▇▇▇; and
(iv) Telekabel Wien may reclassify into nominal share
capital such of the Relevant Reserves as may be
necessary to ensure that the nominal share capital of
Telekabel Wien is equal to 337,300,000 Austrian
Schillings.
(h) Investments
-----------
other than as envisaged by the terms of the Securities Purchase and
Conversion Agreement it will not and will procure that no member of the
Restricted Group:
(i) makes any loan or advance to, or enters into any
transaction having the effect of lending money with,
any person (other than another member of the
Restricted Group) or otherwise acquires for a
consideration any document evidencing Indebtedness,
capital stock or other securities of any person
(other than another member of the Restricted Group);
or
(ii) acquires all or any substantial part of the assets,
property or business of any other person (other than
another member of the Restricted Group) or any assets
that constitute a division or operating unit of the
business of any other person (other then another
member of the Restricted Group); or
(iii) creates or acquires any Subsidiary,
save that the members of the Restricted Group may undertake
transactions referred to in clause 11.2(h)(i)(ii)(iii) in relation to
the Unrestricted Group provided that the aggregate amount in respect of
such transactions (when aggregated with those transactions referred to
in clause 11.2(e)(i)) shall not be in excess of NLG 80,000,000 (or its
equivalent in other currencies) and Provided that:
(A) the Parent shall be permitted to subscribe for
capital stock in the Bridge Borrower for a
consideration of not more than NLG 60,000,000 in
aggregate so long as the Parent shall procure that
the proceeds of such subscription are used promptly
to fund the acquisition by Cable Network Brabant
Holding N.V. of Stichting Combivisie Regio and
Setelco B.V. and
(B) the Parent and/or any other member of the Restricted
Group may make such loans or acquisitions if, in
respect of each of the two most recent previous
consecutive Quarterly Periods, the ratio of Total
Debt to Total Annualised Net Operating Cash Flow
(calculated on the last day of each such Quarterly
Period and as shown in the Compliance Certificates
for the two Quarterly Periods ending immediately
prior to such date) is less than, and remains below
3:1;
(i) Capital expenditure
-------------------
it will not and will procure that no member of the Restricted Group
incurs any capital expenditure other than in relation to the business
of constructing, installing, operating and utilising cable television,
telecommunications and data service systems in the territories covered
by the Licences or any directly related business reasonably considered
to be financially beneficial thereto;
63
(j) Swaps and hedging
-----------------
it will not and will procure that no member of the Restricted Group
enters into any interest rate or currency swaps or other hedging
arrangements other than non-speculative arrangements directly relating
to the risk management of any Borrowed Money permitted to subsist by
the terms of this Agreement and entered into in the ordinary course of
the business for the genuine hedging of the relevant underlying
transaction;
(k) Subordination of shareholder funding
------------------------------------
(i) (in the case of the Parent only) other than payments
to be made in consummation of the Philips Transaction
in accordance with the terms of the Securities
Purchase and Conversion Agreement, and other than
payments made to UIH in relation to the secondment of
UIH employees to the Parent described in paragraph
(j) of the definition of "Permitted Borrowings"
contained in clause 1.2, it will not make to any
Relevant Person (a) any direct or indirect
distribution, dividend or other payment (whether in
cash, securities, property or otherwise), including,
without limitation, any loan or any payment on
account of any class of its share capital or capital
stock or other securities, or any interest thereon,
(b) any transfer of assets or (c) any payment
(whether in cash, securities, property or otherwise)
of principal of, or interest on, any debt made
available to it by any Relevant Person unless (i) in
respect of each of the two most recent previous
consecutive Quarterly Periods, the ratio of Total
Debt to Total Annualised Net Operating Cash Flow
(calculated on the last day of each such Quarterly
Period), each as demonstrated in the Compliance
Certificates for the two Quarterly Periods ending
immediately prior to such date, is less than, and
remains below, 3:1, and (ii) no Default has occurred
or would occur or be reasonably likely to occur as a
result of such distribution, transfer or payment
Provided that (x) the Parent shall be permitted to
redeem the S.A.R. for cash in accordance with the
terms of the Securities Purchase and Conversion
Agreement with the prior written consent of the
Majority Banks or by using such part of the net
proceeds received by the Parent from an initial
public offering of shares in the Parent as are not
required to be used to prepay the Loan pursuant to
clause 6.5 and (y) the Parent shall be permitted to
use securities to redeem the S.A.R. or to redeem,
refinance or make any payment in connection with any
preference shares issued in accordance with the terms
of the Securities Purchase and Conversion Agreement,
in each case as envisaged by the Securities Purchase
and Conversion Agreement;
(ii) (in the case of ▇▇▇▇▇ and/or New ▇▇▇▇▇ only) it will
not make to any Relevant ▇▇▇▇▇ Person (a) any direct
or indirect distribution, dividend or other payment
(whether in cash, securities, property or otherwise),
including, without limitation any loan or any payment
on account of its share capital or capital stock or
other securities or any interest thereon, (b) any
transfer of assets or (c) any payment (whether in
cash, securities, property or otherwise) of principal
of, or interest on, any debt made available to it by
any Relevant ▇▇▇▇▇ Person, other than pursuant to the
Option Agreements (in their form as at the date of
this Agreement) unless (i) in respect of each of the
two most recent previous consecutive Quarterly
Periods, the ratio of Total Debt to Total Annualised
Net Operating Cash Flow (calculated on the last day
of each such Quarterly Period), each as demonstrated
in the Compliance Certificates for the two Quarterly
Periods ending immediately prior to such date, is
less than, and remains below, 3:1, and (ii) no
Default has occurred or would occur or would be
reasonably likely to occur as a result of such
distribution, transfer or payment.
64
(iii) (in the case of the Telekabel Entities only) they
will not make to any Relevant Telekabel Person (a)
any direct or indirect distribution, dividend or
other payment (whether in cash, securities, property
or otherwise), including, without limitation, any
loan or any payment on account of their share capital
or capital stock or other securities or any interest
thereon, (b) any transfer of assets or (c) any
payment (whether in cash, securities, property or
otherwise) of principal of, or interest on, any debt
made available to any of them by any Relevant
Telekabel Person, other than pursuant to the Austrian
Agreements (in their form as at the date of this
Agreement) unless (i) in respect of each of the two
most recent previous consecutive Quarterly Periods,
the ratio of Total Debt to Total Annualised Net
Operating Cash Flow (calculated on the last day of
each such Quarterly Period), each as demonstrated in
the Compliance Certificates for the two Quarterly
Periods ending immediately prior to such date, is
less than, and remains below, 3:1, and (ii) no
Default has occurred or would occur or would be
reasonably likely to occur as a result of such
distribution, transfer or payment Provided that if at
any time any Telekabel Entity makes any payment of
Distributable Profits to the Agent pursuant to any
instruction ("Anweisung auf ▇▇▇▇▇▇") given to it by
CNA, the amount of Distributable Profits which are
not subject to such instruction may be paid by such
Telekabel Entity to the Relevant Telekabel Person
entitled thereto;
For the avoidance of doubt (A) this clause 11.2(k) shall not
prevent any payments, distributions or transfers from one
member of the Restricted Group to another member of the
Restricted Group and (B) this clause 11.2(k) shall not prevent
the performance of any contracts for the provision of goods
and services on bona fide arms length commercial terms between
the Telekabel Entities and any Relevant Telekabel Person;
(l) Change of business
------------------
it will not and will procure that the Restricted Group (taken
as a whole) does not change the nature of the business carried
on by it in any material respect from that carried on at the
date of this Agreement and that no member of the Restricted
Group ceases to carry on a business where any such cessation
would or is reasonably likely to have a Material Adverse
Effect;
(m) Constitutive documents
----------------------
save for (i) the amendment of the constitutive documents of
the Parent envisaged by the Securities Purchase and Conversion
Agreement, (ii) the amendments to constitutive documents
necessary to enable the Norwegian Merger to take place and
(iii) the amendments to the constitutive documents of Radio
Public referred to in clause 11.1(aa), it will not, and will
procure that none of members of the Restricted Group amends
its constitutive documents in any way which would or is
reasonably likely to adversely affect (in terms of value,
enforceability or otherwise) the charge or pledge granted to
the Security Trustee pursuant to the Share Securities;
(n) Securities Purchase and Conversion Agreement
--------------------------------------------
(in the case of the Parent) it will not permit any material
amendment to be made to the Securities Purchase and Conversion
Agreement (or any document, instrument or agreement entered
into in connection therewith) without the prior written
consent of the Agent (acting on the instructions of the
Majority Banks); and
(o) Indemnity payments
------------------
(in the case of the Parent) it will not make any payment to
Philips Electronics N.V. (or any Subsidiary or Associated
Company thereof) ("Philips") in respect of the indemnity
granted or to be granted by the Parent to Philips pursuant to
the Securities Purchase and
65
Conversion Agreement in connection with the obligations of
Philips under the Vienna Agreements (as defined in the
Securities Purchase and Conversion Agreement) until, in
respect of each of the two most recent previous consecutive
Quarterly Periods, the ratio of Total Debt to Total Annualised
Net Operating Cash Flow (calculated on the last day of each
such Quarterly Period), each as demonstrated in the Compliance
Certificates for the two Quarterly Periods ending immediately
prior to such date, is less than, and remains below, 3:1.
12 Financial covenants
-------------------
12.1 Pre Philips Advance Covenants
-----------------------------
The Parent undertakes with each of the Banks, the Arranger, the
Security Trustee and the Agent to ensure that at all times the ratio of
Total Debt to Total Annualised Net Operating Cash Flow (calculated on
each Quarter Day by reference to the Six Month Period ending on such
day) shall not exceed 5:1 at all times prior to the date that the
Philips Advance is made (but, for the avoidance of doubt not on or
after such date).
12.2 Post Philips Advance Covenants
------------------------------
From the date that the Philips Advance is made the Parent undertakes
with each of the Banks, the Arranger, the Security Trustee and the
Agent:
(a) Total Debt/Total Annualised Net Operating Cash Flow
---------------------------------------------------
to ensure that at all times during the periods set out in
column (1) below the ratio of Total Debt to Total Annualised
Net Operating Cash Flow (calculated on each Quarter Day by
reference to the Six Month Period ending on such day) shall
not exceed the ratio set out against such period in column (2)
below:
=================================================== =====================================
(1) (2)
Period Ratio
--------------------------------------------------- -------------------------------------
up to (and including) 31st December, 1998 8.25:1
--------------------------------------------------- -------------------------------------
from 1st January, 1999 to 30th June, 1999 6.75:1
--------------------------------------------------- -------------------------------------
from 1st July, 1999 to 31st December, 1999 6.5:1
--------------------------------------------------- -------------------------------------
from 1st January, 2000 to 31st December, 2000 5.5:1
--------------------------------------------------- -------------------------------------
from 1st January, 2001 to 31st December, 2001 4:1
--------------------------------------------------- -------------------------------------
from 1st January, 2002 3:1
=================================================== =====================================
(b) Total Debt/Cable TV Annualised Net Operating Cash Flow
------------------------------------------------------
to ensure that at all times up to and including 31st December,
1998 the ratio of Total Debt to Cable TV Annualised Net
Operating Cash Flow (calculated on each Quarter Day by
reference to the Six Month Period ending on such day) shall
not exceed 7:1;
(c) Senior Debt Interest Cover
--------------------------
to ensure that at all times during the periods set out in
column (1) below, the ratio of Total Annualised Net Operating
Cash Flow (calculated on each Quarter Day by reference to the
Six Month Period ending on such day) to the amount of Total
Debt Interest Charges incurred during such Six Month Period
multiplied by two shall be greater than the number set out
against such period in column (2) below:
66
=================================================== ===================================
(1) (2)
Period Ratio
--------------------------------------------------- -----------------------------------
up to (and including) 31st December, 1998 1.5:1
--------------------------------------------------- -----------------------------------
from 1st January, 1999 to 31st December, 1999 1.75:1
--------------------------------------------------- -----------------------------------
from 1st January, 2000 to 30th June, 2000 2:1
--------------------------------------------------- -----------------------------------
from 1st July, 2000 to 31st December, 2000 3:1
--------------------------------------------------- -----------------------------------
from 1st January, 2001 4:1
=================================================== ===================================
(d) Pro-forma Debt Service Cover
----------------------------
(i) to ensure that at all times from (and including) 31st
December, 2000, the ratio of Total Annualised Net
Operating Cash Flow (calculated on each Quarter Day
by reference to the Six Month Period ending on such
day) to Proforma Debt Service shall not be less than
1.2:1; and
(ii) to ensure that at all times from (and including) 31st
March, 2004, the ratio of Total Annualised Net
Operating Cash Flow (calculated in each Quarter Day
by reference to the Six Month Period ending on such
day) to Proforma Debt Service shall not be less than
1.5:1.
12.3 Auditors certificate
--------------------
If at any time the Majority Banks (acting reasonably and following
consultation with the Parent) do not consider that any figure set out
in any Compliance Certificate issued by any Authorised Officer is
correct, they shall be entitled within 30 days of the date of the
delivery of such Compliance Certificate to the Agent pursuant to clause
11.1 to call for a certificate from the Parent's auditors as to such
figure. For such purposes the Parent's auditors shall act as
independent experts and not as arbiters and every such certificate
shall be addressed to the Agent (on behalf of the Banks) and be at the
expense of the Parent (unless the certificate so provided by the
Parent's auditors shows that the relevant figures set out in the
Compliance Certificate are in fact correct in which case such
certificate shall be at the expense of the Banks). The Majority Banks
may only call for one such certificate in any calendar year unless the
relevant figures set out in the Compliance Certificate are in fact
incorrect in which case the Majority Banks may call for up to three
further such certificates in such financial year, provided that if, in
any of such certificates, the relevant figures set out in the
Compliance Certificate are certified as being in fact correct, then the
Majority Banks may not call for such further certificates in such
financial year. If the Majority Banks call for such a certificate all
calculations under this Agreement by reference to the relevant figure
shall (i) until the Parent's auditors deliver the relevant certificate
under this clause 12.3 be made by reference to the figure set out in
the relevant Compliance Certificate delivered to the Agent under this
Agreement and (ii) following the delivery by the Parent's auditors of a
certificate under this clause 12.3 be made by reference to such
certificate and the Parent undertakes forthwith to take all action
including, without limitation, the 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.
67
13 Events of Default
-----------------
13.1 Events of default
-----------------
Each of the events and circumstances set out below is an Event of
Default (whether or not caused by any reason outside the control of an
Obligor):
(a) Non-payment: any Borrower fails to pay any principal sum due
-----------
from it under this Agreement in the currency, at the time and
in the manner stipulated in this Agreement, or any other sum
due from it under this Agreement within three Banking Days of
the due date in the currency and in the manner stipulated in
this Agreement; or
(b) Breach of certain obligations: any Obligor commits any breach
-----------------------------
of or omits to observe any of the obligations or undertakings
expressed to be assumed by it under clauses 11.1(c), (d), (e),
(f), (g), (h), (j)(ii), (k) and (w), clause 11.2(a), (b), (c),
(e), (f),(g), (h), (i), (k) and (n) and clause 12; or
(c) Breach of other obligations: any Obligor commits any breach of
---------------------------
or omits to observe any of the obligations or undertakings
expressed to be assumed by it under this Agreement or the
Security Documents (other than failure to pay any sum when due
or any breach of the undertakings referred to in (b) above)
and, in respect of any such breach or omission which is
capable of remedy, such action as the Agent may require shall
not have been taken within 21 days of the Agent notifying the
relevant Obligor of such default and of such required action;
or
(d) Misrepresentation: any representation or warranty made or
-----------------
deemed to be made or repeated by or in respect of any Obligor
or any other member of the Restricted Group in or pursuant to
this Agreement or the Security Documents or in any notice,
certificate or statement referred to in or delivered under
this Agreement or the Security Documents is or proves to have
been incorrect or misleading in any material respect and, in
the event that the act or circumstance which led to such
representation or warranty being incorrect or misleading is
capable of remedy, such action as the Agent may require shall
not have been taken within 21 days of the Agent notifying the
relevant Obligor of such act or circumstance and such required
action; or
(e) Challenge to security: any Security Document is not or ceases
---------------------
to be effective (other than those Norwegian Security Documents
which are not required by the Agent to be assumed by or
transferred to New ▇▇▇▇▇ at the time of the Norwegian Merger)
or any member of the Restricted Group shall in any way
challenge, or proceedings shall in any way be brought to
challenge, the prior status of the charges created by the
Security Documents or the validity or enforceability of the
Security Documents; or
(f) Cross-default: any Borrowed Money of any member of the
-------------
Restricted Group is not paid when due or any Borrowed Money of
any member of the Restricted Group becomes (whether by
declaration or automatically in accordance with the relevant
agreement or instrument constituting the same) due and payable
prior to the date when it would otherwise have become due or
any creditor of any member of the Restricted Group becomes
entitled to declare any Borrowed Money of any member of the
Restricted Group so due and payable or to require cash
collateralisation or security for any such Borrowed Money or
any facility or commitment available to any member of the
Restricted Group relating to Borrowed Money is withdrawn,
suspended or cancelled by reason of any default (however
described) of the company concerned and the amount, or
aggregate amount at any one time, of all Borrowed Money in
relation to which any of the foregoing events shall have
occurred and be continuing is equal to or greater than NLG
10,000,000 or its equivalent in the currency in which the same
is denominated and payable or if the Bridge Facility becomes
(whether by declaration or automatically in accordance with
the terms of the Bridge Facility Agreement) due and payable
prior to the date when it would otherwise have become due; or
68
(g) Derivatives Contract default: any member of the Restricted
----------------------------
Group fails to make payment in relation to a Derivatives
Contract of any sum equal to or greater than NLG 10,000,000 in
aggregate at any one time (or its equivalent in the relevant
currency of payment) on its due date or the counterparty to a
Derivatives Contract becomes entitled to terminate that
Derivatives Contract early by reason of default on the part of
any member of the Restricted Group and the Net Derivatives
Liability of such member of the Restricted Group, in the
aggregate, under all its Derivatives Contracts at the relevant
time is not less than NLG 10,000,000 (or its equivalent in the
relevant currency); or
(h) Legal process: any judgment or order made against any member
-------------
of the Restricted Group is not stayed or complied with within
14 days or a creditor attaches or takes possession of, or a
distress, execution, sequestration or other process is levied
or enforced upon or sued out against, any material part of the
undertakings, assets, rights or revenues of any member of the
Restricted Group and is not discharged within seven days; or
(i) Insolvency:
----------
(i) any member of the Restricted Group which is domiciled
or which has a branch office in the Netherlands is
declared bankrupt (in staat van faillissement
verklaard) or enters into a preliminary or definitive
moratorium (in voorlopige of definitieve surseance
van betaling gaan) pursuant to the Dutch Bankruptcy
Act (Faillissementswet);
(ii) any "Reorganisationsverfahren", "Ausgleich" or
"Konkurs" under the applicable Austrian Laws is being
opened on the assets of any member of the Restricted
Group organised in Austria or any such member of the
Restricted Group enters into an agreement with its
creditors having the same effect;
(iii) any member of the Restricted Group incorporated in
Belgium is declared bankrupt under the Bankruptcy Act
of 18 April 1851 of Belgium or any replacement
enactment therefor which is entered into after the
date of this Agreement;
(iv) with respect to any member of the Restricted Group
incorporated in Norway, any order of a competent
court or an event analogous thereto shall be made or
any effective resolution passed with a view to the
bankruptcy, composition proceedings, debt
negotiations, liquidation, winding-up or similar
event pursuant to the Norwegian Bankruptcy Act of 8th
June 1984;
(j) Reduction or loss of capital: other than in connection with
----------------------------
the Norwegian Merger or as required in order to consummate the
Philips Transaction a meeting is convened by the Parent or any
of its Subsidiaries for the purpose of passing any resolution
to purchase, reduce or redeem any of its share capital; or
(k) Winding up: any petition is presented and is not discharged
----------
within 14 days or other step is taken for the purpose of
winding up any member of the Restricted Group (not being a
petition which the relevant member of the Restricted Group can
demonstrate to the satisfaction of the Agent, by providing an
opinion of leading counsel to that effect, is frivolous,
vexatious or an abuse of the process of the court or relates
to a claim to which the relevant member of the Restricted
Group has a good defence and which is being vigorously
contested by the relevant member of the Restricted Group) or
an order is made or resolution passed for the winding up of
any member of the Restricted Group or a notice is issued
convening a meeting for the purpose of passing any such
resolution; or
69
(l) Administration: any petition is presented and is not withdrawn
--------------
within 14 days or other step is taken for the purpose of the
appointment of an administrator of any member of the
Restricted Group or the Agent believes that any such petition
or other step is imminent or an administration order is made
in relation to any member of the Restricted Group; or
(m) Appointment of receivers and managers: any administrative or
-------------------------------------
other receiver is appointed of any member of the Restricted
Group or any material part of their respective assets and/or
undertakings or any other steps are taken to enforce any
Encumbrance over all or any part of the assets of any member
of the Restricted Group; or
(n) Compositions: any steps are taken, or negotiations commenced,
------------
by any member of the Restricted Group or by any of their
respective creditors with a view to proposing any kind of
composition, compromise or arrangement involving such company
and any of its creditors; or
(o) Analogous proceedings: there occurs, in relation to any member
---------------------
of the Restricted Group, in any country or territory in which
any of them carries on business or to the jurisdiction of
whose courts any part of their respective assets is subject,
any event which corresponds with, or have an effect equivalent
or similar to, any of those mentioned in clauses 13.1(h) to
13.1(n) (inclusive) or any member of the Restricted Group
otherwise becomes subject, in any such country or territory,
to the operation of any law relating to insolvency, bankruptcy
or liquidation; or
(p) Cessation of business: other than in connection with the
---------------------
Norwegian Merger any member of the Restricted Group suspends
or ceases or threatens to suspend or cease to carry on their
respective businesses; or
(q) Seizure: all or a material part of the undertakings, assets,
-------
rights or revenues of, or shares or other ownership interests
in, any member of the Restricted Group are seized,
nationalised, expropriated or compulsorily acquired by or
under the authority of any government; or
(r) Change of Control:
-----------------
(i) after the date of the Philips Advance and prior to
the Relevant Date, UIH and/or any wholly owned
Subsidiary of UIH ceases (A) to own at least 51% of
the issued share capital of the Parent or (B) to own
at least 51% of the voting rights attributable to the
issued ordinary share capital of the Parent or (C) to
have the right to receive at least 51% of the
dividends or any other distributions by the Parent;
or
(ii) on or after the Relevant Date, (1) UIH and/or any
wholly owned Subsidiary of UIH ceases (A) to own at
least 30% of the issued share capital of the Parent
or (B) to own at least 30% of the voting rights
attributable to the issued share capital of the
Parent or (C) to have the right to receive at least
30% of the dividends or any other distribution by the
Parent or (2) any person or group of persons acting
in concert acquires a shareholding in the Parent
greater than that held by UIH and/or any wholly owned
Subsidiary of UIH;
Provided that if, pursuant to the Securities Purchase and
Conversion Agreement, Philips Media Networks B.V. acquires 50
per cent. of the issued share capital of the Parent and such
acquisition would constitute an Event of Default under this
clause 13.1(r) but for this proviso, then the Banks will
consult with UPC and its shareholders in good faith for a
period of up to 90 days during which period such acquisition
will not constitute an Event of Default. Immediately upon the
ending of such period, if, following such good faith
consultation, the Majority Banks determine that such
acquisition shall constitute
70
an Event of Default, the Agent and the Banks shall be entitled
to exercise their rights under clause 13.2 in respect of such
Event of Default; or
(s) Principal Agreements:
--------------------
(i) save as is required by any term of this Agreement, any
Principal Agreement is terminated, suspended, revoked or
cancelled or otherwise ceases to be in full force and effect
unless services of a similar nature to those provided pursuant
to such Principal Agreement are at all times provided to the
Restricted Group on similar commercial terms or on terms no
less beneficial to the relevant member of the Restricted Group
save where any such services are provided on more onerous
terms to the relevant member of the Restricted Group due to
the mandatory requirements of any regulatory body and any such
termination, suspension, revocation, cancellation or cessation
would have a Material Adverse Effect; or
(ii) any alteration or variation is made to any term of any
Principal Agreement which would have a Material Adverse
Effect; or
(iii) any party breaches any term of or repudiates any of its
obligations under any of the Principal Agreements where such
breach or repudiation would have a Material Adverse Effect; or
(t) Unlawfulness: it becomes unlawful at any time for any Obligor or any
------------
Subordinated Creditor to perform any of their respective material
obligations under this Agreement or the Security Documents or any of
the material obligations of any Obligor or any Subordinated Creditor
under this Agreement or the Security Documents becomes unenforceable in
any way or there ceases to be security over the relevant property or
assets of the relevant Obligor as intended and created by the Security
Documents; or
(u) Environmental matters: as a result of any Environmental Law: (a) the
---------------------
Agent, the Arranger, the Security Trustee or any of the Banks becomes,
in the opinion of the Agent, subject to a material obligation (actual
or contingent, in the case of any contingent obligation, being one
which, at the relevant time, would be likely to arise) in relation to
any Relevant Substance on or from any property, owned, occupied or
leased by any member of the Restricted Group; or (b) the rights and
claims of the Agent, the Arranger, the Security Trustee, or any of the
Banks under this Agreement or any of the Security Documents become
subordinated to the claims and rights of any competent agency of any
Relevant Jurisdiction or the European Community; or
(v) Telecommunications and Cable Laws: any member of the Restricted Group
---------------------------------
fails to comply with any term or condition of any Telecommunications
and Cable Law where such non-compliance would or is reasonably likely
to have a Material Adverse Effect; or
(w) Repudiation: any member of the Restricted Group repudiates this
-----------
Agreement or any Security Document to which it is a party or does or
causes or permits to be done any act or thing evidencing an intention
to repudiate this Agreement or any such Security Document; or
(x) Subordinated Creditors:
----------------------
(i) any Subordinated Creditor commits any breach of or omits to
observe any of the obligations or undertakings expressed to be
assumed by it under a Deed of Subordination and in respect of
any such breach or omission which, in the opinion of the Agent
(acting on the instructions of the Majority Banks (acting
reasonably)) is capable of remedy, such action as the Agent
may require shall
71
not have been taken within 21 days of the Agent notifying such
Subordinated Creditor thereof and of such required action; or
(ii) any representation or warranty made or deemed to be made or
repeated by or in respect of any Subordinated Creditor in or
pursuant to any Deed of Subordination is or proves to have
been incorrect or misleading in any material respect on the
date on which it was made or deemed to be made or repeated
and, in the event that the act or circumstance which led to
such representation or warranty being incorrect or misleading
is capable of remedy, such action as the Agent may require
shall not have been taken within 21 days of the Agent
notifying the relevant Subordinated Creditor of such act or
circumstance and such required action; or
(iii) any Subordinated Creditor is not or ceases to be bound by a
Deed of Subordination; or
(iv) any payment due from a member of the Restricted Group to a
Subordinated Creditor is not or ceases to be subordinated to
the amounts owing under this Agreement; or
(v) any Subordinated Creditor or any liquidator, administrator or
administrative or other receiver (or similar officer) of any
Subordinated Creditor takes steps to contest the subordination
effected by a Deed of Subordination; or
(y) Security Documents:
------------------
(i) any Security Provider commits any breach of or omits to
observe any of its obligations or undertakings expressed to be
assumed by it under any Security Document and in respect of
any such breach or omission which is capable of remedy, such
action as the Agent may require shall not have been taken
within 21 days of the Agent and/or the Security Trustee
notifying such Security Provider thereof of such required
action; or
(ii) any representation or warranty made or deemed to be made or
repeated by or in respect of any Security Provider in or
pursuant to any Security Document is or proves to have been
incorrect or misleading in any material respect on the date on
which it was made or deemed to be made or repeated and, in the
event that the act or circumstance which led to such
representation or warranty being incorrect or misleading is
capable of remedy, such action as the Agent and/or the
Security Trustee may require shall not have been taken within
21 days of the Agent and/or the Security Trustee notifying the
relevant Security Provider of such act or circumstance and
such required action; or
(iii) any Security Provider is not or ceases to be bound by any
Security Document; or
(iv) any Security Document is not or ceases to constitute a valid
security interest over the relevant assets of the relevant
Security Provider in accordance with its terms; or
(v) any Security Provider or any liquidator, administrator or
administrative or other receiver (or similar officer) of any
Security Provider takes steps to contest any Security Document
and/or encumbrance effected by a Security Document; or
(z) Material events: any other event occurs or circumstances arise which in
----------------
the opinion of the Agent acting on the instructions of the Majority
Banks is likely to have a Material Adverse Effect; or
72
(aa) Qualification of accounts: the auditors of any member of the
-------------------------
Restricted Group qualify their report on the audited financial
statements of the relevant member of the Restricted Group
and/or the audited consolidated financial statements of the
Restricted Group in any way whatsoever except where the
qualification is of a technical nature and the remedy for the
matter giving rise to the qualification would have no effect
on the results of the relevant member of the Restricted Group
for the period to which such accounts relate or on the
financial position of the relevant member of the Restricted
Group as at the end of such period; or
(ab) Failure to borrow the Philips Advance: the Parent fails to
-------------------------------------
draw down the Philips Advance in accordance with the terms of
this Agreement on or before the date falling 180 days after
the date of the first Advance (or such other date as may be
agreed by the Agent (acting on the instructions of all of the
Banks acting reasonably)) and there occurs an Event of Default
pursuant to clause 4.10(b).
13.2 Acceleration
------------
The Agent may and if so requested by the Majority Banks shall, without
prejudice to any other rights of the Banks, at any time after the
happening of an Event of Default so long as the same is continuing,
unremedied or unwaived by notice to the Parent declare that:
(a) the obligation of each Bank to make its Commitment available
shall be terminated, whereupon the Total Commitments shall be
reduced to zero forthwith; and/or
(b) all outstanding Advances and all interest and commitment
commission accrued and all other sums payable under this
Agreement have become immediately due and payable or have
become due and payable on demand, whereupon the same shall,
immediately or in accordance with the terms of such notice,
become so due and payable; and/or
(c) the Security Documents (or any of them) have become
enforceable whereupon the same shall be enforceable.
On or at any time after the making of any such declaration, the Agent
shall be entitled, to the exclusion of the Borrowers (and without
prejudice to clause 5.3), to select the duration of each period for the
calculation of interest in relation to any outstanding Advances or
other sums payable under this Agreement Provided that the Agent agrees
that, without prejudice to any of its other rights under this
Agreement, it shall not accelerate the due date of any sums payable by
Telekabel Wien until 28 days after the date that the Agent has given
notice to Telekabel Wien that a Default has occurred unless at such
time (i) Telekabel Wien has breached any of its obligations under this
Agreement or (ii) an Event of Default has otherwise occurred in
relation to Telekabel Wien, in which case such 28 day grace period (or
any unexpired part thereof) shall not apply.
13.3 Demand basis
------------
If, pursuant to clause 13.2(b), the Agent declares all outstanding
Advances to be due and payable on demand then the Agent may (and, if so
instructed by the Majority Banks, shall) at any time by written notice
to the Parent (a) call for repayment of the Advances on such date as
may be specified in such notice whereupon the Advances shall become due
and payable on the date so specified together with all interest and
commitment commission accrued and all other sums payable under this
Agreement or (b) withdraw such declaration with effect from the date
specified in such notice.
73
14 Indemnities
-----------
14.1 Miscellaneous indemnities
-------------------------
The Parent shall on demand indemnify each Bank, the Arranger and the
Agent, without prejudice to any of their other rights under this
Agreement and the Security Documents, against any loss (including loss
of Margin) or expense which such Bank, the Arranger or the Agent shall
certify as sustained or incurred by it as a consequence of:
(a) any default in payment by any Obligor of any sum under this
Agreement or any of the Security Documents when due;
(b) the occurrence of any other Event of Default;
(c) any prepayment of all or part of any Advance or being made
otherwise than on its Maturity Date; or
(d) any Advance not being made or issued for any reason (excluding
any default by the Agent, the Arranger or any Bank) after a
Drawdown Notice has been given;
including, in any such case, but not limited to, any loss or expense
sustained or incurred by such Bank in maintaining or funding all or any
part of its Contribution or in liquidating or re-employing deposits
from third parties acquired or contracted for to fund all or any part
of its Contribution or any other amount owing to such Bank.
14.2 Currency of account; currency indemnity
---------------------------------------
No payment by any Obligor under this Agreement which is made in a
currency other than the currency ("Contractual Currency") in which such
payment is required to be made pursuant to this Agreement shall
discharge the obligation in respect of which it is made except to the
extent of the net proceeds in the Contractual Currency received by the
Agent upon the sale of the currency so received, after taking into
account any premium and costs of exchange in connection with such sale.
For the avoidance of doubt the Agent, the Arranger, the Security
Trustee and the Banks shall not be obliged to accept any such payment
in a currency other than the Contractual Currency nor shall the Agent,
the Arranger, the Security Trustee or the Banks be liable to any
Obligor for any loss or alleged loss arising from fluctuations in
exchange rates between the date on which such payment is so received by
the Agent and the date on which the Agent effects such sale, as to
which the Agent shall (as against the relevant Obligor) have an
absolute discretion. If any sum due from any Obligor under this
Agreement or any order or judgment given or made in relation hereto is
required to be converted from the Contractual Currency or the currency
in which the same is payable under such order or judgment (the "first
currency") into another currency (the "second currency") for the
purpose of (a) making or filing a claim or proof against the relevant
Obligor, (b) obtaining an order or judgment in any court or other
tribunal or (c) enforcing any order or judgment given or made in
relation to this Agreement, the relevant Obligor shall indemnify and
hold harmless the Agent, the Arranger, the Security Trustee and each
Bank from and against any loss suffered as a result of any difference
between (i) the rate of exchange used for such purpose to convert the
sum in question from the first currency into the second currency and
(ii) the rate or rates of exchange at which the Agent, the Arranger,
the Security Trustee or such Bank may in the ordinary course of
business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of
any such order, judgment, claim or proof. Any amount due from any
Obligor under the indemnity contained in this clause 14.2 shall be due
as a separate debt and shall not be affected by judgment being obtained
for any other sums due under or in respect of this Agreement and the
term "rate of exchange" includes any premium and costs of exchange
payable in connection with the purchase of the first currency with the
second currency.
14.3 Environmental indemnity
-----------------------
74
The Parent agrees to indemnify on demand each Bank, the Arranger, the
Security Trustee and the Agent, and their respective officers,
employees, agents and delegates (together the "Indemnified Parties") in
respect of which each Bank, the Arranger, the Security Trustee and the
Agent holds this indemnity on trust, without prejudice to any of their
other rights under this Agreement, against any loss, liability, action,
claim, demand, cost, expense, fine or other outgoing whatsoever whether
in contract, tort, delict or otherwise and whether arising at common
law, in equity or by statute which the relevant Indemnified Party shall
certify as sustained or incurred by it at any time as a consequence of,
or relating to, or arising directly or indirectly out of, any
Environmental Claims made or asserted against such Indemnified Party
which would not have arisen if this Agreement had not been executed and
which was not caused by the negligence or wilful default of the
relevant Indemnified Party.
75
15 Unlawfulness and increased costs; mitigation
--------------------------------------------
15.1 Unlawfulness
------------
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Advances or to maintain its Commitment or fund its
Contribution, such Bank shall promptly, through the Agent, notify the
Parent whereupon (a) such Bank's Commitment shall be reduced to zero
and (b) the Borrowers shall be obliged to prepay the Contribution of
such Bank either (i) forthwith or (ii) on a future specified date not
being earlier than the latest date permitted by the relevant law or
regulation. Any prepayment pursuant to this clause 15.1 shall be made
together with all amounts referred to in clause 6.4.
15.2 Increased costs
---------------
If the result of any change in, or in the interpretation or application
of, or the introduction of, any law or any regulation, request or
requirement (whether or not having the force of law, but, if not having
the force of law, with which the relevant Bank or, as the case may be,
its holding company habitually complies), including (without
limitation) those relating to Taxation, capital adequacy, liquidity,
reserve assets, cash ratio deposits and special deposits, is to:
(a) subject any Bank to Taxes or change the basis of Taxation of
any Bank with respect to any payment under this Agreement
(other than Taxes or Taxation on the overall net income,
profits or gains of such Bank imposed in the jurisdiction in
which its principal or lending office under this Agreement is
located); and/or
(b) increase the cost to, or impose an additional cost on, any
Bank or its holding company in making or keeping available all
or part of such Bank's Commitment or maintaining or funding
all or part of such Bank's Contribution; and/or
(c) reduce the amount payable or the effective return to any Bank
under this Agreement; and/or
(d) reduce any Bank's or its holding company's rate of return on
its overall capital by reason of a change in the manner in
which it is required to allocate capital resources to such
Bank's obligations under this Agreement; and/or
(e) require any Bank or its holding company to make a payment or
forgo a return calculated by reference to or on any amount
received or receivable by such Bank under this Agreement;
and/or
(f) require any Bank or its holding company to incur or sustain a
loss (including a loss of future potential profits) by reason
of being obliged to deduct all or part of such Bank's
Commitment or Contribution from its capital for regulatory
purposes,
then and in each such case (but subject to clause 15.3):
(i) such Bank shall notify the Parent through the Agent in writing
of such event promptly upon its becoming aware of the same;
and
(ii) the Parent shall on demand, made at any time whether or not
such Bank's Contribution has been repaid, pay to the Agent for
the account of such Bank the amount which such Bank specifies
(in a certificate setting forth the basis of the computation
of such amount but not including any matters which such Bank
or its holding company regards as confidential) is required to
compensate such Bank and/or its holding company for such
liability to Taxes, increased or additional cost, reduction,
payment, forgone return or loss.
76
For the purposes of this clause 15.2 and clause 15.4 "holding company"
means, in relation to a Bank, the company or entity (if any) within the
consolidated supervision of which such Bank is included.
15.3 Exceptions
----------
Nothing in clause 15.2 shall entitle any Bank to receive any amount in
respect of compensation for any such liability to Taxes, increased or
additional cost, reduction, payment, forgone return or loss to the
extent that the same:
(a) is taken into account in calculating the Additional Cost; or
(b) is the subject of an additional payment under clause 8.5; or
(c) arises as a consequence of (or of any law or regulation
implementing) (i) the proposals for international convergence
of capital measurement and capital standards published by the
Basle Committee on Banking Regulations and Supervisory
Practices in July 1988 and/or (ii) any applicable directive of
the European Union (in each case) unless it results from any
change in, or in the interpretation or application of, such
proposals or any such applicable directive (or any law or
regulation implementing the same) occurring after the date
hereof; or
(d) arises as a result of a breach by such Bank of any regulation,
request or requirement (which either (i) is in existence at
the date of this Agreement or (ii) which comes into effect
after the date of this Agreement and with which such Bank
would have complied if such regulation, request or requirement
was in effect on the date of this Agreement) of any applicable
central bank or other fiscal, monetary or other authority
(whether or not having the force of law).
For the purposes of clause 15.3(c) the term "applicable directive"
means (exclusively) each of the Own Funds Directive (89/299/EEC of 17th
April 1989) and the Solvency Ratio Directive (89/647/EEC of 18th
December 1989).
15.4 Mitigation
----------
If circumstances arise which would, or would upon the giving of notice,
result in:
(a) the application of clause 5.6 in relation to any Bank;
(b) any Obligor being required to make an increased payment to any
Bank pursuant to clause 8.5;
(c) the reduction of any Bank's Commitment to zero or the
Borrowers being required to prepay any Bank's Contribution
pursuant to clause 15.1; or
(d) the Parent being required to make a payment to any Bank to
compensate such Bank or its holding company for a liability to
Taxes, increased or additional cost, reduction, payment,
forgone return or loss pursuant to clause 15.2(ii);
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Parent or the Borrowers under clause 8 and this
clause 15, such Bank shall, in consultation with the Agent, endeavour
to take such reasonable steps (and/or, in the case of clause 15.2(ii)
and where the increased or additional cost, reduction, payment, forgone
return or loss is that of its holding company, endeavour to procure
that its holding company takes such reasonable steps) as are open to it
(or, as the case may be, its holding company) to mitigate or remove
such circumstances (including (in the case of such Bank) the transfer
of its rights and obligations under this Agreement to another bank or
financial institution acceptable to the Parent) unless the taking of
such steps might (in the opinion of such Bank) be prejudicial to such
Bank (or, as the case may be, its holding company) or be in conflict
with such Bank's (or, as the case may be, its holding company's)
general banking policies or involve such Bank (or, as the
77
case may be, its holding company) in any material expense or any
material increased administrative burden.
78
16 Set-off and pro rata payments
-----------------------------
16.1 Set-off
-------
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is then entitled on any account of such Obligor with such
Bank at any of its branches in or towards satisfaction of any sum then
due and payable from such Obligor to such Bank under this Agreement. For
this purpose each Bank is authorised to purchase with the moneys standing
to the credit of such account such other currencies as may be necessary
to effect such application. No Bank shall be obliged to exercise any
right given to it by this clause 16.1. Each Bank shall notify the Agent
and the relevant Obligor (giving full details) forthwith upon the
exercise or purported exercise of any right of set-off and the Agent
shall inform the other Banks.
16.2 Pro rata payments
-----------------
(a) If at any time any Bank (the "Recovering Bank") receives or
recovers any amount owing to it by any Obligor under this Agreement
by direct payment, set-off or in any manner other than by payment
through the Agent pursuant to clause 8.1 or 8.10 (not being a
payment received from a Substitute in such Bank's Contribution or
any other payment of an amount due to the Recovering Bank for its
sole account pursuant to clauses 6.3, 7, 8.5, 14.1, 14.2, 15 or
15.2), the Recovering Bank shall, within two Banking Days of such
receipt or recovery (a "Relevant Receipt") notify the Agent of the
amount of the Relevant Receipt. If the Relevant Receipt exceeds the
amount which the Recovering Bank would have received if the
Relevant Receipt had been received by the Agent and distributed
pursuant to clause 8.1 or 8.10 (as the case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount equal (or
equivalent) to the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the relevant
Obligor and shall distribute the same to the Banks (other
than the Recovering Bank) in accordance with clause 8.10;
and
(iii) as between the relevant Obligor and the Recovering Bank the
excess amount so re-distributed shall be treated as not
having been paid but the obligations of the relevant Obligor
to the other Banks shall, to the extent of the amount so re-
distributed to them, be treated as discharged.
(b) If any part of the Relevant Receipt subsequently has to be wholly
or partly refunded by the Recovering Bank (whether to a liquidator
or otherwise) each Bank to which any part of such Relevant Receipt
was so re-distributed shall on request from the Recovering Bank
repay to the 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
----------
79
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.
80
17 Assignment, substitution and lending offices
--------------------------------------------
17.1 Benefit and burden
------------------
This Agreement shall be binding upon, and enure for the benefit of, the
Banks, the Arranger, the Agent, the Security Trustee and the Obligors and
their respective successors.
17.2 No assignment by Obligors
-------------------------
None of the Obligors may assign or otherwise transfer any of its rights
or obligations under this Agreement.
17.3 Substitution
------------
Each Bank (an "Existing Bank") may transfer, by way of novation (but not
by way of assignment or otherwise), all or any part (being at least NLG
15,000,000 and an integral multiple of NLG 5,000,000) of its rights,
benefits and/or obligations under this Agreement (including, for the
avoidance of doubt, any outstanding Telekabel Notes) to a Qualifying Bank
(a "Substitute") with the prior consent in writing of the Parent, such
consent not to be unreasonably withheld or delayed. Any such novation
shall be effected upon not less than 5 Banking Days' prior notice by
delivery to the Agent of a duly completed Substitution Certificate duly
executed by the Existing Bank and the Substitute. On the Effective Date
(as specified and defined in a Substitution Certificate so executed and
delivered), to the extent that the Commitment and Contribution of the
Existing Bank are expressed in a Substitution Certificate to be the
subject of the novation in favour of the Substitute effected pursuant to
this clause 17.3, by virtue of the counter-signature of the Substitution
Certificate by the Agent (for itself and the other parties to this
Agreement):
(a) the existing parties to this Agreement and the Security Trust Deed
and the Existing Bank shall be released from their respective
obligations towards one another under this Agreement and the
Security Trust Deed ("discharged obligations") and their respective
rights against one another under this Agreement and the Security
Trust Deed ("discharged rights") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate and
the existing parties to this Agreement and the Security Trust Deed
(other than such Existing Bank) shall assume obligations towards
each other which differ from the discharged obligations only
insofar as they are owed to or assumed by such Substitute instead
of to or by such Existing Bank; and
(c) the Substitute party to the relevant Substitution Certificate and
the existing parties to this Agreement and the Security Trust Deed
(other than such Existing Bank) shall acquire rights against each
other which differ from the discharged rights only insofar as they
are exercisable by or against such Substitute instead of by or
against such Existing Bank;
and, on such Effective Date, the Substitute shall pay to the Agent for
its own account a fee of (Pounds)1,000. The Agent shall promptly notify
the Parent of the receipt by it of any Substitution Certificate and shall
promptly deliver a copy of such Substitution Certificate to the Parent.
17.4 Reliance on Substitution Certificate
------------------------------------
The Agent, the Banks, the Arranger, the Security Trustee and the Obligors
shall be fully entitled to rely on any Substitution Certificate delivered
to the Agent in accordance with the foregoing provisions of this clause
17 which is complete and regular on its face as regards its contents and
purportedly signed on behalf of the relevant Existing Bank and the
Substitute and none of the Agent, the Banks, the Arranger, the Security
Trustee or the Obligors shall have any liability or responsibility to any
party as a consequence of placing reliance on and acting in accordance
with
81
any such Substitution Certificate if it proves to be the case that the
same was not authentic or duly authorised.
17.5 Authorisation of Agent
----------------------
Each party to this Agreement irrevocably authorises the Agent to counter-
sign each Substitution Certificate on its behalf for the purposes of
clause 17.3 without any further consent of, or consultation with, any
such party except, in the case of the Parent, the consent required
pursuant to clause 17.3.
17.6 Construction of certain references
----------------------------------
If any Bank novates all or any part of its rights, benefits and
obligations as provided in clause 17.3 all relevant references in this
Agreement and the Security Trust Deed to such Bank shall thereafter be
construed as a reference to such Bank and/or its Substitute to the extent
of their respective interests.
17.7 Lending offices
---------------
Each Bank shall lend through its office at the address specified in part
A of schedule 1 or, as the case may be, in any relevant Substitution
Certificate or through any other office of such Bank selected from time
to time by such Bank through which such Bank wishes to lend for the
purposes of this Agreement, Provided that no such change of lending
office may take place if it would involve any Obligor having to pay any
increased cost with respect to its obligations under this Agreement. If
the office through which a Bank is lending is changed pursuant to this
clause 17.7, such Bank shall notify the Agent promptly of such change.
17.8 Disclosure of information
-------------------------
Subject to such person first executing a confidentiality undertaking in a
form acceptable to the Parent, acting reasonably, any Bank may disclose
to a prospective transferee or to any other person who may propose
entering into contractual relations with such Bank in relation to this
Agreement such information about the Restricted Group as such Bank shall
consider appropriate.
82
18 Arranger, Agent, Security Trustee and Reference Banks
-----------------------------------------------------
18.1 Appointment of Agent
--------------------
Each Bank irrevocably appoints the Agent as its agent for the purposes of
this Agreement and irrevocably authorises the Agent in such capacity:
(a) to execute all documents as may be approved by the Majority Banks
for execution by the Agent; and
(b) (whether or not by or through employees or agents) to take such
action on such Bank's behalf and to exercise such rights, remedies,
powers and discretions as are specifically delegated to the Agent
by this Agreement or, (as the case may be) the Security Documents,
together with such powers and discretions as are reasonably
incidental thereto (but subject to any restrictions or limitations
specified in this Agreement). None of the Agent, or the Arranger or
the Security Trustee shall, however, have any duties, obligations
or liabilities (whether fiduciary or otherwise) to the Banks beyond
those expressly stated in this Agreement and/or the Security
Documents.
Notwithstanding that the Agent and the Security Trustee may from time to
time be the same entity, the Agent and Security Trustee have entered into
this Agreement in their separate capacities as agent for the Banks under
and pursuant to this Agreement and as security trustee for the
Beneficiaries (as defined in the Security Trust Deed) to hold the
security created or to be created by the Security Documents on the terms
set out in the Security Trust Deed. However, where this Agreement
provides for the Agent to communicate with or provide instructions to the
Security Trustee, while the Agent and the Security Trustee are the same
entity, it will not be necessary for there to be any such formal
communications or instructions notwithstanding that this Agreement
provides in certain cases for the same to be in writing.
18.2 Agent's actions
---------------
Any action taken by the Agent under or in relation to this Agreement with
requisite authority, or on the basis of appropriate instructions,
received from the Majority Banks (or as otherwise duly authorised) shall
be binding on all the Banks.
18.3 Agent's duties
--------------
The Agent shall:
(a) promptly notify each Bank of the contents of each notice,
certificate or other document received by the Agent from the Parent
or any other Obligor under or pursuant to this Agreement;
(b) consult with the Banks as to whether and, if so, how a discretion
vested in the Agent is, either in any particular instance or
generally, to be exercised but so that this shall not prevent the
Agent in exceptional circumstances where time does not permit such
consultation and urgent action is required, from exercising its
rights and powers, or from instructing the Security Trustee to
exercise its rights and powers, to preserve the security
constituted by the Security Documents so long as the Agent promptly
notifies the Banks subsequently of such exercise; and
(c) (subject to the other provisions of this clause 18) take such
action or, as the case may be, refrain from taking such action with
respect to the exercise of any of its rights, remedies, powers and
discretions as agent or security agent, as the Majority Banks may
reasonably direct.
18.4 Agent's rights
--------------
83
The Agent may:
(a) in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly provided
for by this Agreement, act or, as the case may be, refrain from
acting in accordance with the instructions of the Majority Banks,
and shall be fully protected in so doing;
(b) unless and until it shall have received directions from the
Majority Banks, take such action, or refrain from taking such
action in respect of a Default of which the Agent has actual
knowledge as it shall deem advisable in the best interests of the
Banks (but shall not be obliged to do so);
(c) refrain from acting in accordance with any instructions of the
Majority Banks to institute, or to instruct the Security Trustee to
institute any legal proceedings arising out of or in connection
with this Agreement and/or the Security Documents until it and/or
the Security Trustee has been indemnified and/or secured to its
satisfaction against any and all costs, expenses or liabilities
(including legal fees) which it and/or the Security Trustee would
or might incur as a result;
(d) deem and treat (i) each Bank as the person entitled to the benefit
of the Contribution of such Bank for all purposes of this Agreement
and the Security Documents unless and until a Substitution
Certificate shall have been filed with the Agent and shall have
become effective, and (ii) the office set opposite the name of each
Bank in part A of schedule 1 or, as the case may be, in any
relevant Substitution Certificate as such Bank's lending office
unless and until a written notice of change of lending office shall
have been received by the Agent; and the Agent may act upon any
such notice unless and until the same is superseded by a further
such notice;
(e) rely as to matters of fact which might reasonably be expected to be
within the knowledge of any Obligor upon a certificate signed by
any director of the relevant Obligor on behalf of such Obligor; and
(f) refrain from doing anything which would, or might in its opinion,
be contrary to any law or regulation of any jurisdiction and may do
anything which is in its opinion necessary or desirable to comply
with any such law or regulation.
18.5 No liability of Arranger, Security Trustee and Agent
----------------------------------------------------
None of the Arranger, the Security Trustee, the Agent or any of their
respective employees and agents shall:
(a) be obliged to request any certificate or opinion under clause 11.1
or any provision of the Security Documents or to make any enquiry
as to the use of the proceeds of the Facility unless (in the case
of the Agent) so required in writing by any Bank, in which case the
Agent shall promptly make the appropriate request of the relevant
Obligor; or
(b) be obliged to make any enquiry as to any breach or default by any
Obligor in the performance or observance of any of the provisions
of this Agreement or as to the existence of a Default unless (in
the case of the Agent) the Agent has actual knowledge thereof or
has been notified in writing thereof by a Bank, in which case the
Agent shall promptly notify the Banks of the relevant event or
circumstance; or
(c) be obliged to enquire whether or not any representation or warranty
made by any Obligor pursuant to this Agreement or any of the
Security Documents is true; or
(d) be obliged to do anything (including, without limitation,
disclosing any document or information) which would, or might in
its opinion, be contrary to any law or regulation
84
or be a breach of any duty of confidentiality or otherwise be
actionable or render it liable to any person; or
(e) be obliged to account to any Bank for any sum or the profit element
of any sum received by it for its own account; or
(f) be obliged to institute any legal proceedings arising out of or in
connection with, or otherwise take steps to enforce, this Agreement
and/or the Security Documents other than on the instructions of the
Majority Banks; or
(g) be liable to any Bank for any action taken or omitted under or in
connection with this Agreement and/or the Security Documents or the
Loan unless caused by its gross negligence or wilful misconduct.
For the purposes of this clause 18 neither the Agent, nor the Security
Trustee shall be treated as having actual knowledge of any matter of
which the corporate finance or any other division outside the agency or
loan administration department of the person for the time being acting as
the Agent or the Security Trustee, as the case may be, may become aware
in the context of corporate finance, advisory or lending activities from
time to time undertaken by the Agent or the Security Trustee, as the case
may be, for the Parent or any of its Subsidiaries or Associated Companies
or any other person which may be a trade competitor of any of the
Obligors or may otherwise have commercial interests similar to those of
any of the Obligors.
18.6 Non-reliance on Arranger, Security Trustee or Agent
---------------------------------------------------
Each Bank acknowledges, by virtue of its execution of this Agreement or,
as the case may be, a Substitution Certificate, that it has not relied on
any statement, opinion, forecast or other representation made by the
Arranger, the Security Trustee or the Agent to induce it to enter into
this Agreement and that it has made and will continue to make, without
reliance on the Agent, the Security Trustee or the Arranger and based on
such documents as it considers appropriate, its own appraisal of the
creditworthiness of the Parent and its Subsidiaries and its own
independent investigation of the financial condition, prospects and
affairs of the Parent and its Subsidiaries in connection with the making
and continuation of the Loan under this Agreement. None of the Arranger,
the Security Trustee or the Agent shall have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank with any
credit or other information with respect to the Obligors whether coming
into its possession before the making of any Advance or at any time or
times thereafter, other than (in the case of the Agent) as provided in
clause 18.3(a).
18.7 No Responsibility on Arranger, Security Trustee or Agent for any
----------------------------------------------------------------
Obligor's performance
---------------------
None of the Arranger, the Security Trustee or the Agent shall have any
responsibility or liability to any Bank:
(a) on account of the failure of any Obligor to perform its obligations
under this Agreement or any Security Document; or
(b) for the financial condition of any Obligor; or
(c) for the completeness or accuracy of any statements, representations
or warranties in this Agreement, any Security Document or the
Information Memorandum or any document delivered under this
Agreement or any Security Document; or
(d) for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement or
any of the Security Documents or of any certificate, report or
other document executed or delivered under this Agreement or any of
the Security Documents; or
85
(e) otherwise in connection with the Facility or its negotiation or for
acting (or, as the case may be, refraining from acting) in
accordance with the instructions of the Majority Banks.
18.8 Reliance on documents and professional advice
---------------------------------------------
The Arranger and the Agent shall be entitled to rely on any
communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person and shall be
entitled to rely as to legal or other professional matters on opinions
and statements of any legal or other professional advisers selected or
approved by it (including those in the Agent's employment).
18.9 Other dealings
--------------
The Arranger and the Agent may, without any liability to account to the
Banks, accept deposits from, lend money to, and generally engage in any
kind of banking or other business with, and provide advisory or other
services to, the Parent or any of its Subsidiaries or associated
companies or any of the Banks as if it were not the Arranger or the
Agent, as the case may be.
18.10 Rights of Agent as Bank; no partnership
---------------------------------------
With respect to its own Commitment and Contribution (if any) the Agent
shall have the same rights and powers under this Agreement and the
Security Documents as any other Bank and may exercise the same as though
it were not performing the duties and functions delegated to it under
this Agreement and/or the Security Documents and the term "Banks" shall,
unless the context clearly otherwise indicates, include the Agent in its
individual capacity as a Bank. This Agreement shall not and shall not be
construed so as to constitute a partnership between the parties or any of
them.
18.11 Amendments; waivers
-------------------
(a) Subject to clause 18.11(b), the Agent may, with the consent of the
Majority Banks (or if and to the extent expressly authorised by the
other provisions of this Agreement) and, if so instructed by the
Majority Banks, shall (i) agree amendments or modifications to this
Agreement with the Obligors and/or (ii) vary or waive breaches of,
or defaults under, or otherwise excuse performance of, any
provision of this Agreement by any Obligor. Any such action so
authorised and effected by the Agent shall be documented in such
manner as the Agent shall (with the approval of the Majority Banks)
determine, shall be promptly notified to the Banks by the Agent and
(without prejudice to the generality of clause 18.2) shall be
binding on all the Banks.
(b) Except with the prior written consent of all the Banks, the Agent
shall not have authority on behalf of the Banks (A) to agree with
any Obligor any amendment or modification to this Agreement or to
grant waivers in respect of breaches or defaults or to vary or
excuse performance of or under this Agreement by any Obligor, if
the effect of such amendment, modification, waiver, variation or
excuse would be to (i) reduce the Margin, (ii) postpone the due
date or reduce the amount of any reduction in availability, any
payment of principal, interest, commitment commission or other
amount payable by any Obligor under this Agreement, (iii) change
the currency in which any amount is payable by any Obligor under
this Agreement, (iv) increase any Bank's Commitment, (v) extend the
Availability Period, (vi) change the definition of "Majority Banks"
in clause 1.2, (vii) change any provision of this Agreement which
expressly or impliedly requires the approval or consent of all the
Banks such that the relevant approval or consent may be given
otherwise than with the sanction of all the Banks, (viii) change
clause 4.1, (ix) change the order of distribution under clause
8.10, (x) change clause 16.2, (xi) change this clause 18.11 or (B)
release any member of the Restricted Group or any of their
respective assets from the security created by any of the Security
Documents unless such release is to permit the disposal or other
dealing
86
with such asset in accordance with the terms of this Agreement and
any relevant Security Document or (C) release any Guarantor from
its obligations under any Guarantee to which it is a party.
(c) For the purposes of this clause 18.11 it is expressly agreed and
acknowledged that the execution of a Deed of Borrower Accession or
a Deed of Guarantor Accession or any deed or instrument pursuant to
a further assurance provision in the Security Documents shall not
constitute an amendment or modification to, or variation of, this
Agreement or any of the Security Documents.
18.12 Reimbursement and indemnity by Banks
------------------------------------
Each Bank shall reimburse the Arranger and the Agent (rateably in
accordance with such Bank's Commitment or Contribution), to the extent
that the Arranger or the Agent is not reimbursed by the Obligors, for the
costs, charges and expenses incurred by the Arranger and the Agent in
connection with the negotiation, preparation and execution of this
Agreement and the Security Documents and/or in contemplation of, or
otherwise in connection with, the enforcement or attempted enforcement
of, or the preservation or attempted preservation of any rights under, or
in carrying out its duties under, this Agreement and/or any of the
Security Documents including (in each case) the fees and expenses of
legal or other professional advisers. Each Bank shall on demand indemnify
the Agent (rateably in accordance with its Commitment or Contribution)
against all liabilities, damages, costs and claims whatsoever incurred by
the Agent in connection with this Agreement and the Security Documents or
the performance of its duties under this Agreement and the Security
Documents or any action taken or omitted by the Agent under this
Agreement and/or any of the Security Documents, unless such liabilities,
damages, costs or claims arise from the Agent's own gross negligence or
wilful misconduct.
18.13 Retirement of Agent
-------------------
(a) The Agent may retire from its appointment as Agent under this
Agreement having given to the Parent and each of the Banks not less
than 30 days' notice of its intention to do so, provided that no
such retirement shall take effect unless there has been appointed
by the Banks as a successor agent:
(i) a Bank nominated by the Majority Banks with the consent of
the Parent (not to be unreasonably withheld or delayed) or,
failing such a nomination,
(ii) any reputable and experienced bank or financial institution
with offices in London nominated by the Agent with the
consent of the Parent (not to be unreasonably withheld or
delayed).
Any corporation into which the Agent may be merged or converted or
any corporation with which the Agent may be consolidated or any
corporation resulting from any merger, conversion, amalgamation,
consolidation or other reorganisation to which the Agent shall be a
party shall, to the extent permitted by applicable law, be the
successor Agent under this Agreement without the execution or
filing of any document or any further act on the part of any of the
parties to this Agreement, save that notice of any such merger,
conversion, amalgamation, consolidation or other reorganisation
shall forthwith be given to the Parent and the Banks.
(b) Upon any such successor as aforesaid being appointed, the retiring
Agent shall be discharged from any further obligation under this
Agreement (but shall continue to have the benefit of this clause 18
in respect of any action it has taken or refrained from taking
prior to such discharge) and its successor and each of the other
parties to this Agreement shall have the same rights and
obligations among themselves as they would have had if such
successor had been a party to this Agreement in place of the
retiring Agent. The retiring Agent shall (at the expense of the
Parent) provide its successor
87
with copies of such of its records as its successor reasonably
requires to carry out its functions under this Agreement.
18.14 Change of Reference Banks
-------------------------
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (b) the Commitment (if any) of any Reference Bank is reduced to
zero in accordance with clause 6.3 or 15.1, (c) a Reference Bank novates
the whole of its rights and obligations (if any) as a Bank under this
Agreement or (d) any Reference Bank ceases to provide quotations to the
Agent for the purposes of determining LIBOR, the Agent may, acting on the
instructions of the Majority Banks, terminate the appointment of such
Reference Bank and after consultation with the Parent appoint another
Bank to replace such Reference Bank.
18.15 Prompt distribution of proceeds
-------------------------------
Moneys received by the Security Trustee (whether from a Receiver or
otherwise) pursuant to the exercise of (or otherwise by virtue of the
existence of) any rights and powers under or pursuant to any of the
Security Documents shall be paid to the Agent for distribution in
accordance with the terms of the Security Trust Deed shall be distributed
by the Agent as soon as is practicable after the relevant moneys are
received by, or otherwise become available to, the Agent save that
(without prejudice to any other provision contained in any of the
Security Documents) the Agent (acting on the instructions of the Majority
Banks) may credit any moneys received by it to a suspense account for so
long and in such manner as the Agent may from time to time determine with
a view to preserving the rights of the Agent and/or the Arranger and/or
the Banks or any of them to prove for the whole of their respective
claims against any Obligor or any other person liable.
88
19 Notices and other matters
-------------------------
19.1 Notices
-------
Every notice, request, demand or other communication under this Agreement
shall:
(a) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(b) be deemed to have been received, subject as otherwise provided in
this Agreement, in the case of a letter when delivered and, in the
case of a telefax, when a complete and legible copy is received by
the addressee (unless the date of despatch is not a business day in
the country of the addressee or the time of despatch of any telefax
is after the close of business in the country of the addressee in
which case it shall be deemed to have been received at the opening
of business on the next such business day); and
(c) be sent:
(i) to each Obligor at:
▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Telefax: (▇▇) ▇▇▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
and,
in addition, the case of Telekabel Wien only, to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.▇.▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Telefax: 431 1701 211
Attention: Chief Financial Officer
(ii) to the Agent, the Arranger and the Security Trustee at:
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Loans Agency
and:
Telefax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Director, Communications Finance
(iii) to each Bank
at its address or telefax number
specified in part A of schedule 1
or in any relevant Substitution Certificate
or to such other address or telefax number as is notified by the
relevant party to the other parties to this Agreement.
19.2 Notices through the Agent
-------------------------
89
Every notice, request, demand or other communication under this Agreement
to be given by any Obligor to any other party shall be given to the Agent
for onward transmission as appropriate and to be given to the Obligors
(or any of them) shall (except as otherwise provided in this Agreement)
be given by the Agent.
19.3 No implied waivers, remedies cumulative
---------------------------------------
No failure or delay on the part of the Agent, the Arranger, the Banks or
any of them to exercise any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial
exercise by the Agent, the Arranger, the Banks or any of them of any
power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy. The remedies provided
in this Agreement are cumulative and are not exclusive of any remedies
provided by law.
19.4 English translations
--------------------
All certificates, instruments and other documents to be delivered under
or supplied in connection with this Agreement shall be in the English
language or shall be accompanied by a certified English translation upon
which the Agent, the Arranger and the Banks shall be entitled to rely.
19.5 Counterparts
------------
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
19.6 No breach of Austrian Agreements
--------------------------------
The Banks (i) confirm that they have received copies of the Austrian
Agreements in their form at the date of the first supplemental agreement
to this Agreement, and (ii) further confirm, and authorise the Agent to
confirm, that if they, the Agent or the Security Trustee become majority
shareholders in CNA following enforcement of the CNA Share Security they
will not, and they will not instruct the Agent or the Security Trustee
to, require CNA to take any advice which would to their knowledge, after
taking advice, constitute a breach of the Austrian Agreements in their
form at the date of the first supplemental agreements to this Agreement
if such action would also constitute a breach of the Austrian Agreements
in their form at the date on which such action is taken. These
confirmations, however, do not constitute (a) a waiver of any rights the
Banks, the Agent or the Security Trustee may have under the Austrian
Agreements as such shareholders or (b) a guarantee of CNA's obligations
under the Austrian Agreements. The Banks do not have authority to bind
any third party who becomes a shareholder in CNA, whether following
enforcement of the CNA Share Security or otherwise, but the Banks agree
that if they, the Agent or the Security Trustee dispose of the shares in
CNA, upon enforcement of the CNA Share Security, or as shareholders in
CNA following enforcement of the CNA Share Security, otherwise than by
means of a public offer, public sale or public auction they will make
such disposal on terms that the acquirer gives a confirmation in the same
terms as this clause 19.6.
90
20 Governing law and jurisdiction
------------------------------
20.1 Law
---
This Agreement shall be governed by English law.
20.2 Submission to jurisdiction
The parties to this Agreement agree for the benefit of the Agent, the
Arranger, the Security Trustee and the Banks that:
(a) if any party has any claim against any other arising out of or in
connection with this Agreement such claim shall (subject to clause
20.2(c) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over any
such claim against the Agent, the Arranger, the Security Trustee or
any Bank shall be an exclusive jurisdiction and no courts outside
England shall have jurisdiction to hear or determine any such
claim; and
(c) nothing in this clause 20.2 shall limit the right of the Agent, the
Security Trustee, the Arranger or the Banks to refer any such claim
against any Obligor to any other court of competent jurisdiction
outside England, to the jurisdiction of which each Obligor hereby
irrevocably agrees to submit, nor shall the taking of proceedings
by the Agent, the Security Trustee, the Arranger or any Bank before
the courts in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction whether concurrently or not.
20.3 Agent for service of process
----------------------------
Each Obligor irrevocably designates, appoints and empowers TG Registrars
Limited at present of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to receive
for it and on its behalf service of process issued out of the High Court
of Justice in England in relation to any claim arising out of or in
connection with this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
91
Schedule 1
Part A - The Banks and their Commitments
----------------------------------------
Name Address and telefax number Commitment
NLG
---- -------------------------- ----------
The Toronto- Triton Court 254,000,000
Dominion Bank ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Loan Administration
Barclays Bank PLC 5th Floor 169,200,000
St. Swithins House
▇▇/▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
CLAD UK
CIBC Wood Gundy Plc Cottons Centre 169,200,000
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Supervisor Banking
Services
HSBC Investment Thames Exchange 169,200,000
Bank plc ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile: 0171 336 9302/9293
Attention: Specialised Financing
Support
NationsBank N.A. New Broad Street House 169,200,000
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Loan Administrator
The Royal Bank of 4th Floor 169,200,000
92
Name Address and telefax number Commitment
NLG
---- -------------------------- ----------
Scotland plc ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Loans Administration
93
Part B - Restricted Subsidiaries and Original Guarantors
--------------------------------------------------------
=========================================================================================================
Company Country of Incorporation Address
------- ------------------------ -------
=========================================================================================================
Cable Networks Austria Holding b.v. The Netherlands ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
1070 BT
Amsterdam
=========================================================================================================
Telekabel Wien G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
=========================================================================================================
Telekabel Klagenfurt G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
=========================================================================================================
Telekabel Graz G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇
=========================================================================================================
Telekabel-Fernsehnetz Wiener Neustadt Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇.▇.▇.▇. Wiener Neustadt, Austria
=========================================================================================================
Telekabel-Fernsehnetz Region Baden Austria ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇- G.m.b.H. Traiskirchen, Austria
=========================================================================================================
Radio Public S.A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
=========================================================================================================
▇▇▇▇▇ ▇▇▇▇▇-TV A/S ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
(until Norwegian Merger)
=========================================================================================================
Norkabelgruppen A/S Norway Sorkendalsveien 6, P.O. Box
(until Norwegian Merger) 5425 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
=========================================================================================================
Kanal 2 A/S (until Norwegian Merger) Norway ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇.▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
=========================================================================================================
Oslo Kabelanlegg A/S Norway Sorkendalsveien 6, P.O. Box
(until Norwegian Merger) 5425 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
=========================================================================================================
Norkabel A/S Norway Sorkendalsveien 6, P.O. Box
(until Norwegian Merger) 5425 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
=========================================================================================================
New ▇▇▇▇▇ Norway (to be determined)
(after Norwegian Merger)
=========================================================================================================
94
Part C - Borrowers
------------------
=========================================================================================================
Company Country of Incorporation Address
------- ------------------------ -------
=========================================================================================================
United and Philips Communications B.V. The Netherlands ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
1076 EE Amsterdam
=========================================================================================================
Telekabel Wien G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇
=========================================================================================================
Norkabelgruppen A/S Norway Sorkedalsveien 6, P.O. Box
(before Norwegian Merger) 5425 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇
=========================================================================================================
New ▇▇▇▇▇ Norway (to be determined)
(after Norwegian Merger)
=========================================================================================================
95
Schedule 2
----------
Form of Drawdown Notice
-----------------------
To: The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
Attention: Manager, Loans Agency '19'
NLG 1,100,000,000 Multi-currency Revolving Credit
-------------------------------------------------
Facility Agreement dated ' 19' (as from time to time amended,
-------------------------------------------------------------
varied, extended, restated, refinanced or replaced, the "Agreement")
--------------------------------------------------------------------
We refer to the Agreement and hereby give you notice that we wish to
draw down an Advance of ' on '19' for a Term of ' months [we wish to issue a
Telekabel Note in the nominal amount of . on . 19. for a Term of . months]. The
funds should be credited to [name and number of account] with [details of bank
in [principal financial centre for relevant Optional Currency]].
We confirm that:
(i) so far as we are aware, no event or circumstance has occurred and
is continuing which constitutes a Default; [and]
(ii) the representations and warranties contained in clause 10.1 of
the Agreement to be repeated in accordance with clause 10.3 of
the Agreement:
(A) [if the aggregate Guilder Amount of Advances
outstanding after such drawing would exceed the
aggregate Guilder Amount of Advances outstanding
prior to that drawing (after taking into account any
repayment made on the date of such drawing)] are true
and correct; or
(B) [in all other circumstances] are not incorrect or
misleading in any way which would be reasonably
likely to have a material adverse effect on the
ability of any Borrower to perform its obligations
under this Agreement or on the financial position of
the Parent and its Subsidiaries taken as a whole,
as at the date of this notice as if made with respect to the
facts and circumstances existing at the date of this notice;
[and]
[(iii) the amount of the Advance, when aggregated with other
Advances outstanding to the Norwegian Borrowers, is
less than the Norwegian Loan Amount]*.
[We enclose a Telekabel Note in respect of the drawdown requested by
this notice which has been duly completed save for the provision of
such Telekabel Note dealing with the calculation of interest. We hereby
authorize you to complete on our behalf the provisions of such
Telekabel Note dealing with the calculation of interest.]**
We confirm that Total Annualized Net Operating Cash Flow in the most
recently delivered Monthly Management Accounts was [ ].
--------------------------------------------------------------------------------
* Norwegian Borrowers only
** Austrian Borrowers only
96
[We confirm that Cable TV Annualized Net Operating Cash Flow in the
most recently delivered Monthly Management Accounts was [ ]].
We confirm that the ratio of Total Debt (including for these purposes,
the amount of the Advance the subject of this notice) to Total
Annualized Net Operating Cash Flow as calculated from the most recently
delivered Monthly Management Accounts delivered to the Agent under the
Agreement was [ ].
[We confirm that the ratio of Total Debt (including for these purposes,
the amount of the Advance the subject of this notice) to Cable TV
Annualized Net Operating Cash Flow as calculated from the most recently
delivered Monthly Management Accounts delivered to the Agent under the
Agreement was [ ]].
Words and expressions defined in the Agreement shall have the same
meanings where used in this notice.
For and on behalf of
[Name of relevant Borrower] [and]
United and Philips Communications B.V.
.....................
97
Schedule 3
----------
Part A - documents and evidence required
----------------------------------------
as conditions precedent to first Advance
----------------------------------------
(a) A copy, certified as a true, complete and up-to-date copy by an
Authorized Officer of the Parent, of the constitutive documents of the
Parent and each member of the Restricted Group amended as agreed
between the Parent and the Agent.
(b) A copy, certified as a true copy by an Authorized Officer of the
Parent, of resolutions of the Supervisory Board of Directors of the
Parent evidencing approval of this Agreement, the Security Documents to
which it is a party and authorizing its appropriate officers to execute
and deliver this Agreement, such Security Documents and to give all
notices and take all other action required by the Parent under this
Agreement and each such Security Document.
(c) A copy, certified as a true copy by an Authorized Officer of the Parent
of resolutions of the Board of Directors of each of the members of the
Restricted Group (except for the Austrian members of the Restricted
Group) evidencing approval of this Agreement and the Security Documents
to which they are a party and authorizing their respective appropriate
officers to execute and deliver such Security Documents and to give all
notices and take all other action required by such member of the
Restricted Group thereunder.
(d) Specimen signatures, authenticated by an Authorized Officer of the
Parent, of the persons authorized in the resolutions referred to in
paragraphs (b) and (c) above, together with originals of the powers of
attorney granted by the Parent and any member of the Restricted Group
in connection with the Finance Documents.
(e) A copy, certified as a true copy by an Authorized Officer of the
Parent, of all consents, authorizations, licenses and approvals
required by the members of the Restricted Group to authorize, or
required by the members of the Restricted Group in connection with, the
execution, delivery, validity, enforceability and admissibility in
evidence of this Agreement and the Security Documents and the
performance by the members of the Restricted Group of their respective
obligations under this Agreement and the Security Documents.
(f) An opinion of ▇▇▇▇▇▇ ▇▇▇▇, dated not more than five Banking Days prior
to the first Drawdown Date, in a form acceptable to the Agent.
(g) A copy, certified as a true copy by an Authorized Officer of the Parent
of a letter from each Obligor's agent for receipt of service of process
referred to this Agreement and in the Security Trust Deed accepting its
appointment.
(h) The Share Securities and the Security Trust Deed duly executed by the
Parent and/or by the other members of the Restricted Group party
thereto together with all documents, deeds, notices and certificates
required to be delivered pursuant to the terms thereof.
(i) The Disclosure Letter.
(j) The audited financial statements for the financial year ended on 31
December 1996 referred to in clause 10.1(g)(i) and the monthly
management accounts and quarterly management accounts referred to in
clause 10.1(g)(ii).
(k) A copy of the Management Base Case.
(l) A copy of the accountants letter relating to the Management Base Case.
(m) Copies, certified by the Authorized Officer of the Parent to be true,
complete and up to date copies of:
(i) the Licenses;
98
(ii) the Principal Agreements; and
(iii) the Necessary Authorizations.
Documents and evidence required as conditions precedent in Austria
------------------------------------------------------------------
1 List of receivables pledged by the Austrian Security Document to be
provided on or before 12 December, 1997 under clause 3.6(b).
2 Written confirmation from the secretary of Telekabel Wien that the
pledge pursuant to the Austrian Security Document has been noted in the
computerized company books of Telekabel Wien to be provided on or
before 12 December, 1997 under clause 3.6(b).
3 Originals of the notice and acknowledgement of the pledge of bank
account duly signed by Telekabel Wien and acknowledged by the relevant
bank, as set out in the schedule to the Austrian Security Document to
be provided on or before 12 December, 1997 under clause 3.6(b).
4 A resolution of CNA, as 95 per cent. shareholder in each other
Telekabel Entity (other than Telekabel Wien), inter alia, approving the
entry into by such Telekabel Entity of the Guarantee, in a form
acceptable to the Agent.
5 An opinion of Ortner, Poch, Foramitti Rechtsanwalte, special legal
advisers to the Banks in Austria, dated not more than five Banking Days
prior to the first Drawdown Date, in a form acceptable to the Agent.
Documents and evidence required as conditions precedent in Belgium
------------------------------------------------------------------
1 Entry in the share register of Radio Public of the pledge of shares in
Radio Public given by the Parent, signed by the Parent.
2 Regulatory approvals of Radio Public for Etterbeek, Schaarbeek,
Koekelberg, ▇▇▇▇▇, Ganshoren, Berghem-Sainte-Agathe, Forest, Leuven,
Heverlee and Kessel-Lo and two letters of the Belgian Institute for
Post and Telecommunication authorizing Radio Public to operate an
Internet Service and a telecommunications service from 7th May 1997.
3 An opinion of ▇▇▇▇▇▇▇, Van Ommeslaghe & Faures, special legal advisers
to the Banks in Belgium, dated not more than five Banking Days prior to
the first Drawdown Date, in a form acceptable to the Agent.
Documents and evidence required as conditions precedent in the Netherlands
--------------------------------------------------------------------------
1 An extract from the trade register of the Chamber of Commerce of the
Parent and each member of the Restricted Group incorporated in The
Netherlands.
2 A copy, certified as a true, complete and up-to-date copy by an
Authorized Officer of the Parent, of the shareholders' register of (i)
the Parent and (ii) each member of the Restricted Group incorporated in
The Netherlands.
3 Resolution of the Board of Supervisory directors of the Parent
evidencing approval of this Agreement and the Security Documents to
which the Parent is a party and authorizing the appropriate officers of
the Parent to execute and deliver the Agreement and the Security
Documents and to give all notices and other action required thereunder.
99
4 A confirmation satisfactory to the Agent from ABN Amro Bank N.V. of all
amounts outstanding under the Existing UPC Facility to be repaid for
value 10th October 1997 and confirming that all and any security
granted in connection with such facility will be released and that such
facility shall be irrevocably cancelled on receipt of such amount.
5 An opinion of (i) Trenite Van Doorne and (ii) Horlings, Bronwer &
Horlings, special legal advisers to the Banks in the Netherlands, dated
not more than five Banking Days prior to the first Drawdown Date, in a
form acceptable to the Agent.
Documents and evidence required as conditions precedent in Norway
-----------------------------------------------------------------
1 A shareholders' resolution of the shareholders of ▇▇▇▇▇ evidencing
approval of the shareholders of ▇▇▇▇▇ to the terms of this Agreement
and the obligations of ▇▇▇▇▇ thereunder.
2 A letter from the Norwegian Bankruptcy Register confirming that as of
the first Drawdown Date, none of the members of the Restricted Group
incorporated in Norway have been reported from the local probate courts
to the said register bankrupt.
3 Copies, certified as true copies by an Authorized Officer of the
Parent, of shareholders' registers ("aksjonaerprotokoll") of ▇▇▇▇▇.
4 An opinion of Wiersholm, Mellbye & Bech, special legal advisers to the
Banks in Norway, dated not more than five Banking Days prior to the
first Drawdown Date, in a form acceptable to the Agent.
5 Originals of the notice of assignment of dividends and acknowledgement
of notice duly signed by the Parent and acknowledged by ▇▇▇▇▇, as set
out in exhibits 1 and 2 to the Norwegian Share Security.
100
Schedule 3
----------
Part B - Documents and evidence required
----------------------------------------
as conditions precedent to Philips Advance
------------------------------------------
(a) A copy certified to be a true copy by an Authorized Officer of the
Parent of the Securities Purchase and Conversion Agreement and the
Bridge Facility Agreement.
(b) Evidence satisfactory to the Agent that:
(i) all conditions to the Securities Purchase and Conversion
Agreement have been satisfied other than those dependant upon
the drawdown of the Philips Advance and, if the Parent is
required to issue any Initial Preference Shares (as defined in
the Securities Purchase and Conversion Agreement) pursuant to
the terms of the Securities Purchase and Conversion Agreement
such shares are consistent with the outline terms and
conditions contained in the Securities Purchase and Conversion
Agreement;
(ii) all conditions precedent set out in the Bridge Facility
Agreement have been satisfied and a drawdown notice in respect
of the full amount of the Bridge Facility has been given in
accordance with the terms thereof;
(iii) the Parent has sufficient funds at its disposal, in the
opinion of the Agent, which when aggregated with the Philips
Advance will enable the Parent to consummate the Philips
Transaction in accordance with the terms of the Securities
Purchase and Conversion Agreement.
(c) Such other documents and evidence as the Agent shall reasonably require.
101
Schedule 3
----------
Part C - Documents and evidence required as conditions
------------------------------------------------------
precedent to the first Advance made to the Norwegian Borrowers
--------------------------------------------------------------
if at that time the Norwegian Merger has occurred
-------------------------------------------------
(a) An opinion of Wiersholm, Mellbye & Bech, special legal advisers to the
Banks in Norway dated not more than five Banking Days prior to the date
of the first Advance to be made to the Norwegian Borrowers, in a form
acceptable to the Agent.
(b) Each of the Norwegian Security Documents listed in part B of schedule
13 duly executed by the members of the Restricted Group party thereto
together with all documents, deeds, notices and certificates required
to be delivered pursuant to the terms thereof.
(c) A confirmation from ING Bank N.V. specifying the total of all amounts
outstanding under the Existing Norkabel Facility as at the proposed
date of the first Advance to be made to the Norwegian Borrowers and
that such of the Norwegian Security Documents that are to be assigned
or transferred to the Security Trustee by ING Bank N.V. have been
deposited with the law firm Thommessen, Krefting, Greve, ▇▇▇▇ in Oslo,
who have been irrevocably instructed to release the said documents to
the law firm Wiersholm, Mellbye & Bech in Oslo on behalf of the
Security Trustee upon confirmation from ING Bank N.V. that the said
amounts have been received and that upon the said amounts being
received all other security granted to ING Bank N.V. in connection with
the Norkabel Facility shall be released, cancelled or discharged (as
the case may be).
(d) each of the documents and evidence specified in part B of schedule 11.
(e) A shareholders resolution of the shareholders of ▇▇▇▇▇ evidencing
approval of the shareholders of ▇▇▇▇▇ to the terms of the Norwegian
Security Documents and the obligations of ▇▇▇▇▇ under those documents.
(f) A copy, certified as a true copy by an Authorized Officer of the Parent
of the Shareholders' registers ("aksjonaerprotokoll") of ▇▇▇▇▇.
(g) A letter from the Norwegian Bankruptcy Register confirming that as of
the date of the first drawdown to be made to the Norwegian Borrowers,
that ▇▇▇▇▇ has not been reported from the local probate court to the
said local register bankrupt.
(h) Consent in writing to record the mortgages over leased real estates
with appurtenances forming part of the Norwegian Security Documents,
from the landlords who have not given such consent earlier on.
(i) Evidence of the discharge of all Encumbrances granted by ▇▇▇▇▇ prior to
the date of the Norwegian Merger.
(j) An assignment given by the Parent of all of its rights title benefit
and interest in and under the ▇▇▇▇▇ Loan Agreement, in form and
substance satisfactory to the Majority Banks together with such Board
Resolutions, legal opinions and such other documents and evidence to
show that the obligations of the Parent thereunder are legal, valid and
binding, as the Agent, acting on the instructions of the Majority
Banks, may reasonable require.
(k) A copy, certified as a true, complete and up-to-date copy by an
Authorized Officer of each relevant company, of the constitutive
documents as at the date of foundation of such company of each member
of the Restricted Group incorporated in Norway.
102
Schedule 3
----------
Part D - Documents and evidence required as conditions
------------------------------------------------------
precedent to the first Advance made to the Norwegian Borrowers
--------------------------------------------------------------
if at that time the Norwegian Merger has not occurred
-----------------------------------------------------
(a) An opinion of Wiersholm, Mellbye & Bech, special legal advisers to the
Banks in Norway dated not more than five Banking Days prior to the date
of the first Advance to be made to the Norwegian Borrowers, in a form
acceptable to the Agent.
(b) Each of the Norwegian Security Documents listed in part A of schedule
13 duly executed by the members of the Restricted Group party thereto
together with all documents, deeds, notices and certificates required
to be delivered pursuant to the terms thereof.
(c) A confirmation from ING Bank N.V. specifying the total of all amounts
outstanding under the Existing Norkabel Facility as at the proposed
date of the first Advance to be made to the Norwegian Borrowers and
that such of the Norwegian Security Documents that are to be assigned
or transferred to the Security Trustee by ING Bank N.V. have been
deposited with the law firm Thommessen, Krefting, Greve, ▇▇▇▇ in Oslo,
who have been irrevocably instructed to release the said documents to
the law firm Wiersholm, Mellbye & Bech in Oslo on behalf of the
Security Trustee upon confirmation from ING Bank N.V. that the said
amounts have been received and that upon the said amounts being
received all other security granted to ING Bank N.V. in connection with
the Norkabel Facility shall be released, cancelled or discharged (as
the case may be).
(d) A shareholders resolution of the shareholders of ▇▇▇▇▇ evidencing
approval of the shareholders of ▇▇▇▇▇ to the terms of the Norwegian
Security Documents and the obligations of ▇▇▇▇▇ under those documents.
(e) A copy, certified as a true copy by an Authorized Officer of the Parent
of the Shareholders' registers ("aksjonaerprotokoll") of each member of
the Restricted Group incorporated in Norway.
(f) A letter from the Norwegian Bankruptcy Register confirming that as of
the date of the first drawdown to be made to the Norwegian Borrowers,
no member of the Restricted Group incorporated in Norway has been
reported from the local probate court to the said local register
bankrupt.
(g) Consent in writing to record the mortgages over leased real estates
with appurtenances forming part of the Norwegian Security Documents,
from the landlords who have not given such consent earlier on.
(h) Evidence of the discharge of all Encumbrances granted by ▇▇▇▇▇ prior to
the date of the first Advance to be made to the Norwegian Borrowers.
(i) An assignment given by the Parent of all of its rights title benefit
and interest in and under the ▇▇▇▇▇ Loan Agreement, in form and
substance satisfactory to the Majority Banks together with such Board
Resolutions, legal opinions and such other documents and evidence to
show that the obligations of the Parent thereunder are legal, valid and
binding, as the Agent, acting on the instructions of the Majority
Banks, may reasonable require.
(j) A copy, certified as a true, complete and up-to-date copy by an
Authorized Officer of each relevant company, of the constitutive
documents as at the date of the foundation of such company of each
member of the Restricted Group incorporated in Norway.
103
Schedule 4
----------
Calculation of Additional Cost
------------------------------
1 The Additional Cost for any period shall (subject to paragraph 5 below)
be calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z)
-------------------- per cent per annum
100 - (B+S)
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 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, which percentage
shall (in the absence of evidence that any other figure is
appropriate) be conclusively presumed to be 5 per cent;
X is the 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.
2 For the purposes of this schedule 4:
(a) "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
(b) "relevant period" in relation to each period for which
Additional Cost falls to be calculated means:
(i) if it is 3 months or less, that period; or
(ii) if it is more than 3 months, 3 months.
3 In the application of the formula, B, Y, L, X, S and Z are included in
the formula as figures and not as percentages, e.g. if B = 0.5 per cent
and Y = 15 per cent BY is calculated as 0.5 x 15.
4 The formula shall be applied on the first day of each relevant period.
Each amount shall be rounded up to the nearest four decimal places.
5 If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation
with the Banks) shall notify the Parent of the manner
104
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.
105
Schedule 5
----------
Form of Substitution Certificate
--------------------------------
Banks are advised not to employ Substitution Certificates without first ensuring
--------------------------------------------------------------------------------
that the transaction complies with all applicable laws and regulations,
-----------------------------------------------------------------------
including the Financial Services ▇▇▇ ▇▇▇▇ and regulations made thereunder.
--------------------------------------------------------------------------
To: The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
Attention: Manager, Loans Agency ' 19'
Substitution Certificate
------------------------
This Substitution Certificate relates to an Agreement (as from time to
time amended, varied, extended, restated, refinanced or replaced, the
"Agreement") dated ' 1997 between United and Philips Communications b.v. as
Parent and a Borrower (1), the entities listed in part C of schedule 1 thereto
as Borrowers (2), the entities listed in part B of schedule 1 thereto as
Guarantors (3), The Toronto-Dominion Bank as Arranger (4), the banks and
financial institutions whose respective names and addresses are set out in part
A of schedule 1 thereto as Banks (5), The Toronto-Dominion Bank as Agent (6) and
The Toronto-Dominion Bank as Security Trustee (7). Terms defined in the
Agreement shall have the same meaning in this Substitution Certificate.
1 [Name of Existing Bank] (the "Existing Bank") (a) confirms the accuracy
of the summary of its Commitment and Contribution set out in the
schedule to this Substitution Certificate; and (b) requests [Substitute
Bank] (the "Substitute") to accept by way of novation the portion of
its Commitment and Contribution specified in the schedule to this
Substitution Certificate by counter-signing and delivering this
Substitution Certificate to the Agent at its address for the service of
notices specified in the Agreement.
2 The Substitute requests the Agent (on behalf of itself, the Arranger,
the Security Trustee, the Interest Rate Beneficiaries (as defined in
the Security Trust Deed), the Obligors and the Banks) to accept this
Substitution Certificate as being delivered to the Agent pursuant to
and for the purposes of clause Error! Reference source not found. of
the Agreement, so as to take effect in accordance with its terms on
[date of transfer], [being not earlier than 5 Banking Days after date
of delivery of the Certificate to the Agent] (the "Effective Date").
3 The Agent (on behalf of itself and the other parties to the Agreement)
confirms the novation effected by this Substitution Certificate
pursuant to and for the purposes of clause 17.3 of the Agreement.
4 The Substitute confirms:
(a) that it has received a copy of the Agreement, the Security
Trust Deed and all other Security Documents and other
documentation and information required by it in connection
with the transactions contemplated by this Substitution
Certificate;
(b) that it has made its own assessment of the execution,
effectiveness, adequacy, genuineness, validity, enforceability
and admissibility in evidence of the Agreement, the Security
Documents and this Substitution Certificate and has not relied
and will not rely on the Existing Bank or any statements made
by the Existing Bank in that respect;
(c) that it has made and will continue to make its own appraisal
of the creditworthiness of the Parent and its Subsidiaries and
its own independent investigation of the financial
106
condition, prospects and affairs of the Parent and its
Subsidiaries and has not relied and will not rely on the
Existing Bank, the Agent, the Arranger, the Security Trustee
or any other Bank or any statement, opinion, forecast or other
representation made by the Existing Bank, the Agent, the
Arranger, the Security Trustee or any other Bank in that
respect;
(d) accordingly, none of the Existing Bank, the Agent, the
Arranger, the Security Trustee or any other Bank shall have no
liability or responsibility to the Substitute in respect of
any of the foregoing matters[; and]
(e) it is a Qualifying Bank.
5 Execution of this Substitution Certificate by the Substitute
constitutes its representation to the Existing Bank and all other
parties to the Agreement and the Security Trust Deed that it has power
to become party to the Agreement and the Security Trust Deed as a Bank
on the terms herein and therein set out and has taken all necessary
steps to authorize execution and delivery of this Substitution
Certificate.
6 The Substitute acknowledges that the Existing Bank has no obligation to
repurchase or reacquire any of the rights and obligations novated by
virtue of this Substitution Certificate or to support, indemnify or
compensate the Substitute for any losses suffered by the Substitute as
a consequence of the novation effected by virtue of this Substitution
Certificate.
7 The Substitute hereby undertakes to the Existing Bank, the Obligors,
the Arranger, the Security Trustee, the Interest Rate Beneficiaries and
the Agent that it will perform in accordance with their terms all those
obligations which by the respective terms of the Agreement and the
Security Trust Deed will be assumed by it after acceptance of this
Substitution Certificate by the Agent.
8 This Substitution Certificate is governed by English law.
Note: This Substitution Certificate is not a security, bond, note, debenture,
---- investment or similar instrument.
AS WITNESS the hands of the authorized signatories of the parties hereto on the
date appearing below.
The Schedule
------------
Amount Advance Maturity Date Portion novated
-------------- ------------- ---------------
Guilder Portion novated
------- ---------------
Amount of NLG
--------- ---
Commitment
----------
NLG
---
Administrative Details of Substitute
------------------------------------
Lending office:
Account for payments:
Telephone:
107
Telefax:
Attention:
[Existing Bank] [Substitute]
By: By:
Date: Date:
The Agent
By:
on its own behalf
and on behalf of the Parent and the other parties to the Agreement and the
Security Trust Deed
Date:
108
Schedule 6
----------
Part A - Compliance Certificate
-------------------------------
to be delivered by an Authorised Officer of the Parent
------------------------------------------------------
The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Manager, Loans Agency [Date]
Dear Sirs,
United and Philips Communications B.V.
--------------------------------------
NLG 1,100,000,000,000 Multi-Currency Revolving
----------------------------------------------
Credit Facility, Loan Agreement dated [ ], 1997 (as from
--------------------------------------------------------
time to time amended, varied, extended, restated, refinanced
------------------------------------------------------------
or replaced the "Loan Agreement")
---------------------------------
We refer to the Loan Agreement and deliver this Certificate in respect
of the Six Months Period ended [Quarter Day] pursuant to clause 11.1(j)(ii)
thereof. Terms defined in the Loan Agreement shall have the same meaning when
used in this Certificate.
We confirm that:
1 Net Operating Cash Flow for the Restricted Group in respect of the Six
Month Period ending on [Quarter Day] was [ ] [insert calculation
details].
2 Cable TV Net Operating Cash Flow for the Restricted Group in respect of
the Six Month Period ending on [Quarter Day] was [ ] [insert
calculation details]/1/
3 As at the end of [Quarter Day] Total Debt was [ ] [insert
calculation details].
4 Total Debt Interest Charges for the Six Month Period ending on [Quarter
Day] was [ ] [insert calculation details].
5 On the basis of the current rate of interest payable in relation
thereto, the total forecast amount of interest and any other charges
payable in respect of [Borrowed Money of the Restricted Group] during
the twelve months immediately following [Quarter Day] will be [ ]. The
principal amount of [Borrowed Money of the Restricted Group] to be
repaid in accordance with the terms of [such Borrowed Money] during
such twelve months will be [ ] [insert calculation details]./2/
Based on the above, we confirm that on [Quarter Day]:
1 The ratio of Total Debt to Total Annualised Net Operating Cash Flow was
[ ] [insert calculation details].
2 The ratio of Total Debt to Cable TV Annualised Net Operating Cash Flow
was [ ] [insert calculation details]./1/
3 The ratio of Total Annualised Net Operating Cash Flow to Total Debt
Interest charges was [ ] [insert calculation details].
109
4 The ratio of Total Annualised Net Operating Cash Flow to Proforma Debt
Service was [ ] [insert calculation details]./2/
Accordingly, we confirm that [save as disclosed in this certificate] on
[Quarter Day] the Parent was in compliance with those covenants contained in
clause 12.2(a) to (d) inclusive of the Loan Agreement which were applicable as
at [Quarter Day].
We confirm that the representations and warranties contained in clause
10.1 of the Loan Agreement to be repeated in accordance with clause 10.3 of the
Loan Agreement, are true and correct as at the date hereof as if made with
respect to the facts and circumstances existing at such date.
For and on behalf of
United and Philips Communications B.V.
..................
Authorised Officer
/1/ Up to and including 31st December 1998 only.
/2/ From and including 31st December 2000 only.
110
Schedule 6
----------
Part B - Compliance Certificate to be delivered by the auditors of
------------------------------------------------------------------
the Restricted Group
--------------------
The Toronto-Dominion Bank,
Triton Court,
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Manager, Loans Agency [Date]
Dear Sirs,
United and Philips Communications B.V.
--------------------------------------
NLG 1,100,000,000,000 Revolving
-------------------------------
Credit Facility, Loan Agreement dated [ ], 1997 (as from
--------------------------------------------------------
time to time amended, varied, extended, restated,
-------------------------------------------------
refinanced or replaced the "Loan Agreement")
--------------------------------------------
We refer to the Loan Agreement and deliver this Certificate in respect
of the financial year ended [year end] pursuant to clause 11.1(j)(ii) thereof.
Terms defined in the Loan Agreement shall have the same meaning when used in
this Certificate.
We confirm that in our opinion:
1 Net Operating Cash Flow for the Restricted Group in respect of the
financial year ending on [year end] was [ ] [insert calculation
details].
2 Cable TV Net Operating Cash Flow for the Restricted Group in respect of
the financial year ending on [year end] was [ ] [insert calculation
details]./1/
3 As at the end of [year end] Total Debt was [ ] [insert calculation
details].
4 Total Debt Interest Charges for the financial year ending on [year end]
was [ ] [insert calculation details].
5 On the basis of the current rate of interest payable in relation
thereto, interest and any other specific rate charges payable in
respect of [Borrowed Money of the Restricted Group] during the twelve
months immediately following [year end] will be [ ]. The principal
amount of [Borrowed Money of the Restricted Group] to be repaid in
accordance with the terms of such Borrowed Money during such twelve
months will be [ ] [insert calculation details]./2/
Based on the above, we confirm that on [year end]:
1 The ratio of Total Debt to Total Annualised Net Operating Cash Flow was
[ ] [insert calculation details].
2 The ratio of Total Debt to Cable TV Annualised Net Operating Cash Flow
was [ ] [insert calculation details].
3 The ratio of Total Annualised Net Operating Cash Flow to Total Debt
Interest Charges was [ ] [insert calculation details].
4 The ratio of Total Annualised Net Operating Cash Flow to Pro-forma Debt
Service was [ ] [insert calculation details].
111
Accordingly, we confirm that in our opinion [and save as disclosed in
this Certificate] as at [year end] the Parent was in compliance with those
covenants contained in clause 12.2 (a) to (d) (inclusive) of the Loan Agreement
which were applicable as at [year end].
For and on behalf of
..............................
Auditors
/1/ Up to and including 31st December 1998 only.
/2/ From and including 31st December 2000 only.
112
Schedule 7
----------
Licences
--------
A: Austrian Licences
-----------------
"Austrian Licences" means the following documents and agreements:
(a) Telekabel Wien
--------------
(i) Gewerbeschein dated 5th November 1981 and
(ii) Gewerbeschein dated 30th October 1979
(iii) Konzessionsdekret dated 8th October 1981
(iv) Fernmeldebewilligung dated 13th September 1993
(v) Wegerechte: ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
(▇) Telekabel Graz GmbH
-------------------
(i) Gewerbeschein dated 22nd April 1980
(ii) Gewerbeschein dated 7th May 1984
(iii) Fernmeldebewilligung dated 24th October 1995
(c) Telekabel Klagenfurt GmbH
-------------------------
(i) Gewerbeschein dated 10th November 1980
(ii) Gewerbeschein dated 16th December 1982
(iii) Fernmeldebewilligung dated 17th January 1995
(d) Telekabel-Fernsehnetz Baden Betriebsgesellschaft mbh
----------------------------------------------------
(i) Gewerbeschein dated 4th December 1981
(ii) Fernmeldebewillignung dated 26th July 1990 held by
Kabel - TV - Sud GmbH (minority shareholder)
(e) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
-------------------------------------------------
Betriebsgesellschaft mbh
------------------------
(i) Gewerbeschein dated 26th June 1984
(ii) Fernmeldebewilligung dated 25th July
1990 held by Kabel-TV-Wiener Neustadt GmbH (minority
shareholder).
B: Belgian Licences
----------------
"Belgian Licences" means the following documents and agreements:
1 Brussels area:
(a) Municipality of Etterbeek:
--------------------------
113
Licence given by settlement agreement dated 26 May 1997 and
authorisation dated 19 May 1969.
(b) Municipality of Schaerbeek
--------------------------
Licence given by agreement dated 17 July 1968 and authorisation dated
21 October 1969.
(c) Municipality of Koekelberg
--------------------------
Licence given by agreement dated 19 April 1968 and authorisation dated
21 October 1969.
(d) Municipality of Jette
---------------------
Licence given by agreement dated 7 May 1968 and authorisation dated 6
February 1970.
(e) Municipality of Ganshoren
-------------------------
Licence given by agreements dated 19 March 1969 and 18 November 1988
and authorisation dated 6 February 1970.
(f) Municipality of Berghem-St-Agathe
---------------------------------
Licence given by agreement dated 29th December 1969 and agreement dated
20 July 1988, and authorisation dated 22 December 1970.
(g) Municipality of Forest
----------------------
Licence given by agreement dated 31 March 1969 and authorisation dated
21 December 1970.
2 Leuven area:
------------
(a) Municipality of Heverlee
------------------------
Licence given by agreement dated 22 November 1968 and authorisation
dated 1971.
(b) Municipality of Kessel-Lo
-------------------------
Licence given by agreement dated 5 December 1968, and authorisation
dated 1971.
(c) Municipality of Leuven
----------------------
Licence given by agreement dated 30 August 1968, and authorisation
dated 1971.
3 Telecommunications services
---------------------------
(a) Letter of the IBPT authorising Radio Public to provide Internet access
through the company's public telecommunications structure;
(b) Letter of the IBPT authorising Radio Public to operate a public
telecommunications system service as of 7 May 1997, in the territories
of Etterbeek, Shaerbeek, Koekelberg, ▇▇▇▇▇, Ganshoren,
Berghem-St.-Agathe, Forest and Leuven.
114
Schedule 8
----------
Form of Deed of Subordination
-----------------------------
DATED '
-------
[SUBORDINATED CREDITOR] (1)
and
THE TORONTO-DOMINION BANK (2)
(as Security Trustee)
------------------------------
DEED OF SUBORDINATION
------------------------------
▇▇▇▇▇▇ ▇▇▇▇
London
115
THIS DEED OF SUBORDINATION is dated ' and made BETWEEN:
(1) [name of Subordinated Creditor] (No. [ ]) whose [registered
office/principal place of business] is at [ ] (the
"Subordinated Creditor"); and
(2) THE TORONTO-DOMINION BANK of Triton Court, ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as Security Trustee.
WHEREAS
(A) By an agreement dated [ ], 1997 (as from time to time
amended, varied, extended, restated, refinanced or replaced, the
"Facility Agreement") made between (1) United and Philips
Communications b.v., as Parent and a Borrower, (2) the entities listed
in part C of schedule 1 thereto as Borrowers, (3) the entities listed
in part B of schedule 1 thereto as Original Guarantors, (4) the
Arranger, (5) the banks whose names and addresses are set out in part A
of schedule 1 thereto as Banks and (6) the Agent and (7) the Security
Trustee, the Banks agreed, upon and subject to the terms and conditions
of the Facility Agreement, to make available to the Borrowers a
reducing revolving credit facility of up to NLG 1,100,000,000.
(B) The Subordinated Creditor has or will make certain Borrowed Money
available to the Borrowers and/or other members of the Restricted Group
pursuant to the Subordinated Agreements.
(C) The Parent has agreed to procure that the Subordinated Creditor enter
into this Deed pursuant to clause 11.1(x) of the Facility Agreement.
WITNESSES as follows:
1 Definitions and interpretation
------------------------------
1.1 Definitions
In this Deed:
"Distribution" means any payment by or distribution of assets whether
in cash, property, securities or otherwise;
"Group Liabilities" means all Liabilities of the Subordinated Creditor
to any member of the Restricted Group;
"Insolvency Event" means, any of the events set out in clauses 13.1(i),
(k), (l) or (o) of the Facility Agreement;
"Liabilities" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"Subordinated Agreements" means the agreements described in the
schedule together with any other agreement relating to Subordinated
Borrowed Money;
"Subordinated Borrowed Money" means all Liabilities of members of the
Restricted Group to the Subordinated Creditor in respect of Borrowed
Money howsoever arising, including, without limitation, any such
Liabilities arising by virtue of any right of subrogation,
reimbursement or indemnity; and
"Subordinated Liabilities" means all Subordinated Borrowed Money
including, without limitation, all Liabilities of any member of the
Restricted Group under the Subordinated Agreements, including interest
thereon or which may arise as a result of the Subordinated
116
Creditor entering into or performing all or any of its obligations
under any Subordinated Agreement.
1.2 Facility Agreement definitions
------------------------------
Unless the context otherwise requires, or unless otherwise defined in
this Deed (i) words and expressions defined in the Facility Agreement
shall have the same meaning when used in this Deed (including its
recitals) and (ii) words and expressions defined in the Security Trust
Deed shall, unless otherwise defined in the Facility Agreement, shall
have the same meaning when used in this Deed (including its recitals).
1.3 Interpretation
--------------
The interpretative provisions in clauses 1.3, 1.4, 1.5 and 1.6 of the
Facility Agreement shall apply, mutatis mutandis, in this Deed.
1.4 Effect as a Deed
----------------
This Deed is intended to take effect as a deed notwithstanding that the
Security Trustee and/or the Subordinated Creditor may have executed it
under hand only.
1.5 Successors and assigns
----------------------
The expressions "Borrower", "Obligor", "Subordinated Creditor",
"Beneficiary", "Security Trustee", "Agent", "Parent" and "Member of the
Restricted Group" include, where the context admits, their respective
successors.
2 Deferral undertakings
---------------------
2.1 Subordinated Creditor undertakings
----------------------------------
The Subordinated Creditor hereby undertakes with the Security Trustee
that, notwithstanding any provision of any of the Subordinated
Agreements, for so long as any Secured Obligations remain outstanding,
it will, and will procure that its Subsidiaries will, unless with the
prior written consent of the Security Trustee, directly or indirectly:
(a) not demand or accept payment or repayment of, in whole or
part, from any member of the Restricted Group or any other
person liable, any of the Subordinated Liabilities or any
distribution of assets (whether in cash, property, securities
or otherwise) in respect of the same;
(b) not take, accept, receive or permit to exist any Encumbrance
to secure the payment and/or repayment of any of the
Subordinated Liabilities;
(c) not assign, transfer, create any Encumbrance over or otherwise
dispose of, any of the Subordinated Liabilities;
(d) not take, accept or receive any Distribution; or
(e) (save only to the extent it may be required to do so under any
applicable law) not set-off any Subordinated Liabilities
against any Group Liabilities;
(f) not commence any proceedings against any member of the
Restricted Group or take any action for or in respect of the
recovery of any of the Subordinated Liabilities, or any part
thereof (including, without limitation, any action or step
with a view to winding up any member of the Restricted Group);
117
(g) not enter into any transaction, whether by way of borrowing or
otherwise, constituting, or otherwise suffer to arise any
Group Liabilities;
(h) not agree to any variation of the terms of any Subordinated
Agreement; or (i) procure that each of its Subsidiaries (which
is not a member of the Restricted Group) enters into a Deed of
Subordination prior to any moneys in respect of any loans made
by such Subsidiary to any member of the Restricted Group and
provides the Agent with such evidence as it may reasonably
request as to the power and authority of the relevant
Subsidiary to enter into such Deed of Subordination and that
such Deed of Subordination constitutes valid and legally
binding obligations of the relevant Subsidiary enforceable in
accordance with its terms.
[2.2 Permitted payments
------------------
If (A) no Default has occurred and is continuing or would result from
the making of any payment under this clause 2.2 and (B) in respect of
each of the two most recent previous consecutive Quarterly Periods the
ratio of Total Debt to Total Annualised Net Operating Cash Flow
(calculated on the last day of each such Quarterly Period by reference
to the Six Month Period ended on such date) each as demonstrated in the
Compliance Certificate for the relevant Quarterly Period that has been
delivered to the Agent under the Facility Agreement for the Quarterly
Period ending immediately prior to such date is less than and remains
below 3:1, then this clause shall not prevent the payment of any
interest on any Subordinated Agreement.]
2.3 Notification of Subordinated Liabilities
----------------------------------------
The Subordinated Creditor hereby agrees to notify the Security Trustee
of the amounts from time to time of the Subordinated Liabilities and
the Group Liabilities which may be scheduled to be made by any member
of the Restricted Group to the Subordinated Creditor.
3 Subordination
-------------
3.1 Insolvency Events
-----------------
Upon an Insolvency Event occurring in respect of any member of the
Restricted Group:
(a) the claims of the Subordinated Creditor in respect of the
Subordinated Liabilities shall be postponed in all respects to
the Secured Obligations;
(b) the Subordinated Creditor shall not, unless otherwise directed
by the Security Trustee, prove for the Subordinated
Liabilities until the Secured Obligations have first been paid
or discharged in full (and for all purposes any Distribution
received by the Security Trustee shall only be taken to
discharge the Secured Obligations to the extent of the actual
amount received);
(c) if the Subordinated Creditor is directed by the Security
Trustee to prove for the Subordinated Liabilities then it
shall act in accordance with such directions and shall procure
that any resultant Distributions shall be made by the
liquidator of the relevant member of the Restricted Group, or
any other person making the Distribution, to the Security
Trustee to the extent necessary to repay all the Secured
Obligations in full; and
(d) the Subordinated Creditor hereby irrevocably authorises and
directs the Security Trustee to submit any proof and/or to
instruct the relevant liquidator or other person to make
Distributions in accordance with the foregoing.
3.2 Payments contrary to this Deed
------------------------------
In the event of:
118
(a) any payment or other Distribution being made to, or a right of
set-off of the Group Liabilities against the Subordinated
Liabilities being exercised by, the Subordinated Creditor or
any member of the Restricted Group contrary to the provisions
of this Deed;
(b) any Distribution being made by a liquidator or other person to
the Subordinated Creditor, rather than to the Security
Trustee, as required by clause 3.1; or
(c) the Subordinated Creditor or any member of the Restricted
Group being required to exercise rights of set-off of the
Group Liabilities against the Subordinated Liabilities under
applicable law (as contemplated in clause 2.1(e)).
the Subordinated Creditor shall forthwith pay to the Security Trustee
an amount equal to the Distributions which shall have been so received
by it up to an aggregate amount equal to the Secured Obligations or, as
the case may be, in the case of set-off, an amount equal to the sum
set-off up to an aggregate amount equal to the Secured Obligations and,
until such payment to the Security Trustee, the Subordinated Creditor
will hold such sums on trust for the Security Trustee and any such sums
so paid to the Security Trustee shall be applied in accordance with the
terms of the Security Trust Deed in or toward discharge of the Secured
Obligations.
3.3 Subordinated Agreements
-----------------------
Notwithstanding clauses 2 and 3, nothing contained in this Deed is
intended to or shall impair, as between the members of the Restricted
Group and the Subordinated Creditor, the obligations of the members of
the Restricted Group under the Subordinated Agreements, including the
obligation to pay to the Subordinated Creditor all of the Subordinated
Liabilities. Until all of the Subordinated Liabilities are paid in full
by the relevant members of the Restricted Group in funds which may, at
the time when the same are received, be fully retained by the
Subordinated Creditor after giving effect to this Deed, the members of
the Restricted Group shall remain fully liable under the Subordinated
Agreements and any payment made to the Subordinated Creditor in
contravention of the terms of this Deed or by the Subordinated Creditor
to the Agent pursuant to this Deed shall not be deemed for these
purposes to have in any way extinguished the obligations of the members
of the Restricted Group to the Subordinated Creditor in relation to the
Subordinated Liabilities pursuant to the Subordinated Agreements.
3.4 Subrogation
-----------
If the Secured Obligations are partially paid out of any proceeds
received in respect of or on account of any Subordinated Liabilities,
the Creditor will not be subrogated to the Secured Obligations so paid
(or any Collateral Instrument) until the Secured Obligations have been
irrevocably paid in full.
4 Continuing obligations
----------------------
4.1 Continuing obligations
----------------------
The obligations of the Subordinated Creditor hereunder shall be
continuing obligations and shall be and remain fully effective until
this Deed is formally released following the discharge in full of the
Secured Obligations notwithstanding any intermediate reduction or
settlement of the Secured Obligations or any part thereof and
notwithstanding any increase in or variation of the Secured Obligations
or any amendment, variation, extension, restatement, refinancing or
replacement of the Facility Agreement any Interest Rate Hedging
Arrangements or Security Document.
4.2 Statements of account
---------------------
Any statement of account of the Parent, signed as correct by an officer
of the Agent, showing the amount of the Secured Obligations shall be
prima facie evidence of the amount of the Secured obligations.
119
4.3 Continuing security and other matters
-------------------------------------
This Deed shall:
(a) secure the ultimate balance from time to time of the Secured
Obligations and shall be a continuing security,
notwithstanding any settlement of account or other matter
whatsoever;
(b) be in addition to any present or future Collateral Instrument,
right or remedy held by or available to the Beneficiaries or
any of them; and
(c) not be in any way prejudiced or affected by the existence of
any Collateral Instrument or other right or remedy or by the
same becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by the Beneficiaries
or any of them dealing with, exchanging, varying or failing to
perfect or enforce any of the same or giving time for payment
or indulgence or compounding with any other person liable.
4.4 Liability unconditional
-----------------------
The liability of the Subordinated Creditor shall not be affected,
discharged or reduced by reason of:
(a) the Incapacity or any change in the name, style or
constitution of any Obligor or any other person;
(b) the Beneficiaries (or any of them) granting any time,
indulgence or concession to, or compounding with, discharging,
releasing or varying the liability of, any Obligor or any
other person or renewing, determining, varying or increasing
any accommodation, facility or transaction or otherwise
dealing with the same in any manner whatsoever or concurring
in, accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from any
Obligor or any other person; or
(c) any act or omission which but for this provision might operate
to exonerate the Subordinated Creditor.
4.5 Collateral Instruments
----------------------
None of the Beneficiaries shall be obliged to make any claim or demand
on the Obligors or to resort to any Collateral Instrument or other
means of payment now or hereafter held by or available to them or it
before enforcing this Deed and no action taken or omitted by the
Beneficiaries in connection with any such Collateral Instrument or
other means of payment shall discharge, reduce, prejudice or affect the
liability of the Subordinated Creditor under this Deed nor (until
sufficient money has been received by the Beneficiaries (whether or not
credited to a suspense account), to discharge irrevocably the Secured
Obligations in full and no Beneficiary is under any commitment to
permit any Secured Obligations to become outstanding) shall any of the
Beneficiaries be obliged to account for any money or other property
received or recovered in consequence of any enforcement or realisation
of any such Collateral Instrument or other means of payment.
4.6 Suspense accounts
-----------------
Any money received in connection with this Deed (whether before or
after any Incapacity of any Obligor, any other person or the
Subordinated Creditor) may be placed to the credit of an interest
bearing suspense account (until sufficient money has been credited to
such suspense account to irrevocably discharge the Secured Obligations
in full and no Beneficiary is under any commitment to permit any
Secured Obligations to become outstanding) with a view to preserving
the rights of the Beneficiaries to prove for the whole of their
respective claims against the Obligors or any other person liable or
may be applied in or towards satisfaction of such of the Secured
Obligations in accordance with the terms of the Security Trust Deed.
Interest shall
120
accrue on monies from time to time standing to the credit of any
suspense account at the rate agreed between the Security Trustee and
the Subordinated Creditor at the relevant time or, failing such
agreement, the Security Trustee's overnight deposit rate from time to
time and shall be credited to such suspense account or may be applied
in or towards satisfaction of the Secured Obligations in accordance
with the terms of the Security Trust Deed.
4.7 Settlements conditional
-----------------------
Any release, discharge or settlement between the Subordinated Creditor
and the Beneficiaries (or any of them) shall be conditional upon no
security, disposition or payment to the Beneficiaries (or any of them)
by any Obligor or any other person liable being void, set aside or
ordered to be refunded pursuant to any enactment or law relating to
bankruptcy, liquidation, administration or insolvency or for any other
reason whatsoever and if such condition shall not be fulfilled the
Security Trustee shall be entitled to enforce this Deed subsequently as
if such release, discharge or settlement had not occurred and any such
payment had not been made.
4.8 Retention of this Deed
----------------------
Notwithstanding any other provision of this Deed, this Deed shall not
be released, the Security Trustee shall be entitled to retain this Deed
and all the provisions of this Deed shall remain in full force and
effect until the irrevocable payment or discharge in full of all the
Secured Obligations.
5 Representations and warranties
------------------------------
5.1 Representations and warranties
------------------------------
The Subordinated Creditor represents and warrants in respect of itself
and its Subsidiaries to the Security Trustee that:
(a) Due incorporation
-----------------
the Subordinated Creditor is duly [incorporated] under the
laws of' as a [limited liability company] and has the
[corporate] power to carry on its business as it is now being
conducted and to own its property and other assets;
(b) Corporate power
---------------
the Subordinated Creditor has the [corporate] power to
execute, deliver and perform its obligations under this Deed;
all necessary [corporate, shareholder] and other action has
been taken to authorise the execution, delivery and
performance of the same;
(c) Binding obligations
-------------------
this Deed constitutes valid and legally binding obligations of
the Subordinated Creditor enforceable in accordance with its
terms;
(d) No conflict with other obligations
----------------------------------
the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, this
Deed by the Subordinated Creditor will not (i) contravene any
existing applicable law, statute, rule or regulation or any
judgment, decree or licence to which the Subordinated Creditor
is subject, (ii) conflict with, or result in any breach of any
of the terms of, or constitute a default under, any agreement,
permit or other instrument to which the Subordinated Creditor
is a party or is subject or by which it or any of its property
is bound, (iii) contravene or conflict with any provision of
the Subordinated Creditor's [Memorandum and Articles of
Association] or (iv)result in the creation or imposition of or
oblige the Subordinated Creditor or any of its Subsidiaries
121
to create any Encumbrance on any of the Subordinated
Creditor's or any of its Subsidiaries' undertakings, assets,
rights or revenues;
(e) Consents obtained
-----------------
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public
bodies or authorities (in each case, solely in their capacity
as such a body or authority and not in any other capacity) or
courts required by the Subordinated Creditor to authorise, or
required by the Subordinated Creditor in connection with, the
execution, delivery, validity, enforceability or admissibility
in evidence of this Deed or the performance by the
Subordinated Creditor of its obligations under this Deed has
been obtained or made and is in full force and effect and
there has been no material default which is continuing in the
observance of the conditions or restrictions (if any) imposed
in, or in connection with, any of the same;
(f) No filings required
-------------------
it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Deed that
it or any other instrument be notarised, filed, recorded,
registered or enrolled in any court, public office in any
relevant jurisdiction or that any stamp, registration or
similar tax or charge be paid in any relevant jurisdiction on
or in relation to this Deed and this Deed is in proper form
for its enforcement in the courts of any relevant
jurisdiction;
(g) No litigation
-------------
no litigation, arbitration or administrative proceeding is
taking place, or, to the knowledge of the officers of the
Subordinated Creditor pending or threatened against the
Subordinated Creditor or any of its Subsidiaries or Associated
Companies which would or is reasonably likely to have a
material adverse effect on the ability of the Subordinated
Creditor to fulfil its obligations under this Deed; and
(h) Choice of law
-------------
the choice by the Subordinated Creditor of English law to
govern this Deed and the submission by the Subordinated
Creditor to the jurisdiction of the English courts is valid
and binding.
5.2 Repetition
----------
The representations and warranties in clause 5.1 shall be deemed to be
repeated by the Subordinated Creditor in respect of itself and its
Subsidiaries on and as of each date on which any of the representations
and warranties contained in clause 10.1 of the Facility Agreement are
repeated or deemed to be repeated with reference to the facts and
circumstances existing on such day.
5.3 Covenant
--------
The Subordinated Creditor undertakes with the Security Trustee that it
will, without prejudice to clause 5.1, (i) obtain or cause to be
obtained, maintain in full force and effect and comply in all material
respects with the conditions and restrictions (if any) imposed in, or
in connection with, every consent, authorisation, licence or approval
of governmental or public bodies or authorities (in each case, solely
in their capacity as such a body or authority and not in any other
capacity) or courts (and do, or cause to be done, all other acts and
things) which may from time to time be necessary or reasonably
desirable under applicable law of any relevant jurisdiction for the
continued due performance of all its obligations under this Deed, and
(A) ensure that none of the same is revoked, cancelled, suspended,
withdrawn, terminated, expires and is not renewed or
122
otherwise ceases to be in full force and effect without a new one
having first been put in place with the Subordinated Creditor on
substantially identical terms or on terms more beneficial to the
Subordinated Creditor, and (B) ensure that none of the same is modified
in any material respect and that the Subordinated Creditor does not
commit any default in the observance of the conditions or restrictions
(if any) imposed in, or in connection with, any of the same which, in
the case of any of the events referred to in (B) above, in the
reasonable opinion of the Majority Banks, would or is reasonably likely
to have a material adverse effect on the ability of the Subordinated
Creditor to perform all or any of its obligations under or otherwise to
comply with the terms of this Deed, and (ii) ensure that this Deed is
notarised, filed, recorded, registered or enrolled in any court or
public office in any relevant jurisdiction necessary to ensure the
legality, validity, enforceability or admissibility in evidence thereof
and that any stamp, registration or similar tax or charge is paid in
any relevant jurisdiction on or in relation to this Deed.
6 Benefit of this Deed
--------------------
6.1 Benefit and burden
------------------
This Deed shall be binding upon the Subordinated Creditor and its
successors in title and shall enure for the benefit of the Security
Trustee (and any successor Security Trustee appointed pursuant to the
terms of the Security Trust Deed) and their respective successors for
the benefit of the Beneficiaries in accordance with the provisions of
the Security Trust Deed.
6.2 No assignment
-------------
The Subordinated Creditor may not assign or transfer any of its rights
or obligations under this Deed.
6.3 The Security Trust Deed
-----------------------
The Subordinated Creditor and the Security Trustee hereby acknowledge
that the covenants of the Creditor contained in this Deed and the
rights constituted by this Deed and all moneys, property and assets
paid to, or held, received or recovered by the Security Trustee
pursuant to or in connection with this Deed are held by the Security
Trustee subject to and on the terms of the trusts declared in the
Security Trust Deed.
6.4 Changes in constitution or reorganisation of Beneficiaries
----------------------------------------------------------
For the avoidance of doubt and without prejudice to the provisions of
clause 6.1, this Deed shall remain binding on the Subordinated Creditor
notwithstanding any change in the constitution of any of the
Beneficiaries or their or its absorption in, or amalgamation with, or
the acquisition of all or part of their or its undertaking or assets
by, any other person, or any reconstruction or reorganisation of any
kind, to the intent that this Deed shall remain valid and effective in
all respects in favour of the Security Trustee (and any successor
Security Trustee appointed pursuant to the provisions of the Security
Trust Deed and their respective successors in title) as trustee for the
Beneficiaries and any assignee, transferee or other successor in title
of a Beneficiary.
7 Notices and other matters
-------------------------
7.1 Notices
-------
Every notice, request, demand or other communication under this Deed
shall be made in accordance with the provisions, mutatis mutandis, of
clause 19 of the Facility Agreement and shall be sent to the
Subordinated Creditor at its address set out above (facsimile number:
[!]) or to the Security Trustee at its address set out in clause 19 of
the Facility Agreement or to such other address or facsimile number as
is notified by one party to this Deed to the other.
123
7.2 No implied waivers, remedies cumulative
---------------------------------------
No failure or delay on the part of the Security Trustee to exercise any
power, right or remedy under this Deed shall operate as a waiver
thereof, nor shall any single or partial exercise by the Security
Trustee of any power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
The remedies provided in this Deed are cumulative and are not exclusive
of any remedies provided by law.
7.3 Other Collateral Instruments
----------------------------
The Subordinated Creditor agrees to be bound by this Deed
notwithstanding that any other person intended to execute or to be
bound by any Collateral Instrument may not do so or may not be
effectually bound and notwithstanding that such other Collateral
Instrument may be determined or be or become invalid or unenforceable
against any other person, whether or not the deficiency is known to the
Security Trustee or any of the other Beneficiaries.
7.4 Severability
------------
Each of the provisions of this Deed is severable and distinct from one
another and if at any time one or more of such provisions is or becomes
illegal, invalid or unenforceable under any applicable law the validity
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
7.5 Counterparts
------------
This Deed may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
8 Law and jurisdiction
--------------------
8.1 Governing law
-------------
This Deed is governed by and shall be construed in accordance with
English law.
8.2 Submission to jurisdiction
--------------------------
The Subordinated Creditor agrees for the benefit of the Security
Trustees that:
(a) if any party has any claim against any other arising out of or
in connection with this Agreement such claim shall (subject to
clause 8.2(c)) be referred to the High Court of Justice in
England, to the jurisdiction of which each of the parties
irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over
any such claim against the Security Trustee shall be an
exclusive jurisdiction and no courts outside England shall
have jurisdiction to hear or determine any such claim; and
(c) nothing in this clause 8.2 shall limit the right of the
Security Trustee to refer any such claim against the
Subordinated Creditor to any other court of competent
jurisdiction outside England, to the jurisdiction of which the
Subordinated Creditor hereby irrevocably agrees to submit, nor
shall the taking of proceedings by the Security Trustee before
the courts in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction whether concurrently or
not.
8.3 Agent for service of process
----------------------------
124
The Subordinated Creditor irrevocably designates, appoints and
empowers' Limited at present of' to receive for it and on its behalf
service of process issued out of the High Court of Justice in England
in relation to any claim arising out of or in connection with this
Agreement.
IN WITNESS whereof this Deed has been executed by each party hereto the day and
year first above written.
125
Schedule
--------
Subordinated Agreements
-----------------------
1 The agreements, the details of which are set out below:
Date Document Parties
' ' '
2 Each and every Encumbrance issued or entered into by the Parent or any
member of the Restricted Group in favour of the Subordinated Creditor
in respect of the Subordinated Borrowed Money.
126
Subordinated Creditor
---------------------
EXECUTED as a DEED )
by [SUBORDINATED CREDITOR] )
Security Trustee
----------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK )
by: )
127
Schedule 9
----------
Principal Agreements
--------------------
1 The General Services Agreements between the Parent and each of:
(i) Radio Public, effective from 1st January 1995;
(ii) Norkabel, effective from 1st January, 1997; and
(iii) the Telekabel Entities (other than CNA), effective from 1st
January, 1995.
2 The Radio Public Bond.
3 The Telekabel Bond.
4 The Austrian Agreements.
5 The Option Agreements.
6 The Stock Option Plan.
7 The Securities Purchase and Conversion Agreement.
8 The ▇▇▇▇▇ Loan Agreement.
9 The documents constituting the Norwegian I/C Indebtedness.
128
Schedule 10
-----------
Part A - Deed of Guarantor Accession
------------------------------------
To: THE TORONTO-DOMINION BANK as Security Trustee
From: [PROPOSED GUARANTOR] and [UNITED AND PHILIPS
COMMUNICATIONS B.V.]
Date: [ ]
UNITED AND PHILIPS COMMUNICATIONS B.V. NLG 1,100,000,000 Senior Reducing
Revolving Credit Agreement dated , 1997 (as from time to time
amended, varied, extended, restated, refinanced or replaced the "Facility
Agreement")
We refer to clause 9.17 of the Facility Agreement. Words and expressions defined
in the Facility Agreement have the same meanings when used in this Deed.
We, [name of company] of [address] agree to become an Acceding Guarantor and to
be bound by the terms of the Facility Agreement as an Acceding Guarantor in
accordance with clause 9.16 of the Facility Agreement and the Security Trust
Deed as a Guarantor in accordance with clause 10.16 of the Security Trust Deed.
[Local law limitations on amounts guaranteed by Acceding Guarantor (if any)]
Our address for notices for the purposes of clause 19.1 of the Facility
Agreement is:
[
]
This Deed is intended to be executed as a deed and is governed by English law.
[PROPOSED GUARANTOR] [UNITED AND PHILIPS COMMUNICATIONS
B.V.]
[Appropriate execution clause] [Appropriate execution clause]
By: By:
129
By:
THE TORONTO-DOMINION BANK
[Appropriate execution clause]
By
130
Schedule 10
-----------
Part B - Documents and Evidence to be delivered by an Acceding Guarantor
------------------------------------------------------------------------
(a) Deed of Guarantor Accession, duly executed under seal by the
Acceding Guarantor and the Parent;
(b) a Share Security over the shares of the Acceding
Guarantor, duly executed as a deed by the parties to it (the
"Relevant Shareholders") and such other Security Documents as
the Agent may reasonably require;
(c) a copy of the constitutional documents of each of the Acceding
Guarantor and the Relevant Shareholders;
(d) a copy of a resolution of the board of directors of each
of the Acceding Guarantor and Relevant Shareholders approving
the terms of, and the transactions contemplated by, the Deed
of Guarantor Accession, the relevant Security Documents or the
relevant Share Security (as appropriate) and authorising its
appropriate officers to execute and deliver the Deed of
Guarantor Accession, the relevant Security Documents or the
Share Security (as appropriate) and give all notices and take
all other action required by it under the Finance Documents;
(e) a certificate of a director of the Acceding Guarantor
certifying that the amounts to be guaranteed by the Acceding
Guarantor would not cause any guaranteeing limit binding on it
to be exceeded;
(f) a copy of any other authorisation or other document,
opinion or assurance which is necessary for the execution,
delivery and validity and enforceability of the Deed of
Guarantor Accession, the relevant Security Documents or the
Share Security;
(g) a specimen of the signature of each person authorised by a
resolution referred to in paragraph (d) above;
(h) if available, a copy of the latest audited accounts of the
Acceding Guarantor;
(i) a legal opinion of English legal advisers, acceptable to
the Agent, addressed to the Security Trustee on behalf of the
Beneficiaries (as defined in the Security Trust Deed)
(j) if the Acceding Guarantor and/or a Relevant Shareholder is
incorporated in a jurisdiction outside England, a legal
opinion of legal advisers, acceptable to the Agent, in the
jurisdiction of incorporation of the Acceding Guarantor and/or
Relevant Shareholder (as appropriate), addressed to the
Security Trustee on behalf of the Beneficiaries (as defined in
the Security Trust Deed);
(k) a certificate of an authorised signatory of the Acceding
Guarantor and each Relevant Shareholder certifying that each
copy document specified in part B of this schedule 10 and
relating to it is correct, complete and in full force and
effect as at a date no earlier than the date of the Deed of
Guarantor Accession, relevant Security Documents or the Share
Security (as appropriate);
(l) a certificate of an authorised signatory of the Parent
confirming that its constitutional documents have not been
amended (or, if they have, enclosing a copy of the amended
constitutional documents) and that all authorisations and
resolutions authorising its appropriate officers to execute
and deliver the Deed of Guarantor Accession remain in full
force and effect;
(m) if applicable, share certificates and stock transfer forms
executed in blank and all other documents required to be
delivered to the Security Trustee in connection with the
131
relevant Share Security and such other documents as may be
required pursuant to the relevant Security Documents; and
(n) such other documents as the Agent may reasonably require
after taking the advice of the legal advisers referred to in
paragraphs (i)and (j) above.
132
Schedule 11
-----------
Part A - Deed of Borrower Accession
-----------------------------------
To: THE TORONTO-DOMINION BANK as Agent
From: [NEW ▇▇▇▇▇] [TELEKABEL WIEN] and [UNITED AND PHILIPS
COMMUNICATIONS B.V.]
Date: [ ]
UNITED AND PHILIPS COMMUNICATIONS B.V. NLG 1,100,000,000 Senior Reducing
Revolving Credit Agreement dated , 1997 (as from time to time
amended, varied, extended, restated, refinanced or replaced the "Facility
Agreement")
We refer to [clause 3.5] [clause 3.6] of the Facility Agreement. Words and
expressions defined in the Facility Agreement have the same meanings when used
in this Deed.
[Name of New ▇▇▇▇▇] [Telekabel Wien] of [address] (the "Proposed Borrower")
agrees to become a Borrower and to be bound by the terms of the Facility
Agreement as a Borrower in accordance with [clause 3.5] [clause 3.6] of the
Facility Agreement and the Security Trust Deed as a Borrower in accordance with
clause 10.16 of the Security Trust Deed.
The address for notices of [New ▇▇▇▇▇] [Telekabel Wien] for the purposes of
clause 19.1 of the Facility Agreement is:
[
]
This Deed is intended to be executed as a deed and is governed by English law.
[NEW ▇▇▇▇▇] [TELEKABEL WIEN] [UNITED AND PHILIPS COMMUNICATIONS
B.V.]
Authorised Signatory Authorised Signatory
[Appropriate execution clause] [Appropriate execution clause]
By: By:
By:
THE TORONTO-DOMINION BANK
[Appropriate execution clause]
By
133
Schedule 11
-----------
Part B - Documents and Evidence to be delivered by New ▇▇▇▇▇
------------------------------------------------------------
(a) a Deed of Borrower Accession, duly executed by New ▇▇▇▇▇ and
the Parent;
(b) a copy of the articles of association, certificate of
registration and other constitutional documents of New ▇▇▇▇▇
(as updated following the Norwegian Merger);
(c) a copy of a resolution of the board of directors of New
▇▇▇▇▇ approving the terms of, and the transactions
contemplated by, the Deed of Borrower Accession and
authorising its appropriate officers to execute and deliver
the Deed of Borrower Accession and to give all notices
(including, where applicable, Drawdown Notices) and take all
other action required by it under the Finance Documents;
(d) a certificate of a director of New ▇▇▇▇▇ confirming that
utilisation of the Facility up to the Norwegian Loan Amount
would not cause any borrowing limit binding on it to be
exceeded;
(e) a copy of any other authorisation or other document,
opinion or assurance which is necessary for the execution,
delivery, validity and enforceability of the Deed of Borrower
Accession or any other Finance Document insofar as it is
necessitated by the execution of the Deed of Borrower
Accession;
(f) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above;
(g) if available, the latest audited accounts of New ▇▇▇▇▇;
(h) a legal opinion of English legal advisers, acceptable to the
Agent, addressed to the Banks;
(i) a legal opinion of legal advisers, acceptable to the Agent, in
Norway, addressed to the Banks;
(j) a certificate of an authorised signatory of New ▇▇▇▇▇
certifying that each copy document specified in part B of this
schedule 11 is correct, complete and in full force and effect
as at a date no earlier than the date of the Deed of Borrower
Accession;
(k) a certificate of an authorised signatory of the Parent
confirming that its constitutional documents have not been
amended (or, if they have, enclosing a copy of the amended
constitutional documents) and that all authorisations and
resolutions authorising its appropriate officers to execute
and deliver the Deed of Borrower Accession in full force and
effect;
(l) Copy of minutes from general meeting in Norkabelgruppen AS,
evidencing the decision to merge Norkabelgruppen AS and ▇▇▇▇▇
Kabel-TV AS, including copies of summons to such general
meeting (with annexes);
(m) Copy of minutes from general meeting in ▇▇▇▇▇ ▇▇▇▇▇-TV AS,
evidencing the decision to merge Norkabelgruppen AS and ▇▇▇▇▇
Kabel-TV AS, including copies of summons to such general
meeting (with annexes);
(n) Copy of merger agreement between Norkabelgruppen AS and ▇▇▇▇▇
Kabel-TV AS (with annexes);
(o) Copies of minutes from board meeting in Norkabelgruppen AS,
evidencing the board's approval of the merger agreement with
▇▇▇▇▇ ▇▇▇▇▇-TV AS;
134
(p) Copies of minutes from board meeting in ▇▇▇▇▇-▇▇▇▇▇-TV AS,
evidencing the board's approval of the merger agreement with
Norkabelgruppen AS;
(q) Copy of minutes from board meeting in Norkabelgruppen AS,
evidencing the decision to merge Norkabelgruppen AS, Norkabel
AS and Oslo Kabelanlegg AS;
(r) Copy of filing to the Norwegian Companies Register from
Norkabel AS, regarding the decision to merge Norkabel AS with
Norkabelgruppen AS;
(s) Copy of filing to the Norwegian Companies Register from Oslo
Kabelanlegg AS, regarding the decision to merge Oslo
Kabelanlegg AS with Norkabelgruppen AS;
(t) Copy of filing to the Norwegian Companies Register from
Norkabelgruppen AS, regarding the decision to merge
Norkabelgruppen AS with ▇▇▇▇▇ ▇▇▇▇▇-TV AS;
(u) Copy of existing company certificates of Norkabel AS, Oslo
Kabelanlegg AS, Norkabelgruppen AS and ▇▇▇▇▇ Kabel-TV AS (not
more than one month old) prior to the mergers;
(v) Copy of new company certificate of ▇▇▇▇▇ ▇▇▇▇▇-TV AS after
registration of the merger with Norkabelgruppen AS;
(w) Such other documents as the Agent may reasonably require to
ensure that all security granted to the Security Trustee prior
to the Norwegian Merger remains in place.
135
Schedule 12
-----------
[Intentionally left blank]
136
Schedule 13
-----------
Part A - Norwegian Security Documents
-------------------------------------
(if at the relevant time the Norwegian Merger
---------------------------------------------
has not occurred)
-----------------
A Security provided by Norkabel, Kanal 2 A/S ("Kanal"), Norkabel A/S
("NAS") and Oslo Kabelanlegg A/S ("OK")
1 Norkabel Pledge(s) of Shares by United Communications International,
the Parent and/or ▇▇▇▇▇ dated 5th March 1997, which has been either
assigned for the benefit of the Security Trustee by ING Bank N.V. or
re-executed in favour of the Security Trustee in the same form mutatis
mutandis;
2 Kanal Pledge of Shares by Norkabel, dated 5th March 1997, which has
been either assigned for the benefit of the Security Trustee by ING
Bank N.V. or re-executed in favour of the Security Trustee in the same
form mutatis mutandis;
3 NAS Pledge of Shares by Norkabel, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank
N.V. or re-executed in favour of the Security Trustee in the same form
mutatis mutandis;
4 OK Pledge of Shares by Norkabel, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank
N.V. or re-executed in favour of the Security Trustee in the same form
mutatis mutandis;
5 Assignment of Receivables by Norkabel, dated 5th March 1997, which has
been either assigned for the benefit of the Security Trustee by ING
Bank N.V. or re-executed in favour of the Security Trustee in the same
form mutatis mutandis;
6 Assignment of Receivables by NAS, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank
N.V. or re-executed in favour of the Security Trustee in the same form
mutatis mutandis;
7 Assignment of Receivables by OK, dated 5th March 1997, which has been
either assigned for the benefit of the Security Trustee by ING Bank
N.V. or re-executed in favour of the Security Trustee in the same form
mutatis mutandis;
8 Assignment of Receivables by Kanal, dated 5th March 1997, which has
been either assigned for the benefit of the Security Trustee by ING
Bank N.V. or re-executed in favour of the Security Trustee in the same
form mutatis mutandis;
9 Pledge of Bank Accounts by Norkabel, NAS, OK and Kanal, dated 5th March
1997, which has been either assigned for the benefit of the Security
Trustee by ING Bank N.V. or re-executed in favour of the Security
Trustee in the same form mutatis mutandis;
10 Declarations of Norkabel concerning Mortgages over Stock of Goods and
Motor Vehicles together with Factoring Agreement and Transcript of
Register, in substantially the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility;
11 Declarations of NAS concerning Mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement and Transcript of Register,
in substantially the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility;
12 Declarations of OK concerning Mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement and Transcript of Register,
in substantially the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility;
137
13 Declarations of Kanal concerning Mortgages over Stock of Goods and
Motor Vehicles together with Factoring Agreement and Transcript of
Register, in substantially the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility;
14 Declaration relating to transfer of existing mortgages by Norkabel and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
15 Declaration relating to mortgages over new property by Norkabel and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
16 Assignment and Notice of Programme Supply Agreements by Norkabel and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
17 Assignment of General Services Agreement by Norkabel, in the form given
to ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
18 Assignment of Insurance Proceeds by Norkabel, NAS, OK and Kanal, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
19 [Intentionally left blank];
20 A Mortgage Deed for NOK 720,000,000 dated 16 November 1989, under the
name of Askim Antenneservice, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med driftsilbehor) in
▇▇▇▇▇▇▇▇▇▇. ▇, ▇▇▇. ▇▇, ▇▇▇. 47 in the municipality of Askim, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
21 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under
the name of Drammen Kabel-TV, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbehor) in hans
Kjaersgt. 2, gnr. 111, bnr. 248 in the municipality of Drammen, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
22 A Mortgage Deed for NOK 724,000,000 registered 10 March 1992 under the
name of AS KA-TEL, registered over the Mortgagors' Leased Real Estate
and Appurtenances (leierett med drifstilbehor) in gnr. 7613, bnr. 9 in
the municipality of Kongsberg, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
23 A Mortgage Deed for NOK 720,000,000 registered 9 February 1990 under
the name of ▇▇▇▇ ▇▇▇▇▇ TV, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbehor) in Vaerftsgaten
10, gnr. 1, bnr. 2750 in the municipality of ▇▇▇▇, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
24 A Mortgage Deed for NOK 720,000,000 registered 31 January 1990 under
the name of Ostfold Kabelnett A/S, registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbehor) in
Violgt. 8, gnr. 62, bnr. 111 in the municipality of Halden, in the form
given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
25 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under
the name of Teletransmisjon A/S, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbehor) in
Lensmannslia 30, gnr. 50, bnr. 23 parcel A in the municipality of
Asker, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
26 A Mortgage Deed for NOK 720,000,000 registered 13 March 1990 under the
name of West Satellite A/S, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbehor) in ▇▇▇▇▇ ▇▇▇▇▇▇
Asane 39, gnr. 88, bnr. 387, 388, 389, 390 and 391 in the municipality
of Bergen, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
138
27 A Mortgage Deed for NOK 720,000,000 registered 12 September 1990 under
the name of West Satellite A/S, registered over the Mortgagors' Real
Estate and Appurtenances (fast eiendom med drifstilbehor) in
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇. ▇▇, ▇▇▇. 161 in the municipality of Stavanger,
in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
28 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 2076 bnr. 169 in
the municipality of Sarpsborg, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
29 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 15, bnr. 661 in the
municipality of Karmoy, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
30 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 188, bnr. 202 in
the municipality of Bergen, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
31 A Mortgage Deed for NOK 725,000,000 dated 5 November 1993, under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 86, bnr. 33 in the
municipality of Frogn, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
32 A Mortgage Deed for NOK 725,000,000 registered 10 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 148, bnr. 834 and
306 in the municipality of Karmoy, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
33 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 16, bnr. 109 in the
municipality of Stavanger, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
34 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 150 bnr. 1141 in
the municipality of Kristiansand, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
35 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 38, bnr. 158 in the
municipality of Oslo, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
36 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 24 bnr. 4 in the
municipality of Nedre ▇▇▇▇▇, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
37 A Mortgage Deed for NOK 725,000,000 registered 20 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 39, bnr. 137 in the
municipality of Ringerike, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
38 A Mortgage Deed for NOK 725,000,000 registered 23 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor)
139
in gnr. 30 bnr. 230 in the municipality of Skedsmo, in the form given
to ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
39 A Mortgage Deed for NOK 2,080,000 registered 17 October 1995 under the
name of Norkabel, registered over the Mortgagors' Leased Real Estate
and Appurtenances (leierett med driftstilbehor) in gnr. 32, bnr. 279
and 771 in the municipality of Oslo, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
40 A Mortgage Deed for NOK 725,000,000 registered 28 August 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbehor) in gnr. 34, bnr. 14 in the
municipality of Royken, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
41 [Intentionally left blank];
42 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbehor) in gnr. 152 bnr. 1756 in the municipality of
Kristiansand, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
43 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 34 bnr. 14 in the municipality of Royken, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
44 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbehor) in
gnr. 12 bnr. 751 in the municipality of Kristiansand, in the form given
to ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
45 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 188 bnr. 202 in the municipality of Bergen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
46 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 38 bnr. 158 in the municipality of Oslo, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
47 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 134 bnr. 8 in the municipality of Drammen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
48 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 132 bnr. 214 in the municipality of Drammen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
49 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbehor) in
gnr. 117 bnr. 517 in the municipality of Drammen, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
50 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 17 bnr. 3 in the municipality of Drammen, in
140
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
51 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 142 bnr. 6 in the municipality of Lier, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
52 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbehor) gnr. 8651 bnr. 1, 114, 115, 116, 117, 118, 119 and 120
in the municipality of Kongsberg, in the form given to ING Bank N.V.,
in connection with the Existing Norkabel Facility, mutatis mutandis;
53 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbehor) in gnr. 12 bnr. 26 in the municipality of Askim, in the
form given to ING Bank N.V., in connection with the Existing Norkabel
Facility, mutatis mutandis;
54 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbehor) in gnr. 33 bnr. 500 in the municipality of Haugesund,
in the form given to ING Bank N.V., in connection with the Existing
Norkabel Facility, mutatis mutandis;
B Security provided by ▇▇▇▇▇ ▇▇▇▇▇-TV A/S
141
1 Assignment of Receivables by ▇▇▇▇▇, in a form satisfactory to the
Banks.
2 Declaration of ▇▇▇▇▇ concerning mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement, in a form satisfactory to
the Banks.
3 Pledge of Bank Accounts by ▇▇▇▇▇, in a form satisfactory to the Banks.
4 Assignment of Insurance Proceeds by ▇▇▇▇▇, in a form satisfactory to
the Banks.
5 Assignment and Notice of Programme Supply Agreement by ▇▇▇▇▇, in a form
satisfactory to the Banks.
6 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagor's
easement rights to antennas and appurtenances (leierett med
driftstilbehor) in gnr. 75 bnr. 1 in the municipality of Oslo with Oslo
Municipality as the servient tenant, in a form satisfactory to the
Banks.
7 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors'
easement rights to antennas and appurtenances (leierett med
driftstilbehor) in gnr. 98 bnr. 7 in the municipality of Oslo with
Asbj0rn Lie Kristoffersen as the servient tenant, in a form
satisfactory to the Banks.
8 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors
Leased Real Estate and Appurtenances (leierett med driftstilbehor) at
▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ leased pursuant to a Lease Agreement dated 24th June
1997, in a form satisfactory to the Banks.
9 A Declaration of Pledge and Deposit of a new promissory note to be
issued by ▇▇▇▇▇ in the principal amount of NLG75,440,850 which, upon
full repayment of ING Bank B.V., shall replace, supersede and be in
substitution of the unsecured promissory note dated October 26th, 1995
in the principal amount of USD$70,780,401.40 pledged to ING Bank N.V.
in connection with the Existing Nakabel Facility.
142
Schedule 13
-----------
Part B - Norwegian Security Documents (if at
--------------------------------------------
the relevant time the Norwegian Merger has occurred)
----------------------------------------------------
The documents listed in part A of schedule 13 with the following numbers:-
B1 to B5 and B8 and B9 (inclusive); and
A15 to A54 exclusive A17 (inclusive)
each in the form granted to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis, or in a form acceptable to the Banks
together with a declaration by ▇▇▇▇▇ concerning the security documents provided
by Norkabel, Norkabel A/S, Kanal 2 A/S and Oslo Kableanlegg A/S, in favour of
The Toronto-Dominion Bank as Security Trustee, in a form satisfactory to the
Banks: the declaration will be numbered A9.
143
Schedule 14
-----------
Form of Telekabel Note
----------------------
Telekabel Wien Gesellschaft m.b.H
[currency][amount]
Bearer Bond (the "Note")
issued subject to the terms and conditions set out below
Vienna [date]
Terms and Conditions
--------------------
1 Form and denomination
---------------------
This Note is issued in bearer form. The holder of this Note shall be
entitled to exercise any rights hereunder. The nominal amount of this
Note is [currency][amount].
2 Interest
--------
Interest on this Note shall accrue at [rate] per cent. per annum (being
the aggregate of (a) the applicable Margin (which, unless otherwise
agreed by the issuer shall not exceed 2 per cent. per annum), (b) the
Additional Cost (if the nominal amount is denominated in Sterling and
(c) LIBOR).
Interest shall be payable on this Note on [[interim interest payment
date] and on] [date of maturity].
3 Term and final maturity
-----------------------
Subject to clause 4 below, this Note shall be redeemed in full on [date
of maturity].
4 Term and Conditions
-------------------
This Note has been issued on terms and conditions agreed between, inter
alia, United and Philips Communications B.V., Telekabel Wien
Gesellschaft m.b.H., The Toronto-Dominion Bank as Arranger, The
Toronto-Dominion Bank as Agent on behalf of certain Banks and The
Toronto-Dominion Bank as Security Trustee. Unless the context otherwise
requires, the words and expressions defined in such terms and
conditions shall have the same meanings when used in this Note
Signed,
Telekabel Wien Gesellschaft m.b.H.
[Completed under instructions from Telekabel Wien Gesellschaft m.b.H. by the
Agent]
144
The Parent (as a Borrower and a Guarantor)
----------
SIGNED for and on behalf of )
UNITED AND PHILIPS COMMUNICATIONS B.V. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
The Other Borrower
------------------
SIGNED for and on behalf of )
NORKABELGRUPPEN A/S ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
The Guarantors
--------------
SIGNED for and on behalf of )
CABLE NETWORKS AUSTRIA HOLDING B.V. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
TELEKABEL KLAGENFURT G.M.B.H. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
TELEKABEL-FERNSEHNETZ WIENER ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
NEUSTADT/NEUNKIRCHEN )
BETRIEBS-G.M.B.H. by: )
SIGNED for and on behalf of )
TELEKABEL GRAZ G.M.B.H. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
TELEKABEL-FERNSEHNETZ REGION ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
BADEN BETRIEBS-G.M.B.H. by: )
SIGNED for and on behalf of )
RADIO PUBLIC S.A. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
145
by: )
SIGNED for and on behalf of )
▇▇▇▇▇ ▇▇▇▇▇-TV A/S ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
NORKABELGRUPPEN A/S ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
KANAL 2 A/S ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
OSLO KABELANLEGG A/S ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
NORKABEL A/S ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
The Arranger
------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
The Banks
---------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
BARCLAYS BANK PLC ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by: )
146
SIGNED for and on behalf of )
CIBC WOOD GUNDY PLC ) /s/ ▇▇▇▇▇▇ ▇▇▇▇
by: )
SIGNED for and on behalf of )
HSBC INVESTMENT BANK PLC ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
NATIONSBANK N.A. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
THE ROYAL BANK OF SCOTLAND PLC ) /s/ ▇▇▇ ▇▇▇▇▇▇▇
by: )
The Agent
---------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by:
The Security Trustee
--------------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
147
--------
* Norwegian Borrowers only
** Austrian Borrowers only
148
SUPPLEMENTAL AGREEMENT
relating to a
NLG 1,100,000,000 Multi-currency
Revolving Credit Facility
to
UNITED AND PHILIPS COMMUNICATIONS B.V.
AND CERTAIN OF ITS SUBSIDIARIES
guaranteed by
UNITED AND PHILIPS COMMUNICATIONS B.V.
AND CERTAIN OF ITS SUBSIDIARIES
arranged by
THE TORONTO-DOMINION BANK
Agent
THE TORONTO-DOMINION BANK
Security Trustee
THE TORONTO-DOMINION BANK
▇▇▇▇▇▇ ▇▇▇▇
London
CONTENTS
--------
Clause Heading Page
1 Interpretation................................... 1
2 Amendments to the Principal Agreement............ 2
3 Accession by Telekabel Wien...................... 11
4 Waiver........................................... 12
5 Representations and warranties................... 13
6 Fees and Expenses................................ 15
7 Effective Date................................... 15
8 Miscellaneous.................................... 17
9 Governing Law.................................... 17
Schedule
1 Borrowers........................................ 18
2 Guarantors....................................... 19
THIS SUPPLEMENTAL AGREEMENT is dated December, 1997 and made BETWEEN:
(1) UNITED AND PHILIPS COMMUNICATIONS B.V. as Parent;
(2) THE ENTITIES listed in schedule 1 as Borrowers;
(3) THE ENTITIES listed in schedule 2 as Guarantors;
(4) THE TORONTO-DOMINION BANK as Arranger;
(5) THE BANKS under the Principal Agreement referred to below;
(6) THE TORONTO-DOMINION BANK as Agent; and
(7) THE TORONTO-DOMINION BANK as Security Trustee.
WHEREAS:
(A) This Supplemental Agreement is supplemental to an agreement (the "Principal
Agreement") dated 8th October 1997 and made between the same parties (other
than Telekabel Wien and save that certain Obligors incorporated in Norway
have merged into ▇▇▇▇▇ since the date of the Principal Agreement pursuant
to the Norwegian Merger and that ▇▇▇▇▇ has changed its name to ▇▇▇▇▇
Multicom A/S), whereby the Banks agreed to make available to the Borrowers
a revolving credit facility of up to NLG 1,100,000,000 upon the terms and
subject to the conditions therein contained.
(B) The Parent has requested the Banks to amend the Principal Agreement to the
extent set out in this Supplemental Agreement.
NOW IT IS AGREED as follows:
1 Interpretation
--------------
1.1 Definitions in Principal Agreement
----------------------------------
Unless the context otherwise requires and save as mentioned below, words
and expressions defined in the Principal Agreement shall have the same
meanings when used in this Supplemental Agreement. In this Supplemental
Agreement the expression the "Supplemental Agreement" shall mean this
Supplemental Agreement, the expression the "Effective Date" shall have the
meaning given to it in clause 7.1, the expression "Obligors" shall mean
each of the Borrowers listed in schedule 1 and each of the Guarantors
listed in schedule 2 and the expression "Principal Agreement" shall have
the meaning given to it in Recital (A), save that in clause 3 it shall mean
the agreement referred to in Recital (A) as amended by this Supplemental
Agreement.
1.2 Interpretation of Principal Agreement
-------------------------------------
References in the Principal Agreement to "this Agreement" shall, with
effect from the Effective Date and unless the context otherwise requires,
be references to the Principal Agreement as amended by this Supplemental
Agreement and words such as "herein", "hereof", "hereunder", "hereafter",
"hereby" and "hereto", where they appear in the Principal Agreement, shall
be construed accordingly.
1.3 Incorporation of certain references
-----------------------------------
Clauses 1.3, 1.4, 1.5 and 1.6 of the Principal Agreement shall be deemed to
be incorporated in this Supplemental Agreement in full, mutatis mutandis.
2 Amendments to the Principal Agreement
-------------------------------------
2.1 The following clauses of the Principal Agreement shall, with effect from
the Effective Date, be amended as follows:
(a) clause 1.1: by making this clause a new sub-clause (a);
(b) clause 1.1: by adding at the end of sub-clause (a), a new sub-clause
(b) as follows:
"For the purposes of this Agreement the revolving credit facility
shall only be made available to Telekabel Wien by way of loans against
the issue by Telekabel Wien of Telekabel Notes within the overall
limit of the Facility and, without prejudice to the foregoing,
Telekabel Wien shall, subject to the approval of the managing board of
Telekabel Wien of the amount of such borrowing, be permitted to borrow
by way of loans against the issue of Telekabel Notes upon and subject
to the terms of this Agreement, a sum of up to Austrian Schillings
1,700,000,000 or such greater amount as shall be agreed upon by the
supervisory board of Telekabel Wien from time to time. Except (i) in
the possible case of loans to CNA and (ii) loans to other members of
the Restricted Group incorporated in Austria in amounts not exceeding
its Distributable Profits at the time thereof, Telekabel Wien shall
not use such borrowings for the purpose of providing loans to any
member of the Restricted Group or any other person. The possibility
to grant loans does not constitute an obligation to that extent and
any loans may only be granted by Telekabel Wien in accordance with
Austrian law.";
(c) clause 1.2, definition of "Advance": by deleting the existing
definition and replacing it with:
""Advance" means (i)(in the case of each Borrower other than Telekabel
Wien) each borrowing of a portion of the Commitments by a Borrower by
way of advance or (as the context may require) the principal amount of
such borrowing for the time being and/or (ii)(in the case of Telekabel
Wien) each borrowing of a portion of the Commitments by Telekabel
Wien against the issue by Telekabel Wien of a Telekabel Note or (as
the context may require) the principal amount of such Telekabel Note
for the time being outstanding;";
(d) clause 1.2, definition of "Borrowers": by adding, at the end of such
definition, the words: "and provided further that, for the purposes of
this Agreement, the term "Borrower", when used in connection with
Telekabel Wien, shall mean Telekabel Wien as an issuer of Telekabel
Notes in accordance with the terms and conditions of this Agreement.";
(e) clause 1.2, definition of "Bridge Borrower": by deleting the words:
"Cable Network Brabant Zuid-Oost" in the first line thereof, and
replacing them with the word: "Belmarken";
(f) clause 1.2, definition of "Deed of Borrower Accession": by deleting
the existing definition and replacing it with: "means the deed to be
executed and delivered by each entity which is to accede to this
Agreement as a Borrower, each substantially in the form of schedule 11
part A, mutatis mutandis (or such other document as the Banks may
require which has the same, or substantially the same, effect)";
(g) clause 1.2, by inserting a new definition of "Distributable Profits"
as follows:
""Distributable Profits" means, in relation to any entity incorporated
in Austria, the distributable profits of such entity as calculated in
accordance with generally accepted accounting provisions prevailing in
Austria which may be disbursed as dividends and for which a
shareholder's resolution authorising such distribution has been passed
save that, in the case of any member of the Restricted Group
incorporated in Austria only, the Relevant Reserves may not be
included in the calculation of distributable profits of such entity
apart from by way of charges made to the profit and loss account of
such entity in respect of the amortisation of the good-will
represented by such Relevant Reserves and to extinguish existing
negative balances on the profit and loss account of such entity;";
(h) clause 1.2, definition of "Facility": by adding, after the words
"revolving credit facility" in the first line thereof, the words:
"(including, in the case of Telekabel Wien, the facility permitting
Telekabel Wien to borrow the Commitments against the issue of
Telekabel Notes)";
(i) clause 1.2, definition of "Permitted Payments" by deleting the
existing sub-clause (a) and replacing it with the following:
"(a) the proceeds of any equity share capital that has been
subscribed for in the Parent for cash (other than pursuant to a
public offering) on terms that the same is not redeemable or
convertible into any other class of share or loan capital in any
member of the
Restricted Group (in either case prior to the date on which all
amounts outstanding under this Agreement have been irrevocably
paid in full and no amounts are capable of being so outstanding)
and does not carry the right to any dividend or other
distribution (unless the same is not prohibited by the
application of clause 11.2(k)(i)), or on such other terms as are
satisfactory to the Majority Banks";
(j) clause 1.2, by adding a new definition of "Relevant Reserves" as
follows:
""Relevant Reserves" means the non-restricted capital reserves of
members of the Restricted Group incorporated in Austria created in
mid-1995 in connection with the corporate reorganisation of those
entities which reserves will be reduced during any financial year of
such entity by the amount of any amortisation of goodwill, created at
such time as a result of such reorganisation during such financial
year;";
(k) clause 1.2, definition of "▇▇▇▇▇": by adding the words "(now known as
▇▇▇▇▇ Multicom A/S)" after the words "▇▇▇▇▇ ▇▇▇▇▇-TV A/S" where such
words appear in the first and fourth lines of such definition;
(l) clause 1.2, definition of "Loan": by inserting at the end of such
definition the words: "(including, for the avoidance of doubt, the
aggregate principal amount of all Telekabel Notes which are then
issued and outstanding)";
(m) clause 1.2, definition of "Permitted Disposal": by inserting after the
words "of interests it has in" the words ", or of Borrowed Money it is
owed by,";
(n) clause 1.2, definition of "Restructuring": by inserting after the
words "and the Parent in" the words ", and of the Borrowed Money owing
to the Parent by,";
(o) clause 1.2, definition of "Telekabel Notes", by deleting the words
"bearer notes", in the first line thereof and replacing them with the
words "bearer bonds";
(p) clause 1.4(l): by adding, at the end of such clause the words: "and
references to sums payable under this Agreement include sums payable
under all Telekabel Notes";
(q) clause 2.4: by adding a new clause 2.4 as follows:
"Telekabel Wien's interests several
----------------------------------
For the avoidance of doubt, every obligation of Telekabel Wien under
this Agreement is several and it is acknowledged by all parties that
Telekabel Wien, save for its obligations under the Guarantee, is not
liable for any obligations of any other Obligor under this Agreement."
(r) clause 3.6(a): by deleting the words "which form shall permit the
Security Trustee to exercise voting rights in respect of CNA pursuant
to the CNA Pledge after the occurrence of an Event of Default" in the
fourth to sixth lines thereof;
(s) clause 2.1: by adding the words: "and which shall include, for the
avoidance of doubt, the amounts borrowed by Telekabel Wien against the
issue of Telekabel Notes" after the words "Norwegian Loan Amount" in
the fifth line thereof;
(t) clause 3.6(b)(i): by adding the words "(as amended)" after the word
"Agreement", where it appears in the third line thereof and by
replacing the words "24th October, 1997" with the words "12th
December, 1997" where they appear in the fourth line thereof;
(u) clause 3.6(b)(ii): by deleting the existing clause 3.6(b)(ii) and
replacing it with:
"on or before 12th December, 1997 there is delivered to the Agent the
Austrian Security Document and such other documents as the Agent may
require, each duly executed and delivered by Telekabel Wien, together
with such other documents, evidence and legal opinions as the Agent
shall require to ensure that Telekabel Wien becomes a Borrower and a
Guarantor under this Agreement.";
(v) clause 4.9(B): by deleting the references to "30 November 1997" in
fifth line of the first paragraph and third line of the third
paragraph, and inserting "12 December 1997" where deleted;
(w) clause 4.14: by deleting the existing clause 4.14 and replacing it
with:
"4.14 Telekabel Notes
---------------
Each borrowing of a portion of the Commitments to be made by
Telekabel Wien under this Agreement shall be made against the
issue by Telekabel Wien of a Telekabel Note to the Agent.
At the same time as and together with a Drawdown Notice in
connection with any such Advance to be made to Telekabel Wien,
Telekabel Wien shall deliver to the Agent an original Telekabel
Note the details set out in which shall correspond to the
details of the Advance described in such Drawdown Notice.
The Banks shall be under no obligation to make any funds
available to Telekabel Wien unless the Agent shall have
received such Telekabel Note in a form satisfactory to it.
Telekabel Wien hereby authorises the Agent to complete the
provisions in each Telekabel Note relating to the calculation
of interest payable in connection therewith.
On the condition that the relevant Telekabel Note has been duly
completed and executed and provided that the conditions set out
in clause 3 have been satisfied, the Banks shall contribute to
the Advance to be made to Telekabel Wien against the relevant
Telekabel Note in accordance with the provisions of clauses 4.2
to 4.8 (inclusive).
The Agent shall hold each Telekabel Note for and on behalf of
the Banks and shall not part with possession of such Telekabel
Note without the consent of all the Banks. All payments
received by the Agent under any Telekabel Note shall be applied
in accordance with the provisions of clause 8. For the
avoidance of doubt, for the purposes of the Security Trust
Deed, all indebtedness of Telekabel Wien under Telekabel Notes
shall constitute "Senior Indebtedness" (as defined in the
Security Trust Deed).
The Agent shall be entitled to place all Telekabel Notes
deposited with it in any safe deposit, safe or receptacle
selected by the Agent and the Agent shall not be responsible
for any loss incurred in connection with any such deposit.";
(x) clause 6.5(B)(ii) - by amending the word "of" in the penultimate line
to "if";
(y) clause 8.11: by deleting the words "(in the case of Sterling) a 365
day year and (in the case of currencies other than Sterling) a 360 day
year" and replacing them with the words "(in the case of Guilders) a
360 day year or (in the case of any Optional Currency) in accordance
with standard London interbank market practice in respect of
calculating the number of days comprising a year";
(z) clause 9.1(a): by deleting the words: "distributable profits from time
to time of the respective Austrian Guarantor" where they appear in the
fourth and fifth lines thereof and by replacing them with the words:
"Distributable Profits for which CNA shall have given an instruction
in accordance with clause 11.1(af) to the relevant Austrian Guarantor
("Anweisung auf ▇▇▇▇▇▇") stating that its interest in such
Distributable Profits can be the subject of the Guarantee Provided
that the Agent agrees that, without prejudice to any of its other
rights under this Agreement, it shall not make a demand for payment
from Telekabel Wien under the Guarantee until 28 days after the date
that the Agent has notified Telekabel Wien that a Default has occurred
unless at such time (i) Telekabel Wien has repaid all amounts in
respect of the Telekabel Notes, (ii) Telekabel Wien has breached any
of its obligations under this
Agreement or (iii) an Event of Default has otherwise occurred in
relation to Telekabel Wien, in which case such 28 day grace period (or
any unexpired part thereof) shall not apply";
(aa) clause 9.3: by amending the word "of" which appears after the word
"Incapacity" in line 10 to "or" and inserting the word "any" after the
word "constitution of" in the same line;
(bb) clause 10.1: by deleting the words: "jointly and severally" where they
appear in the first line thereof and replacing them with the words:
"in respect of itself and its Subsidiaries which are members of the
Restricted Group";
(cc) clause 10.2: by deleting the words: "jointly and severally" where they
appear in the first line thereof and replacing them with the words "in
respect of itself and its Subsidiaries which are members of the
Restricted Group";
(dd) clause 11.1: by deleting the words: "jointly and severally" where they
appear in the first line thereof and replacing them with the words:
"in respect of itself and its Subsidiaries which are members of the
Restricted Group";
(ee) clause 11.1(w)(v): by adding the words: "(since renamed ▇▇▇▇▇
Telematikk A/S)" after the words "▇▇▇▇▇ Multicom A/S" in the
second/third lines thereof;
(ff) clause 11.1(x): by adding the words at the end of the clause: "For the
avoidance of doubt, it is agreed that Telekabel Wien shall not be
required to enter into a Deed of Subordination in respect of any loan
provided by Telekabel Wien to another member of the Restricted
Group;";
(gg) clause 11.1(z):
(i) by adding the words "directly or indirectly" after the words
"intercompany loans"; and
(ii) by adding the words at the end of the clause: "provided that this
clause shall not require or permit Telekabel Wien to make any
loans to CNA or other members of the Restricted Group
incorporated in Austria except in accordance with Austrian law
and shall not require or permit Telekabel Wien to make any loans
to any person other than CNA or other members of the Restricted
Group incorporated in Austria;";
(hh) clause 11.1: by adding a new clause 11.1(af) as follows:
"(af) Instructions as to debt
-----------------------
(in the case of CNA) (i) ensure that at all times each other
Telekabel Entity has received a valid, irrevocable and
unconditional instruction to assume debt ("Anweisung auf
▇▇▇▇▇▇") stating that CNA's interest in any Distributable
Profits, to the extent that at any time it exceeds the principal
amount of intercompany loans made by that Telekabel Entity to
CNA pursuant to clause 11.1(z) which are outstanding at that
time, is to be owed by such Telekabel Entity pursuant to the
Guarantee, and (ii) ensure that it calls all relevant
shareholders meetings of each Telekabel Entity to vote upon the
amount of Distributable Profits and votes its shares in each
Telekabel Entity so as to ensure that at all times the amount of
Distributable Profits of such Telekabel Entity is the maximum
amount legally possible for such Telekabel Entity."
(ii) clause 11.2: by deleting the words: "jointly and severally" where they
appear in the first line thereof and replacing them with the words "in
respect of itself and its Subsidiaries which are members of the
Restricted Group";
(jj) clause 11.2(g): by inserting the word "and" at the end of clause
11.2(g)(iii) and adding a new clause 11.2(g)(iv) as follows:
"(iv) Telekabel Wien may reclassify into nominal share capital such
of the Relevant Reserves as may be necessary to ensure that the
nominal capital of Telekabel Wien is equal to 337,300,000 Austrian
Schillings.";
(kk) clause 11.2(k)(iii): by adding, at the end of such clause, the words:
"Provided that if at any time any Telekabel Entity makes any payment
of Distributable Profits to the Agent pursuant to any instruction
("Anweisung auf ▇▇▇▇▇▇") given to it by CNA, the amount of
Distributable Profits which are not subject to such instruction may be
paid by such Telekabel Entity to the Relevant Telekabel Person
entitled thereto.";
(ll) proviso to clause 11.2(k): by adding "(A)" after the words "for the
avoidance of doubt" in the first line and at the end of such proviso
the words: "(B) this clause 11.2(k) shall not prevent the performance
of any contracts for the provision of goods and services on bona fide
arms length commercial terms between the Telekabel Entities and any
Relevant Telekabel Person;";
(mm) clause 13.2: by adding at the end of such clause the words:
"Provided that the Agent agrees that, without prejudice to any of its
other rights under this Agreement, it shall not accelerate the due
date of any sums payable by Telekabel Wien until 28 days after the
date that the Agent has given notice to Telekabel Wien that a Default
has occurred unless at such time (i) Telekabel Wien has breached any
of its obligations under this Agreement or (ii) an Event of Default
has otherwise occurred in relation to Telekabel Wien, in which case
such 28 day grace period (or any unexpired part thereof) shall not
apply.";
(nn) clause 19.1(c)(i): by adding at the end of such clause the words:
"and,
in addition, the case of Telekabel Wien only, to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.▇.▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Telefax: 431 1701 211
Attention: Chief Financial Officer";
(oo) by inserting a new clause 19.6 as follows:
"19.6 No breach of Austrian Agreements
--------------------------------
The Banks (i) confirm that they have received copies of the
Austrian Agreements in their form at the date of the first
supplemental agreement to this Agreement, and (ii) further
confirm, and authorise the Agent to confirm, that if they, the
Agent or the Security Trustee become majority shareholders in
CNA following enforcement of the CNA Share Security they will
not, and they will not instruct the Agent or the Security
Trustee to, require CNA to take any action which would to their
knowledge, after taking advice, constitute a breach of the
Austrian Agreements in their form at the date of the first
supplemental agreement to this Agreement if such action would
also constitute a breach of the Austrian Agreements in their
form at the date on which such action is taken. These
confirmations, however, do not constitute (a) a waiver of any
rights the Banks, the Agent or the Security Trustee may have
under the Austrian Agreements as such shareholders or (b) a
guarantee of CNA's obligations under the Austrian Agreements.
The Banks do not have authority to bind any third party who
becomes a shareholder in CNA, whether following enforcement of
the CNA Share Security or otherwise, but the Banks agree that
if they, the Agent or the Security Trustee dispose of the
shares in CNA upon enforcement of the CNA Share Security, or as
shareholders in CNA following enforcement of the CNA Share
Security, otherwise than by means of a public offer, public
sale or public
auction they will make such disposal on terms that the acquirer
gives a confirmation in the same terms as this clause 19.6.";
(pp) schedule 2: by deleting the words "[such Advance to be made by way of
issue of a Telekabel Note]", where they appear in the introductory
paragraph to such Schedule and replacing them with the words "[we wish
to issue a Telekabel Note in the nominal amount of . on . 19. for a
Term of . months]";
(qq) schedule 8, clause 8.2(c) : by deleting the word "nay" and replacing
it with "any" in the second line;
(rr) schedule 3, Part A, Documents listed as conditions precedent in
Austria, items 1, 2 and 3, the square brackets to be deleted and the
date changed from "24th October 1997" to "12th December 1997";
(ss) schedule 13 part A, subheading A: by making the following amendments:
(i) in item 16, by adding the words "Norkabel and" before the word
"NAS" in the first line thereof, (ii) by deleting item 19 and
inserting the words: "[intentionally left blank]" (iii) in item 26, by
replacing the number "490" with the number "390" in the fourth line
thereof, (iv) in item 40, by deleting the words "and 771" in the third
line thereof, (v) by deleting item 41 and inserting the words:
"[intentionally left blank]", (vi) in item 42, by adding the words "to
be" before the word "registered" in the first line thereof, (vii) in
item 44, by deleting the words "to be" where they appear before the
word "registered" in the first line thereof and (viii) in item 49, by
deleting the words "to be" where they appear before the word
"registered" in the first line thereof;
(tt) schedule 13 part A, subheading B: by making the following amendment by
inserting a new item 9:
"9 A Declaration of Pledge and Deposit by the Parent of a new
promissory note to be issued by ▇▇▇▇▇ in the principal amount of
NLG 75,440,850 which, upon the full repayment of the Existing
Norkabel Facility, shall replace, supersede and be in
substitution of the unsecured promissory note dated October 26th,
1995 in the principal amount of $70,780,401.40 pledged to ING
Bank N.V. in connection with the Existing Norkabel Facility".
(uu) schedule 13 part B: (i) by deleting the figure "B8" where it appears
in the second line thereof and replacing it with the figure "B5" and
(ii) by the end of the second line adding "and B8 and B9" and (iii) by
deleting the "A14" where it appears in the third line thereof and
replacing it with the figure "A15" and (iv) by adding at the end of
the third line "exclusive A17" and (v) by adding at the end of such
schedule the words: "together with a declaration by ▇▇▇▇▇ concerning
the security documents provided by Norkabel, Norkabel A/S, Kanal 2 A/S
and Oslo Kableanlegg A/S, in
favour of The Toronto-Dominion Bank as Security Trustee, in a form
satisfactory to the Banks: the declaration will be numbered A9";
(vv) schedule 14 - form of Telekabel Note: (i) by deleting the words
"Bearer Note" where they appear in the third line of the heading
thereof and replacing them with the words "Bearer Bond" and (ii) by
deleting paragraph 4 thereof and replacing it with:
"4 Terms and Conditions
--------------------
This Note has been issued on terms and conditions agreed between,
inter alia, United and Philips Communications B.V., Telekabel
Wien Gesellschaft m.b.H., The Toronto-Dominion Bank as Arranger,
The Toronto-Dominion Bank as Agent on behalf of certain Banks and
The Toronto-Dominion Bank as Security Trustee. Unless the
context otherwise requires, the words and expressions defined in
such terms and conditions shall have the same meanings when used
in this Note."
and (iii), by adding the following words after "per cent. per annum"
in paragraph 2:
"(being the aggregate of (a) the applicable Margin (which, unless
otherwise agreed by the issuer shall not exceed 2 per cent. per annum,
(b) the Additional Cost (if the nominal amount is denominated in
Sterling and (c) LIBOR)"; and
(ww) by changing the following cross-references:
(i) clause 1.2, definition of "Deed of Guarantor Accession": the
reference to clause 9.16 to clause 9.17;
(ii) clause 1.2, definition of "Guaranteed Liabilities": the
reference to clause 9.1 to clause 9.2;
(iii) proviso to clause 11.2(k): the reference to clause 11.2(i) to
clause 11.2(k); and
(iv) schedule 10, part A: references to clause 9.16 to clause 9.17.
3 Accession by Telekabel Wien
---------------------------
3.1 Accession as Borrower
---------------------
Telekabel Wien agrees to become a Borrower (as such definition is to be
amended pursuant to this Supplemental Agreement) under the Principal
Agreement and to be bound by the terms of the Principal Agreement as a
Borrower (as such definition is to be amended pursuant to this Supplemental
Agreement) in accordance with clause 3.6 of the Principal Agreement and to
be bound by the terms of the Security Trust Deed as a Borrower (as such
term is to
be amended pursuant to this Supplemental Agreement) in accordance with
clause 10.6 of the Security Trust Deed. Telekabel Wien shall only have
liabilities as a Borrower to the extent that it has liabilities under the
Telekabel Notes.
3.2 Accession as Guarantor
----------------------
Telekabel Wien agrees to become an Acceding Guarantor under the Principal
Agreement (subject always to the provisions of clause 9.1(a) of the
Principal Agreement) and to be bound by the terms of the Principal
Agreement as an Acceding Guarantor in accordance with clause 9.17 of the
Principal Agreement and to be bound by the terms of the Security Trust Deed
as a Guarantor in accordance with clause 10.16 of the Security Trust Deed.
3.3 Address for notices
-------------------
The address for notices of Telekabel Wien for the purposes of clause 19.1
of the Principal Agreement is:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.▇.▇.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Telefax: 431 1701 211
Attention: Chief Financial Officer
3.4 Telekabel Notes
---------------
The parties to this Supplemental Agreement hereby agree and confirm that
the "terms and conditions" of the Telekabel Notes, as referred to in
paragraph 4 of the pro forma Telekabel Note set out in schedule 14 to the
Principal Agreement, shall be the terms and conditions of the Principal
Agreement as from time to time amended, varied, extended, restated,
refinanced or replaced, mutatis mutandis, and that such terms and
conditions shall be deemed to be incorporated in each Telekabel Note as if
set out explicitly therein. The parties further confirm that, for the
purposes of the Principal Agreement, the amount outstanding under each
Telekabel Note shall be treated as an Advance made under the Principal
Agreement in an amount equal to the nominal amount of such Telekabel Note,
for a Term equal to the term of such Telekabel Note.
4 Waiver
------
4.1 Norway
------
The Banks hereby agree to waive any breach of the Principal Agreement,
including, but not limited to, breaches of clause 4.9(B), clause 11.1(ac)
and clause 11.1(ad) of the Principal Agreement, that may have occurred as a
consequence of the fact that the Norwegian Merger has taken place prior to
the date of this Supplemental Agreement and prior to the date of the
accession of Telekabel Wien, provided that on or before the Effective Date
there shall be delivered the documents and evidence referred to in schedule
3 part C and
schedule 11 part B of the Principal Agreement and provided that on the
Effective Date the Norwegian Borrower shall borrow the Advance referred to
in clause 4.9(B) of the Principal Agreement.
5 Representations and warranties
------------------------------
5.1 Each of the Obligors (in the case of Telekabel Wien, in respect of itself
only) represents and warrants to each of the Banks, the Arranger, the
Security Trustee and the Agent that:
(a) Representations and warranties in Principal Agreement
-----------------------------------------------------
the representations and warranties set out in clause 10.1 of the
Principal Agreement which are to be repeated in accordance with clause
10.3 of the Principal Agreement are true and correct as if made at the
date of this Supplemental Agreement with reference to the facts and
circumstances existing at such date;
(b) Corporate power
---------------
each of the Obligors has power to execute, deliver and perform its
obligations under this Supplemental Agreement (and, in the case of
Telekabel Wien the Austrian Security Document); all necessary
corporate, shareholder and other action has been taken to authorise
the execution, delivery and performance of this Supplemental Agreement
(and, in the case of Telekabel Wien, the Austrian Security Document)
and, in the case of Telekabel Wien, no limitation on the powers of
Telekabel Wien to borrow or to give guarantees will be exceeded as a
result of the borrowings by Telekabel Wien under the Principal
Agreement or the giving of the Guarantee by Telekabel Wien (as limited
by clause 9.1(a));
(c) Binding obligations
-------------------
this Supplemental Agreement (and, in the case of Telekabel Wien, the
Austrian Security Document) constitutes valid and legally binding
obligations of each of the Obligors enforceable in accordance with its
terms, subject to the qualifications contained in the legal opinions
referred to in schedule 3 part A of the Principal Agreement and in
clause 7.1(j) and mandatory provisions of law affecting creditors
rights generally;
(d) No conflict with other obligations
----------------------------------
the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, this Supplemental
Agreement (and, in the case of Telekabel Wien, the Austrian Security
Document) by the Obligors will not (i) contravene any existing
applicable law, statute, rule or regulation or any judgment, decree or
permit to which any of the Obligors is subject, (ii) conflict with, or
result in any breach of any of the
terms of, or constitute a default under, any agreement or other
instrument to which any of the Obligors is a party or is subject or by
which it or any of its property is bound, (iii) contravene or conflict
with any provision of any Obligor's constitutive documents (iv) breach
in any material respect any term of the Licences or Necessary
Authorisations or (v) save for the Encumbrances granted to the
Security Trustee pursuant to the Security Documents, result in the
creation or imposition of or oblige any Obligor to create any
Encumbrance (other than a Permitted Encumbrance) on any member of the
Restricted Group's undertakings, assets, rights or revenues;
(e) Consents obtained
-----------------
every consent, authorisation, licence or approval of, or registration
with or declaration to, governmental or public bodies or authorities
or courts (other than the Licences and the Necessary Authorisations)
required by each of the Obligors to authorise, or required by the
Obligors in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of this Supplemental
Agreement (and, in the case of Telekabel Wien, the Austrian Security
Document) or the performance by each of the Obligors of their
respective obligations under this Supplemental Agreement (and, in the
case of Telekabel Wien, the Austrian Security Document) 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;
(f) No filings required
-------------------
save for the filings, registrations and notarisations referred to in
the legal opinions referred to in clause 7.1(j), it is not necessary
to ensure the legality, validity, enforceability or admissibility in
evidence of this Supplemental Agreement (and, in the case of Telekabel
Wien, the Austrian Security Document) that it or any other instrument
be notarised, filed, recorded, registered or enrolled in any court,
public office or elsewhere in any Relevant Jurisdiction or that any
stamp, registration or similar tax or charge be paid in any Relevant
Jurisdiction on or in relation to this Supplemental Agreement or the
Austrian Security Document and this Supplemental Agreement and the
Austrian Security Document are each in proper form for their
respective enforcement in the courts of each Relevant Jurisdiction.
5.2 Repetition
----------
The representations and warranties in clause 5.1 (other than (a) and (e))
shall be deemed to be repeated by each of the Obligors on and as of each
Drawdown Date and each Maturity Date as if made with reference to the facts
and circumstances existing on each such day.
6 Fees and Expenses
-----------------
6.1 Expenses
--------
The Parent shall pay to the Agent on demand all expenses (including legal
fees) incurred by the Agent, the Security Trustee and the Arranger in
connection with the negotiation, preparation and execution of this
Supplemental Agreement.
6.2 Stamp and other duties (general)
--------------------------------
The Parent shall pay all stamp, documentary, registration or other duties
or Taxes (including any duties or Taxes payable by, or assessed on, the
Banks, the Agent, the Security Trustee or the Arranger) imposed on or in
connection with this Supplemental Agreement or the Facility and shall
indemnify the Agent, the Arranger, the Security Trustee and the Banks
against any liability arising by reason of any delay or omission by the
Parent to pay such duties or Taxes.
6.3 Stamp and other duties (Austrian Security Document)
---------------------------------------------------
The Parent shall pay all stamp, documentary, registration or other duties
or Taxes payable by, or assessed on, Telekabel Wien in connection with the
Austrian Security Document and shall indemnify Telekabel Wien against any
liability arising by reason of any delay or omission by the Parent to pay
such duties or Taxes.
7 Effective Date
--------------
7.1 Conditions precedent documentation
----------------------------------
The amendments to be made to the Principal Agreement by this Supplemental
Agreement shall take effect on and from the date (the "Effective Date") on
which the Agent notifies the Parent and the Banks that the Agent has
received the following documents in form and substance satisfactory to it:
(a) the Austrian Security Document duly executed by Telekabel Wien;
(b) a list of the receivables pledged to the Banks pursuant to the
Austrian Security Document;
(c) written confirmation from the secretary of Telekabel Wien that the
pledge pursuant to the Austrian Security Document has been noted in
the computerised company books of Telekabel Wien;
(d) originals of the notice and acknowledgement of the pledge of bank
account duly signed by Telekabel Wien and acknowledged by the relevant
bank, each in the form set out in the schedule to the Austrian
Security Document;
(e) a copy, certified as a true copy by an Authorised Officer of the
Parent, of resolutions of the Supervisory Boards and/or Boards of
Directors of each
Obligor evidencing approval of this Supplemental Agreement (and, in
the case of Telekabel Wien, the Austrian Security Document and the
Principal Agreement as amended by this Supplemental Agreement) and
authorising its appropriate officers to execute and deliver this
Supplemental Agreement and, in the case of Telekabel Wien, the
Austrian Security Document and to give all notices and take all other
action required by the relevant Obligor thereunder;
(f) specimen signatures of the persons authorised in the resolutions of
the Boards of Directors referred to in clause 7.1(e);
(g) a copy, certified to be a true copy by an Authorised Officer of the
Parent, of the constitutional documents of Telekabel Wien in the
version which has been approved by the shareholders meeting of 3rd
December 1997, together with confirmation that the constitutional
documents of each other Obligor have not changed from those already
delivered to the Agent under the Principal Agreement;
(h) a copy, certified as a true copy by an Authorised Officer of the
Parent, of all consents, authorisations, licences and approvals
required by each of the Obligors to authorise, or required by each of
the Obligors in connection with, the execution, delivery, validity,
enforceability and admissibility in evidence of this Supplemental
Agreement and, in the case of Telekabel Wien, the Austrian Security
Document, and the performance by each of the Obligors of their
respective obligations under this Supplemental Agreement and, in the
case of Telekabel Wien, the Austrian Security Document;
(i) a letter from Telekabel Wien's agents for the receipt of service of
process accepting its appointment;
(j) an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Foramitti Rechtsanwalte, special legal
advisers to the Banks in Austria, an opinion of ▇▇▇▇▇▇ ▇▇▇▇ special
legal advisers to the Banks in England and opinions of special legal
advisers to the Banks in the Netherlands, Belgium, Norway each in a
form approved by the Agent acting on the instructions of the Majority
Banks; and
(k) a copy, certified by the Parent to be a true, complete and up to date
copy of an unconditional and irrevocable instruction from CNA to
Telekabel Wien ("Anweisung auf ▇▇▇▇▇▇") that all Distributable Profits
of Telekabel Wien which are payable to CNA, to the extent that at any
time they exceed the principal amount of intercompany loans made by
Telekabel Wien to CNA pursuant to clause 11.1(z) of the Principal
Agreement which are outstanding at that time, are to be made the
subject of the Guarantee pursuant to clause 9.1(a) of the Principal
Agreement in a form satisfactory to the Agent.
7.2 Further Conditions Precedent
----------------------------
The Agent shall not give notice of the occurrence of the Effective Date
under clause 7.1 (unless expressly instructed in writing by the Majority
Banks to do so) if, on the date on which it would otherwise have done so,
the Agent has received actual knowledge that an Event of Default has
occurred and is continuing or that any of the representations and
warranties in clause 5.1 are untrue or incorrect in any material respect as
at such date as if made on such date with respect to the facts and
circumstances existing at such date.
8 Miscellaneous
-------------
8.1 Continuation of Principal Agreement and the Security Documents
--------------------------------------------------------------
Save as amended by this Supplemental Agreement, the provisions of the
Principal Agreement and the Security Documents shall continue in full force
and effect and the Principal Agreement and this Supplemental Agreement and
each Security Document and this Supplemental Agreement shall be read and
construed as one instrument.
8.2 Counterparts
------------
This Supplemental Agreement may be executed in any number of counterparts
and by the different parties on separate counterparts, each of which when
so executed and delivered shall be an original but all counterparts shall
together constitute one and the same instrument.
9 Governing Law
-------------
This Supplemental Agreement shall be governed by English law.
IN WITNESS whereof the parties hereto have caused this Supplemental Agreement to
be duly executed the day and year first above written.
Schedule 1
----------
Borrowers
---------
Company Country of Incorporation Address
------- ------------------------ -------
United and Philips The Netherlands ▇▇▇▇. Roeskestraat 123
Communications ▇.▇. ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ Multicom A/S Norway Ensjoveien 7,
(formerly known as ▇▇▇▇▇ 0655, Oslo
Kabel-TV A/S)
(as legal successor to
Norkabelgruppen A/S)
Schedule 2
----------
Guarantors
----------
Company Country of Incorporation Address
------- ------------------------ -------
United and Philips The Netherlands ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇ ▇ ▇▇▇ ▇▇▇▇▇
1070 BT
Amsterdam
Cable Networks Austria The Netherlands ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇.▇. ▇ ▇ ▇▇▇ ▇▇▇▇▇
1070 BT
Amsterdam
Telekabel Wien G.m.b.H. Austria ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Telekabel Klagenfurt Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇.▇.▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
Telekabel Graz G.m.b.H. Austria Lazarettgurtel 81,
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Telekabel-Ferneshnetz Austria ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇▇
Neunkirchen Betriebs- Neustadt, Austria
G.m.b.H.
Telekabel-Fernsehnetz Austria ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇- Traiskirchen, Austria
G.m.b.H.
Radio Public S.A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ Multicom A/S Norway Ensjoveien 7, 0655
(formerly known as ▇▇▇▇▇ Oslo, Norway
Kabel-TV A/S)
The Parent (in its capacity as a Borrower
-----------------------------------------
and a Guarantor)
----------------
SIGNED for and on behalf of )
UNITED AND PHILIPS COMMUNICATIONS B.V. )
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
The other Borrowers
-------------------
SIGNED for and on behalf of )
▇▇▇▇▇ MULTICOM A/S )
(formerly known as ▇▇▇▇▇ ▇▇▇▇▇-TV A/S) )
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
SIGNED for and on behalf of )
TELEKABEL WIEN G.M.B.H. )
by: /s/ ANTON VAN VOSKUIJLEN )
The other Guarantors
--------------------
SIGNED for and on behalf of )
CABLE NETWORKS AUSTRIA HOLDING B.V. )
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
SIGNED for and on behalf of )
TELEKABEL WIEN G.M.B.H. )
by: /s/ ANTON VAN VOSKUIJLEN )
SIGNED for and on behalf of )
TELEKABEL KLAGENFURT G.M.B.H. )
by: /s/ ANTON VAN VOSKUIJLEN )
SIGNED for and on behalf of )
TELEKABEL-FERNSEHNETZ WIENER )
NEUSTADT/NEUNKIRCHEN )
BETRIEBS-G.M.B.H. )
by: /s/ ANTON VAN VOSKUIJLEN
SIGNED for and on behalf of )
TELEKABEL GRAZ G.M.B.H. )
by: /s/ ANTON VAN VOSKUIJLEN )
SIGNED for and on behalf of )
TELEKABEL-FERNSEHNETZ REGION )
BADEN BETRIEBS-G.M.B.H. )
by: /s/ ANTON VAN VOSKUIJLEN )
SIGNED for and on behalf of )
RADIO PUBLIC S.A. )
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
SIGNED for and on behalf of )
▇▇▇▇▇ MULTICOM A/S )
(formerly known as ▇▇▇▇▇ ▇▇▇▇▇-TV A/S) )
by: )
The Arranger
------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK )
by: )
The Banks
---------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK )
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
SIGNED for and on behalf of )
BARCLAYS BANK PLC )
by: )
SIGNED for and on behalf of )
CIBC WOOD GUNDY PLC )
by: )
SIGNED for and on behalf of )
HSBC INVESTMENT BANK PLC )
by: )
SIGNED for and on behalf of )
NATIONSBANK N.A. )
by: )
SIGNED for and on behalf of )
THE ROYAL BANK OF SCOTLAND PLC )
by: )
The Agent
---------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK )
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
The Security Trustee
--------------------
SIGNED for and on behalf of )
THE TORONTO-DOMINION BANK )
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )