Senior Facilities Agreement

VIRGIN MEDIA FINANCE PLC as the Parent VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED VIRGIN MEDIA LIMITED VIRGIN MEDIA WHOLESALE LIMITED VMIH SUB LIMITED VIRGIN MEDIA SFA FINANCE LIMITED VIRGIN MEDIA BRISTOL LLC as Original Borrowers VIRGIN MEDIA FINANCE PLC ...

Exhibit 4.1

VIRGIN MEDIA FINANCE PLC

as the Parent

VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED

VIRGIN MEDIA LIMITED

VIRGIN MEDIA WHOLESALE LIMITED

VMIH SUB LIMITED

VIRGIN MEDIA SFA FINANCE LIMITED

VIRGIN MEDIA BRISTOL LLC

as Original Borrowers

VIRGIN MEDIA FINANCE PLC

VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED

VIRGIN MEDIA LIMITED

VIRGIN MEDIA WHOLESALE LIMITED

VMIH SUB LIMITED

VIRGIN MEDIA SFA FINANCE LIMITED

VIRGIN MEDIA SECURED FINANCE PLC

VIRGIN MEDIA BRISTOL LLC

NTL VICTORIA LIMITED

as Original Guarantors

CREDIT SUISSE AG, LONDON BRANCH

as Global Coordinator

CREDIT SUISSE AG, LONDON BRANCH

BANC OF AMERICA SECURITIES LIMITED

BARCLAYS BANK PLC

BNP PARIBAS FORTIS SA/NV

DEUTSCHE BANK AG, LONDON BRANCH

as Bookrunners and Mandated Lead Arrangers

THE BANK OF NOVA SCOTIA

as Facility Agent

DEUTSCHE BANK AG, LONDON BRANCH

as Security Trustee

the Lenders

 

 

SENIOR FACILITIES AGREEMENT

(dated 7 JUNE 2013 as amended on 14 JUNE

2013 and as amended and restated on 17 July

2015 and 30 July 2015, as further amended on 16 December

2016 and as further amended and

restated on 19 April 2017)

 

 


TABLE OF CONTENTS

 

         Page  

1.

 

DEFINITIONS AND INTERPRETATION

     1  

2.

 

THE FACILITIES

     74  

3.

 

CONDITIONS

     82  

4.

 

UTILISATION

     83  

5.

 

DOCUMENTARY CREDITS

     85  

6.

 

ANCILLARY FACILITIES

     92  

7.

 

OPTIONAL CURRENCIES

     99  

8.

 

REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS

     100  

9.

 

REPAYMENT OF TERM FACILITY OUTSTANDINGS

     101  

10.

 

CANCELLATION

     101  

11.

 

VOLUNTARY PREPAYMENT

     104  

12.

 

MANDATORY PREPAYMENT AND CANCELLATION

     105  

13.

 

INTEREST ON REVOLVING FACILITY ADVANCES

     113  

14.

 

INTEREST ON TERM FACILITY ADVANCES

     113  

15.

 

MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES

     115  

16.

 

COMMISSIONS AND FEES

     118  

17.

 

TAXES

     119  

18.

 

INCREASED COSTS

     128  

19.

 

ILLEGALITY

     130  

20.

 

MITIGATION

     131  

21.

 

REPRESENTATIONS AND WARRANTIES

     131  

22.

 

FINANCIAL COVENANT

     139  

23.

 

UNDERTAKINGS

     145  

24.

 

CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS

     201  

25.

 

ACCEDING GROUP COMPANIES

     203  

 

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TABLE OF CONTENTS

 

         Page  

26.

 

EVENTS OF DEFAULT

     206  

27.

 

DEFAULT INTEREST

     213  

28.

 

GUARANTEE AND INDEMNITY

     215  

29.

 

ROLE OF THE FACILITY AGENT, THE ARRANGERS, THE L/C BANKS AND OTHERS

     220  

30.

 

BORROWERS’ INDEMNITIES

     229  

31.

 

CURRENCY OF ACCOUNT

     229  

32.

 

PAYMENTS

     230  

33.

 

SET-OFF

     234  

34.

 

SHARING AMONG THE RELEVANT FINANCE PARTIES

     234  

35.

 

CALCULATIONS AND ACCOUNTS

     236  

36.

 

ASSIGNMENTS AND TRANSFERS

     238  

37.

 

COSTS AND EXPENSES

     250  

38.

 

REMEDIES AND WAIVERS

     252  

39.

 

NOTICES AND DELIVERY OF INFORMATION

     252  

40.

 

ENGLISH LANGUAGE

     255  

41.

 

PARTIAL INVALIDITY

     255  

42.

 

AMENDMENTS

     255  

43.

 

THIRD PARTY RIGHTS

     262  

44.

 

COUNTERPARTS

     262  

45.

 

GOVERNING LAW

     262  

46.

 

JURISDICTION

     262  

47.

 

COMPLETE AGREEMENT

     264  

SCHEDULE 1

     265  
 

Part 1: Lenders and Commitments

     265  
 

Part 2: Lenders Tax Status

     266  

 

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TABLE OF CONTENTS

 

         Page  

SCHEDULE 2

     267  
 

Part 1: The Original Guarantors

     267  
 

Part 2: Members of the Bank Group

     268  

SCHEDULE 3 CONDITIONS PRECEDENT AND SUBSEQUENT

     280  
 

Part 1: Intentionally Left Blank

     280  
 

Part 2: Intentionally Left Blank

     281  
 

Part 3: Form of Officer’s Certificate

     282  

SCHEDULE 4

     284  
 

Part 1: Form of Utilisation Request (Advances)

     284  
 

Part 2: Form of Utilisation Request (Documentary Credits)

     285  

SCHEDULE 5 FORM OF TRANSFER DEED

     287  

SCHEDULE 6 FORM OF TRANSFER AGREEMENT

     292  

SCHEDULE 7 FORM OF ACCESSION NOTICE

     300  

SCHEDULE 8 ACCESSION DOCUMENTS

     305  

SCHEDULE 9

     307  
 

Part 1: Form of Additional Facility Accession Deed

     307  
 

Part 2: Conditions Precedent to Additional Facility Utilisation

     312  
 

Part 3: Form of Additional Facility Officer’s Certificate

     313  

SCHEDULE 10 ORIGINAL SECURITY DOCUMENTS

     314  

SCHEDULE 11

     316  
 

Part 1: Existing Security Interests

     316  
 

Part 2: Existing Loans

     327  

SCHEDULE 12

     328  
 

Part 1: - Existing Financial Indebtedness

     328  
 

Part 2: Existing Documentary Credits

     329  
 

Part 3: Existing Vendor Financing Arrangements

     330  

SCHEDULE 13 EXISTING HEDGE COUNTERPARTIES

     331  

SCHEDULE 14 FORM OF L/C BANK ACCESSION CERTIFICATE

     332  

 

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TABLE OF CONTENTS

 

         Page  

SCHEDULE 15 FORM OF DOCUMENTARY CREDIT

     333  

SCHEDULE 16 FORM OF INCREASE CONFIRMATION

     336  

SCHEDULE 17 FORM OF RESIGNATION LETTER

     339  

SCHEDULE 18 TIMETABLE

     340  

 

iv


THIS AGREEMENT is dated 7 JUNE 2013 as amended on 14 June 2013 and as amended and restated on 17 July 2015 and 30 July 2015, as further amended on 16 December 2016 and as further amended and restated on 19 April 2017.

BETWEEN:

 

(1) VIRGIN MEDIA FINANCE PLC (the “Parent”);

 

(2) VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED, VIRGIN MEDIA LIMITED, VIRGIN MEDIA WHOLESALE LIMITED, VMIH SUB LIMITED, VIRGIN MEDIA SFA FINANCE LIMITED AND VIRGIN MEDIA BRISTOL LLC (the “Original Borrowers”);

 

(3) VIRGIN MEDIA FINANCE PLC, VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED, VIRGIN MEDIA LIMITED, VIRGIN MEDIA WHOLESALE LIMITED, VMIH SUB LIMITED, VIRGIN MEDIA SFA FINANCE LIMITED, VIRGIN MEDIA SECURED FINANCE PLC VIRGIN MEDIA BRISTOL LLC AND NTL VICTORIA LIMITED (“the Original Guarantors”);

 

(4) CREDIT SUISSE AG, LONDON BRANCH (the “Global Coordinator”);

 

(5) CREDIT SUISSE AG, LONDON BRANCH, BANC OF AMERICA SECURITIES LIMITED, BARCLAYS BANK PLC, BNP PARIBAS FORTIS SA/NV AND DEUTSCHE BANK AG, LONDON BRANCH (each a ”Bookrunner” and together, the “Bookrunners”);

 

(6) CREDIT SUISSE AG, LONDON BRANCH, BANC OF AMERICA SECURITIES LIMITED, BARCLAYS BANK PLC, BNP PARIBAS FORTIS SA/NV AND DEUTSCHE BANK AG, LONDON BRANCH (each a “Mandated Lead Arranger” and together, the “Mandated Lead Arrangers”);

 

(7) THE BANK OF NOVA SCOTIA (as agent for and on behalf of the Relevant Finance Parties, the “Facility Agent”);

 

(8) DEUTSCHE BANK AG, LONDON BRANCH (as security trustee for and on behalf of the Relevant Finance Parties, the “Security Trustee”); and

 

(9) THE LENDERS (as defined below).

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

80% Security Test” means the requirement that, save as otherwise provided in Clause 23.26 (Further Assurance), members of the Bank Group generating not less than 80% of EBITDA of the Bank Group (excluding for the purposes of this calculation, any EBITDA attributable to any Joint Venture) have acceded as Guarantors to this Agreement and, in each case, granted Security (or procured the granting of Security) pursuant to the Security Documents over:

 

  (a) prior to the Asset Security Release Date, all or substantially all of the assets of the Guarantors; and

 

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  (b) on or after the Asset Security Release Date:

 

  (i) all of the shares in the Obligors held by any member of the Bank Group; and

 

  (ii) all of the shares in the Company and each of its immediate Subsidiaries;

 

  (iii) all of the rights of the relevant creditors in relation to Subordinated Funding; and

 

  (iv) Security over loans made by Virgin Media Finance PLC, Virgin Media Communications Limited and the Company and each of their immediate Subsidiaries to any other member of the Bank Group,

as tested by reference to each set of annual financial information relating to the Bank Group delivered to the Facility Agent pursuant to Clause 23.2(a)(ii) (Financial information).

Acceding Borrower” means a member of the Bank Group or any Permitted Affiliate Parent which has complied with the requirements of Clause 25.2 (Acceding Borrowers).

Acceding Group Company” means an Acceding Borrower or an Acceding Guarantor, as the context may require.

Acceding Guarantor” means any member of the Bank Group or any Permitted Affiliate Parent which has complied with the requirements of Clause 25.3 (Acceding Guarantors).

Acceding Obligors” means the Acceding Borrowers and the Acceding Guarantors.

Acceleration Date” means the date on which a written notice has been served under Clause 26.19 (Acceleration).

Acceptable Bank” means:

 

  (a) a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB+ or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa1 or higher by Moody’s Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or

 

  (b) any other bank or financial institution approved by the Facility Agent (in consultation with the Company).

Accession Notice” means a duly completed notice of accession substantially in the form of Schedule 7 (Form of Accession Notice) (including any applicable limitation language) with such changes as may be agreed between the Company and the Facility Agent from time to time.

 

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Accounting Period” in relation to any person means any period of approximately three months or one year, as the context requires, for which accounts of such person are required to be delivered pursuant to this Agreement.

Accrued Amounts” has the meaning given to such term in Clause 36.17(a) (Pro rata Interest Settlement).

Acquisition” means the acquisition, whether by one or a series of transactions, (including, without limitation, by purchase, subscription or otherwise) of all or any part of the share capital or equivalent of any company or other person (including, without limitation, any partnership or joint venture) or any asset or assets of any company or other person (including, without limitation, any partnership or joint venture) constituting a business or separate line of business of that company or other person.

Acquisition Agreement” means the merger agreement between, amongst others, Liberty Global Inc. and certain of its Subsidiaries and Virgin Media Inc. relating to the acquisition of the Virgin Media Inc. group and dated as of 5 February 2013.

Acquisition Cost” means, in relation to an Acquisition, the value of the consideration for that Acquisition at the time of completion of that Acquisition and for this purpose:

 

  (a) the value at the time of completion of the Acquisition of any consideration to be paid or delivered after the time of completion of the Acquisition will be determined in accordance with the Relevant Accounting Principles;

 

  (b) if the entity acquired becomes a member of the Bank Group as a result of the Acquisition, the aggregate principal amount of Financial Indebtedness of any entity acquired outstanding at the time of completion of the Acquisition (including without limitation any Lending Transaction (as defined in Clause 23.15(g) (Loans and guarantees) made by a member of the Bank Group in connection with the relevant Acquisition) will be counted as part of the consideration for that Acquisition;

 

  (c) if the entity acquired does not become a member of the Bank Group as a result of the Acquisition, the aggregate principal amount of Financial Indebtedness of the entity acquired at the time of completion of the Acquisition will be counted as part of the consideration for that Acquisition to the extent of the aggregate principal amount of the payment and repayment obligations in respect of such Financial Indebtedness assumed or guaranteed by any member of the Bank Group; and

 

  (d) subject to paragraphs (a), (b) and (c) above, the value at the time of completion of the Acquisition of any non-cash consideration will be determined in accordance with the Relevant Accounting Principles, expressed in Sterling, if required, using the Facility Agent’s Spot Rate of Exchange on the date of completion of the Acquisition.

 

3


Act” means the Companies Act 2006 (as amended).

Additional Facilities Cap” has the meaning given to such term in paragraph (a)(v) of Clause 2.5 (Additional Facilities).

Additional Facility” has the meaning given to such term in Clause 2.5 (Additional Facilities).

Additional Facility Accession Deed” means an agreement substantially in the form of Part 1 of Schedule 9 (Form of Additional Facility Accession Deed) with such changes as may be agreed between the Company and the relevant Lender.

Additional Facility Availability Period” means, in relation to an Additional Facility, the availability period specified in the Additional Facility Accession Deed for that Additional Facility.

Additional Facility Borrower” means any Borrower which becomes a Borrower under any Additional Facility.

Additional Facility Commencement Date” means, in relation to an Additional Facility, the effective date of that Additional Facility as specified in the relevant Additional Facility Accession Deed.

Additional Facility Lender” means a person which becomes a Lender under any Additional Facility in accordance with the terms of this Agreement.

Additional Facility Margin” means, in relation to any Additional Facility, the margin specified in and, if applicable, adjusted in accordance with the relevant Additional Facility Accession Deed.

Additional Facility Outstandings” means, at any time, the aggregate principal amount of any Additional Facility Advances outstanding under this Agreement and of each Additional Facility Lender’s participation in an Outstanding L/C Amount.

Additional High Yield Notes” means any notes where the incurrence of any Financial Indebtedness under such notes would not result in the Total Net Debt to Annualised EBITDA ratio (after giving pro forma effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving effect to any movement of cash out of the Bank Group since such date pursuant to any Permitted Payments) exceeding 5.50:1 and:

 

  (a) that are issued by the Parent or any Permitted Affiliate Holdco after the date of this Agreement pursuant to an Additional High Yield Offering;

 

  (b) [Reserved];

 

  (c) [Reserved];

 

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  (d) that are not secured by any Security Interest over any shares in any member of the Bank Group, any asset of any member of the Bank Group or any rights of any creditor in relation to any Subordinated Funding;

 

  (e) that, if guaranteed, are not guaranteed by any member of the Bank Group other than the Company and/or Intermediate Holdco, provided that any such guarantee or guarantees so provided are (i) granted on subordination and release terms substantially the same as the existing guarantees of the Company and Intermediate Holdco in favour of the Existing High Yield Notes and (ii) subject to the terms of the HYD Intercreditor Agreement or a Supplemental HYD Intercreditor Agreement; and

 

  (f) that are designated as “Additional High Yield Notes” and “Parent Debt” by written notice from the Company to the Facility Agent and the Security Trustee by the date when the consolidated financial statements are due to be provided pursuant to Clause 23.2 (Financial information) for the first full Financial Quarter after the issuance of the relevant notes.

Additional High Yield Offering” means one or more offerings of the Additional High Yield Notes on a registration statement filed with the SEC or pursuant to an exemption from registration under the United States Securities Act of 1933, as amended, including pursuant to Rule 144A and/or Regulation S under the United States Securities Act of 1933, as amended.

Additional Senior Secured Notes” means any notes where the incurrence of any Financial Indebtedness under such notes would not result in the ratios (giving effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to any Permitted Payments) exceeding (i) a Senior Net Debt to Annualised EBITDA ratio of 4.50:1, (ii) a Total Net Debt to Annualised EBITDA ratio of 5.50:1 or (iii) where the incurrence of any Financial Indebtedness under such notes would otherwise be Permitted Financial Indebtedness (other than to the extent that such Financial Indebtedness is incurred by way of Senior Secured Notes pursuant to sub-paragraph (xv)(D) of the definition of Permitted Financial Indebtedness) and:

 

  (a) that are issued by the Parent, any Permitted Affiliate Parent, the Company, a Borrower or any other SSN Finance Subsidiary after the Closing Date;

 

  (b) [Reserved];

 

  (c) [Reserved];

 

  (d) in respect of which some or all of the Obligors have granted security and guarantees on the terms specified in the Group Intercreditor Agreement and substantially the same as to the Existing Senior Secured Notes; and

 

  (e)

that are designated as (i) “Senior Secured Notes” by written notice from the Company to the Facility Agent, (ii) “New Senior Liabilities” under the Group Intercreditor Agreement by written notice from the Company to the Facility Agent and the Security Trustee, and (iii) “Designated Senior Liabilities” under the HYD Intercreditor Agreement, in each case, by the date when the

 

5


  consolidated financial statements are due to be provided pursuant to Clause 23.2 (Financial information) for the first full Financial Quarter after the issuance of the relevant notes.

Advance” means:

 

  (a) when designated “Revolving Facility”, the principal amount of each advance made or to be made under the Revolving Facility (but excluding for the purposes of this definition, any utilisation of the Revolving Facility by way of Ancillary Facility or Documentary Credit);

 

  (b) when designated “Additional Facility”, the principal amount of each advance made or to be made under an Additional Facility or arising in respect of an Additional Facility under Clause 14.3 (Consolidation and Division of Term Facility Advances) (but excluding for the purposes of this definition, any utilisation of an Additional Facility by way of Ancillary Facility or Documentary Credit); or

 

  (c) without any such designation, the “Additional Facility Advance” and/or the “Revolving Facility Advance”, as the context requires,

in each case as from time to time reduced by repayment or prepayment.

Affected Documentary Credit” has the meaning given to such term in Clause 19.2 (Illegality in Relation to an L/C Bank).

Affiliate” means, in respect of a person, a direct or indirect common Subsidiary or Holding Company of that person, or any other person which is under common control with that person (and for this purpose, control has the meaning given to it in section 416 of the Income and Corporation Taxes Act 1988 in force as at the Signing Date).

Agent” means the Facility Agent or the Security Trustee (or both), as the context requires.

All3Media Intercreditor Agreement” means the intercreditor agreement originally dated 28 September 2006 between, among others, The Royal Bank of Scotland plc as Senior Agent and Security Agent and All3Media Capital Limited, All3Media Intermediate Limited and All3Media Finance Limited as Effective Date Debtors (each as defined therein).

Alternative Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Alternative Reference Banks:

 

  (a) in relation to LIBOR:

 

  (i) (other than where paragraph (ii) below applies) as the rate at which the relevant Alternative Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or

 

6


  (ii) if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or

 

  (b) in relation to EURIBOR:

 

  (i) (other than where paragraph (ii) below applies) as the rate at which the relevant Alternative Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or

 

  (ii) if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.

Alternative Reference Banks” means, in relation to an Advance in a currency other than Sterling, the principal London offices of Bank of America, N.A. and Credit Suisse AG, London Branch, in relation to an Advance in Sterling, the principal office in London of Credit Suisse AG, London Branch or such other banks as may be appointed by the Facility Agent with the consent of the Company.

Ancillary Facility” means any:

 

  (a) overdraft, automated payment, cheque drawing or other current account facility;

 

  (b) forward foreign exchange facility;

 

  (c) derivatives facility;

 

  (d) a short term loan facility;

 

  (e) guarantee, bond issuance, documentary or stand-by letter of credit facility;

 

  (f) performance bond facility; and/or

 

  (g) such other facility or financial accommodation as may be required in connection with the Business and which is agreed in writing between the relevant Borrower and the relevant Ancillary Facility Lender.

Ancillary Facility Commitment” means, in relation to an Ancillary Facility Lender at any time, and save as otherwise provided in this Agreement, the maximum Sterling Amount to be made available under an Ancillary Facility granted by it, to the extent not cancelled or reduced or transferred pursuant to the terms of such Ancillary Facility or under this Agreement.

Ancillary Facility Documents” means the documents and other instruments pursuant to which an Ancillary Facility is made available and the Ancillary Facility Outstandings under it are evidenced.

 

7


Ancillary Facility Lender” means any Lender which has notified the Facility Agent that it has agreed to its nomination in a Conversion Notice to be an Ancillary Facility Lender in respect of an Ancillary Facility granted pursuant to the terms of this Agreement.

Ancillary Facility Outstandings” means (without double counting), at any time with respect to an Ancillary Facility Lender and each Ancillary Facility provided by it, the aggregate of:

 

  (a) all amounts of principal then outstanding under any overdraft, automated payment, cheque drawing or other current account facility (determined in accordance with the applicable terms) as at such time (net of any Available Credit Balance); and

 

  (b) in respect of any other facility or financial accommodation, such other amount as fairly represents the aggregate potential exposure of that Ancillary Facility Lender with respect to it under its Ancillary Facility, as reasonably determined by that Ancillary Facility Lender from time to time in accordance with its usual banking practices for facilities or accommodation of the relevant type (including without limitation, the calculation of exposure under any derivatives facility by reference to the mark-to-market valuation of such transaction at the relevant time).

Ancillary Facility Termination Date” has the meaning given to such term in Clause 6.1(g) (Utilisation of Ancillary Facilities).

Annualised EBITDA” has the meaning given to it in Clause 22.1 (Financial definitions).

Anti-Terrorism Law” means each of:

 

  (a) Executive Order No. 13224 on Terrorist Financing - Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism issued 23 September 2001, as amended by Order 13268 (as so amended, the Executive Order);

 

  (b) the Patriot Act;

 

  (c) the Money Laundering Control Act of 1986 18 U.S.C, section 1956; and

 

  (d) any similar law enacted in the United States subsequent to the date of this Agreement.

Arrangers” means the Global Coordinator and the Mandated Lead Arrangers and “Arranger” means any of them.

Asset Passthrough” means a series of transactions between the Borrower Holdco, one or more members of the Bank Group and an Asset Transferring Party where:

 

  (a) in the case of an asset being transferred by the Borrower Holdco to the Asset Transferring Party that asset:

 

  (i) is first transferred by the Borrower Holdco to a member of the Bank Group; and

 

8


  (ii) may then be transferred between various members of the Bank Group, and is finally transferred (insofar as such transaction relates to the Bank Group) to an Asset Transferring Party; or

 

  (b) in the case of an asset being transferred by an Asset Transferring Party to the Borrower Holdco, that asset:

 

  (i) is first transferred by that Asset Transferring Party to a member of the Bank Group; and

 

  (ii) may then be transferred between various members of the Bank Group, and is finally transferred (insofar as such transaction relates to the Bank Group) to the Borrower Holdco,

and where the purpose of each such asset transfer is, in the case of an Asset Passthrough of the type described in paragraph (a) above, to enable the Borrower Holdco to indirectly transfer assets (other than cash) to that Asset Transferring Party and, in the case of an Asset Passthrough of the type described in paragraph (b) above, is to enable an Asset Transferring Party to indirectly transfer assets (other than cash) to the Borrower Holdco, in either case, by way of transfers of those assets to and from (and, if necessary, between) one or more members of the Bank Group in such a manner as to be neutral to the Bank Group taken as a whole provided that:

 

  (c) the consideration payable (if any) by the first member of the Bank Group to acquire such assets comprises either (i) cash funded or to be funded directly or indirectly by a payment from (in the case of an Asset Passthrough of the type described in paragraph (a) above) the Asset Transferring Party and (in the case of an Asset Passthrough of the type described in paragraph (b) above) the Borrower Holdco, in either case, in connection with that series of transactions or (ii) Subordinated Funding or (iii) the issue of one or more securities;

 

  (d) the consideration payable by (in the case of an Asset Passthrough of the type described in paragraph (a) above) the Asset Transferring Party is equal to the consideration received or receivable by the Borrower Holdco and (in the case of an Asset Passthrough of the type described in paragraph (b) above) by the Borrower Holdco is equal to the consideration received or receivable by the Asset Transferring Party (and for this purpose, a security issued by one company shall constitute equal consideration to a security issued by another company where such securities have been issued on substantially the same terms and subject to the same conditions);

 

  (e) all of the transactions comprising such a series of transactions (from and including the transfer of the assets by the Borrower Holdco to and including the acquisition of those assets by the Asset Transferring Party or vice versa) are completed within two Business Days; and

 

9


  (f) upon completion of all of the transactions comprising such a series of transactions, no person (other than another member of the Bank Group) has any recourse to any member of the Bank Group and no member of the Bank Group which is not an Obligor may have any recourse to an Obligor, in each case in relation to such a series of transactions (other than in respect of (i) the Subordinated Funding or any rights and obligations under the securities, in each case, mentioned in paragraph ((c) above and (ii) covenants as to title provided, in the case of an Asset Passthrough of the type described in paragraph (a) above, in favour of the Asset Transferring Party on the same terms as such covenants were provided by the Borrower Holdco in respect of the relevant assets and, in the case of an Asset Passthrough of the type described in paragraph (b) above, in favour of the Borrower Holdco on the same terms as such covenants were provided by the Asset Transferring Party in respect of the relevant assets).

Asset Securitisation Subsidiary” means any Subsidiary of the Company or any Subsidiary of any Permitted Affiliate Parent or any other member of the Bank Group, as applicable engaged solely in the business of effecting or facilitating any asset securitisation programme or programmes or one or more receivables factoring transactions.

Asset Security Release Date” means the date on which the Security (other than any Security referred to in paragraph (b) of the definition of “80% Security Test”) is released in accordance with Clause 42.8 (Asset Security Release).

Asset Transferring Party” means the member of the Wider Group (or any person in which a member of the Bank Group owns an interest but which is not a member of the Wider Group), other than a member of the Bank Group (except where the asset being transferred is a security where such member of the Wider Group may be a member of the Bank Group), who is the initial transferor or final transferee in respect of a transfer to or from the Borrower Holdco, as the case may be, through one or more members of the Bank Group.

Associated Company” of a person means:

 

  (a) any other person which is directly or indirectly Controlled by, under common Control with or Controlling such person; or

 

  (b) 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 is owned beneficially and/or legally directly or indirectly by such person.

In this definition:

Control means the power of a person:

 

  (a) by means of the holding of shares or the possession of voting power in or in relation to any other person; or

 

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  (b) by virtue of any powers conferred by the articles of association or other documents regulating any other person,

to direct or cause the direction of the management and policies of that other person,

and “Controlled” and “Controlling” have a corresponding meaning.

Auditors” means a leading firm of independent and internationally recognised accountants appointed by the Reporting Entity as its auditors for the purposes of preparing the audited consolidated accounts of the Reporting Entity.

Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

Availability Period” means the period from and including the Signing Date to and including:

 

  (a) in respect of each Term Facility (other than any Additional Facility), the date falling 60 days from the Closing Date; and

 

  (b) in respect of the Revolving Facility, the date falling 30 days prior to the Final Maturity Date.

Available Additional Facility Commitment” means, in relation to a Lender and an Additional Facility, at any time and save as otherwise provided in this Agreement, its Additional Facility Commitment in relation to that Additional Facility at such time less the Sterling Amount of its share of the Additional Facility Advances made under that Additional Facility, adjusted to take account of:

 

  (a) any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any Additional Facility Commitment in relation to that Additional Facility, in each case, pursuant to the terms of this Agreement; and

 

  (b) in the case of any proposed Utilisation, the Sterling Amount of its share of (i) such Additional Facility Advance and/or Documentary Credit which pursuant to any other Utilisation Request is to be made, or as the case may be, issued under the Additional Facility, (ii) any Additional Facility Advance in respect of any Additional Facility which is a revolving facility which is due to be repaid or expire and (iii) any Additional Facility Advance and/or Documentary Credit issued under the Additional Facility which is due to be repaid or expire (as the case may be), in each case, on or before the proposed Utilisation Date,

provided always that such amount shall not be less than zero.

Available Ancillary Facility Commitment” means, in relation to an Ancillary Facility Lender and an Ancillary Facility granted by it at any time, and save as otherwise provided in this Agreement or in the applicable Ancillary Facility Documents, its Ancillary Facility Commitment at such time, less the Sterling Amount of the relevant Ancillary Facility Outstandings at such time, provided always that such amount shall not be less than zero.

 

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Available Commitment” means, in relation to a Lender, the aggregate amount of its Available Additional Facility Commitments, its Available Revolving Facility Commitments and its Available Ancillary Facility Commitments, or, in the context of a particular Facility, its Available Additional Facility Commitments, its Available Revolving Facility Commitments or its Available Ancillary Facility Commitments, as the context may require.

Available Credit Balance” means, in relation to an Ancillary Facility, credit balances on any account of any Borrower of that Ancillary Facility with the Ancillary Facility Lender making available that Ancillary Facility to the extent that those credit balances are freely available to be set off by that Ancillary Facility Lender against liabilities owed to it by that Borrower under that Ancillary Facility.

Available Facility” means, in relation to a Facility, at any time, the aggregate amount of the Available Commitments in respect of that Facility at that time.

Available Revolving Facility” means, at any time, the aggregate amount of the Available Revolving Facility Commitments.

Available Revolving Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its Revolving Facility Commitment at such time, less the Sterling Amount of its share of the Revolving Facility Outstandings, adjusted to take account of:

 

  (a) any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any Revolving Facility Commitment, in each case, pursuant to the terms of this Agreement; and

 

  (b) in the case of any proposed Utilisation, the Sterling Amount of its share of (i) such Revolving Facility Advance and/or Documentary Credit which pursuant to any other Utilisation Request is to be made, or as the case may be, issued under the Revolving Facility, and (ii) any Revolving Facility Advance and/or Documentary Credit issued under the Revolving Facility which is due to be repaid or expire (as the case may be), in each case, on or before the proposed Utilisation Date,

provided always that such amount shall not be less than zero.

Bank Group” means:

 

  (a) for the purposes of the definition of “Bank Group Consolidated Revenues”, Clause 23.2 (Financial information), Clause 22 (Financial Covenant) and any other provisions of this Agreement using the terms defined in Clause 22 (Financial Covenant):

 

  (i) the Company and any Permitted Affiliate Parent;

 

  (ii) each of the Company’s and any Permitted Affiliate Parent’s other direct and indirect Subsidiaries from time to time, excluding the Bank Group Excluded Subsidiaries; and

 

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  (iii) without prejudice to paragraph (ii) above, each of the direct and indirect Subsidiaries of Virgin Media Communications, excluding any Subsidiary thereof which has a direct or indirect interest in the Company and excluding the Bank Group Excluded Subsidiaries;

 

  (b) for the purposes of the definition of “Hedge Obligor” in the HYD Intercreditor Agreement:

 

  (i) the Parent, any Permitted Affiliate Parent and each of their direct and indirect Subsidiaries from time to time, other than the Bank Group Excluded Subsidiaries; and

 

  (ii) each of the direct and indirect Subsidiaries of Virgin Media Communications to the extent not already included by virtue of paragraph (i) above, excluding any Subsidiary thereof which has a direct or indirect interest in the Company and excluding the Bank Group Excluded Subsidiaries; and

 

  (c) for all other purposes including for the purposes of the definition of “Bank Group” under the Group Intercreditor Agreement:

 

  (i) the Company, any Permitted Affiliate Parent and each of their direct and indirect Subsidiaries from time to time, other than the Bank Group Excluded Subsidiaries; and

 

  (ii) each of the direct and indirect Subsidiaries from time to time of Virgin Media Communications to the extent not already included by virtue of paragraph (i) above, excluding any Subsidiary thereof which has a direct or indirect interest in the Company and excluding the Bank Group Excluded Subsidiaries,

but excluding for all purposes under paragraphs (a), (b) and (c) above any Permitted Joint Ventures and provided that at any time after a Group Redesignation Notice has been delivered to the Facility Agent in accordance with Clause 23.36 (Group Redesignation), the “Bank Group” for all purposes under paragraphs (a), (b) and (c) shall also include each New Group Topco and its Subsidiaries, other than Bank Group Excluded Subsidiaries.

For information purposes only, the members of the Bank Group as at the Signing Date for the purposes of paragraph (c) above are listed in Part 2 of Schedule 2 (Members of the Bank Group).

Bank Group Consolidated Revenues” means, in respect of any period, the consolidated revenues for the Bank Group for that period as evidenced by the financial information provided in respect of that period pursuant to Clause 23.2 (Financial information).

Bank Group Excluded Subsidiary” means:

 

  (a) any Subsidiary of (i) the Company, (ii) any Permitted Affiliate Parent (iii) any New Group Topco or (iv) Virgin Media Communications, in each case, which is a Dormant Subsidiary and which is not a Guarantor;

 

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  (b) any Unrestricted Subsidiary;

 

  (c) NTL Fawnspring Limited;

 

  (d) any Subsidiary of (i) the Company, (ii) any Permitted Affiliate Parent (iii) any New Group Topco or (iv) any Subsidiary of Virgin Media Communications, in each case, which is a Project Company;

 

  (e) any Asset Securitisation Subsidiary;

 

  (f) any company which becomes a Subsidiary of the Parent, a Subsidiary of any Permitted Affiliate Parent or a Subsidiary of any Virgin Media Communications in each case, after the Signing Date pursuant to an Asset Passthrough; and

 

  (g) any company which becomes a Subsidiary of any New Group Topco pursuant to an Asset Passthrough,

provided that any Bank Group Excluded Subsidiary may, at the election of the Company and upon not less than 10 Business Days prior written notice to the Facility Agent, cease to be a Bank Group Excluded Subsidiary and become a member of the Bank Group.

Bank Group Reconciliation” means an unaudited schedule to any financial statements of the Reporting Entity delivered in accordance with Clause 23.2 (Financial Information), demonstrating the necessary adjustments made to the financial statements of the Reporting Entity to derive financial information applicable to the Bank Group prepared in accordance with the Relevant Accounting Principles.

Bank Levy” means the bank levy which is imposed under section 73 of, and schedule 19 to, the Finance Act 2011 (the “UK Bank Levy”) and any levy or Tax of an equivalent nature imposed in any jurisdiction in a similar context or for a similar reason to that in and/or which the UK Bank Levy has been imposed by reference to the equity and liability of a financial institution or other person carrying out financial transactions.

Barclays Intercreditor Agreement” has the meaning given to such term in the Group Intercreditor Agreement.

Basel II” has the meaning given to such term in Clause 18.3(a)(v) (Exceptions).

Beneficiary” means a beneficiary in respect of a Documentary Credit.

Borrowers” means the Original Borrowers and any Acceding Borrower.

Borrower Holdco” means a direct Holding Company of a member of the Bank Group which is not a member of the Bank Group.

 

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Break Costs” means:

 

  (a) the amount (if any) by which:

 

  (i) the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in an Advance or Unpaid Sum to the last day of the current Interest Period or Term in respect of that Advance or Unpaid Sum, had the amount so received been paid on the last day of that Interest Period or Term;

exceeds:

 

  (ii) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of such Advance or Unpaid Sum received or recovered by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following such receipt or recovery and ending on the last day of the current Interest Period or Term; or

 

  (b) for the purposes of Clause 11.4 (Notice of Prepayment or Cancellation), the loss suffered by any Lender as a result of having to unwind any funding contract for reinvestment of proceeds which it had entered into or initiated upon receipt of the notice of prepayment and/or cancellation referred to in Clause 11.4 (Notice of Prepayment or Cancellation).

Business” means:

 

  (a) the provision of broadband and communications services, including:

 

  (i) residential telephone, mobile telephone, cable television and Internet services, including wholesale Internet access solutions to Internet service providers;

 

  (ii) data, voice and Internet services to large businesses, public sector organisations and small and medium sized enterprises; and

 

  (iii) national and international communications transport services to communications companies;

 

  (b) the provision of Content;

 

  (c) that comprises being a Holding Company of one or more persons engaged in such business referred to in paragraphs (a), (b) and (d) of this definition; and

 

  (d) the provision of services substantially the same or similar to those provided by any member of the Wider Group on the First Effective Date,

and any related ancillary or complementary business to any of the services described above and references to business or ordinary course of business shall be similarly construed.

Business Day” means a day (other than a Saturday or Sunday):

 

  (a) on which banks generally are open for business in London;

 

15


  (b) if such reference relates to a date for the payment or purchase of any sum denominated in euro, which is a TARGET Day;

 

  (c) if such reference relates to a date for the payment or purchase of any sum denominated in US$, on which banks generally are open for business in New York; and

 

  (d) if such reference relates to a date for the payment or purchase of any sum denominated in an Optional Currency (other than euro or US$), the principal financial centre of the country of that currency.

Business Division Transaction” means any sale, transfer, demerger, contribution, spin off or distribution of, any creation or participation in any joint venture and/or entering into any other transaction or taking any action with respect to, in each case, any assets, undertakings and/or businesses of the Group which comprise all or part of the Virgin Media business division (or its predecessors or successors), to or with any other entity or person, whether or not within the Group or the Bank Group, in each case, where such transaction has the prior approval of the Instructing Group.

Capital Expenditure” means any expenditure which is or will be treated as a capital expenditure in the audited consolidated financial statements of the Bank Group in accordance with the Relevant Accounting Principles.

Captive Insurance Company” means any captive insurance company for the Wider Group (or any part thereof, which includes the Bank Group).

Cash” means, at any time:

 

  (a) all Cash Equivalent Investments; and

 

  (b) cash (in cleared balances) denominated in Sterling (or any other currency freely convertible into Sterling) and credited to an account in the name of a member of the Bank Group or the Parent or any other issuer of Parent Debt (as applicable) with an Acceptable Bank and to which such a member of the Bank Group or the Parent or any other issuer of Parent Debt (as applicable) is alone beneficially entitled and for so long as:

 

  (i) such cash is repayable on demand (including any cash held on time deposit which is capable of being broken and the balance received within two Business Days of notice provided that any such cash shall only be taken into account net of any penalties or costs which would be incurred in breaking the relevant time deposit); or

 

  (ii) such cash has been deposited with an Acceptable Bank as security for any performance bond, guarantee, standby letter of credit or similar facility the contingent liabilities relating to such having been included in the calculation of Senior Net Debt or Total Net Debt (as applicable),

and, in any such case,

 

  (A) repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Bank Group or the Parent or any other issuer of Parent Debt (as applicable) or of any other person whatsoever or on the satisfaction of any other condition;

 

16


  (B) there is no encumbrance over that cash except for the Security or any encumbrance constituted by a netting or set-off arrangement entered into by members of the Bank Group or the Parent or any other issuer of Parent Debt (as applicable) in the ordinary course of their banking arrangements and any security interest granted in connection with such banking arrangements; and

 

  (C) the cash is freely and (except as mentioned in paragraph (ii) above) immediately available to be applied in repayment or prepayment of the Facilities or Financial Indebtedness of the Bank Group, the Parent or any other issuer of Parent Debt (as applicable).

Cash Equivalent Investment” means:

 

  (a) securities or obligations issued, insured or unconditionally guaranteed by the United States government, the government of the United Kingdom, the relevant member state of the European Union (each, a “Qualified Country”) or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof;

 

  (b) securities or obligations issued by any Qualified Country, or any political subdivision of any such Qualified Country, or any public instrumentality thereof, having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either Standard & Poor’s or Moody’s (or, if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, then from another nationally recognized rating service);

 

  (c) commercial paper issued by any Lender or any bank holding company owning any Lender;

 

  (d) commercial paper maturing no more than 12 months after the date of acquisition thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either Standard & Poor’s or Moody’s (or, if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

  (e) time deposits, eurodollar time deposits, bank deposits, certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank or trust company (x) having combined capital and surplus of not less than $250.0 million in the case of U.S. banks and $100.0 million (or the U.S. Dollar equivalent thereof) in the case of non-U.S. banks or (y) the long-term debt of which is rated at the time of acquisition thereof at least “A-” or the equivalent thereof by Standard & Poor’s Ratings Services, or “A-” or the equivalent thereof by Moody’s Investors Service, Inc. (or if at the time neither is issuing comparable ratings, then a comparable rating of another nationally recognized rating agency);

 

17


  (f) auction rate securities rated at least Aa3 by Moody’s and AA- by Standard & Poor’s (or, if at any time either Standard & Poor’s or Moody’s shall not be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

  (g) repurchase agreements or obligations with a term of not more than 30 days for underlying securities of the types described in clauses (a), (b) and (e) above entered into with any bank meeting the qualifications specified in clause (e) above or securities dealers of recognized national standing;

 

  (h) marketable short-term money market and similar funds (x) either having assets in excess of $250.0 million (or U.S. Dollar equivalent thereof) or (y) having a rating of at least A-2 or P-2 from either Standard & Poor’s or Moody’s (or, if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service in the United States);

 

  (i) interests in investment companies or money market funds, 95% the investments of which are one or more of the types of assets or instruments described in clauses (a) through (h) above;

 

  (j) any other investments used by the Company, any Permitted Affiliate Parent, any member of the Bank Group or any issuer of Parent Debt as temporary investments permitted by the Facility Agent in writing in its sole discretion; and

 

  (k) in the case of investments by the Company, any Permitted Affiliate Parent, any member of the Bank Group or any issuer of Parent Debt organized or located in a jurisdiction other than the United States or a member state of the European Union (or any political subdivision or territory thereof), or in the case of investments made in a country outside the United States, other customarily utilized high-quality investments in the country where such member of the Bank Group is organized or located or in which such investment is made, all as conclusively determined in good faith by the Company.

Cash Flow” means, for any period, as set out in the most recent relevant management accounts of or in respect of the Target for that period, the Annualised EBITDA of or relating to the Target for such period:

 

  (a) minus Capital Expenditure of or relating to the Target for such period;

 

  (b) minus all Taxes actually paid and/or falling due for payment by or in respect of the Target during such period;

 

  (c) minus the amount of all dividends, redemptions and other distributions payable by the Target during such period on, or in respect of any of its share capital not held by a member of the Bank Group;

 

18


  (d) minus any increase or plus any decrease in working capital of or in respect of the Target for such period;

 

  (e) minus the aggregate of (i) Interest payable by or in respect of the Target during such period and (ii) an amount equal to the Interest that would have been payable in respect of an Advance made during such period in an amount equal to the principal amount of Financial Indebtedness incurred in connection with the Acquisition of the Target, and plus any Interest that was received by the Target during such period; and

 

  (f) minus all extraordinary or exceptional items (including one off restructuring costs) which were paid by the Target during such period on (net of any cash proceeds of insurance or warranty claims which relate to such items) and plus all extraordinary or exceptional items which were received by or in respect of the Target during such period.

For the purposes of the above calculation no item shall be effectively deducted or credited more than once.

Centre of Main Interests” has the meaning given to such term in Article 3(1) of Council Regulation (EC) NO 1346/2000 of 29 May 2000 on Insolvency Proceedings.

Change in Tax Law” means the introduction, implementation, repeal, withdrawal or change in, or in the interpretation, administration or application of any Law relating to taxation (a) in the case of a participation in an Advance by a Lender named in Part 1 of Schedule 1 (Lenders and Commitments) after the Signing Date, or (b) in the case of a participation in an Advance by any other Lender, after the date upon which such Lender becomes a party to this Agreement in accordance with the provisions of Clause 36 (Assignments and Transfers).

Change of Control” has the meaning given to it in Clause 12.1 (Change of Control).

Clean Up Period” has the meaning given to it in Clause 26.3 (Breach of other obligations)

Closing Date” means the date on which Completion occurs.

Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder. Section references to the Code are to the Code, as in effect at the Signing Date and any subsequent provisions of the Code, amendatory of it, supplemental to it or substituted therefor.

Commitment Letter” means the commitment letter dated on or about 9 February 2013 entered into between, among others, the Viper US MergerCo 1 LLC and the Mandated Lead Arrangers.

Commitments” means:

 

  (a) when designated “Additional Facility” in relation to a Lender and an Additional Facility at any time and save as otherwise provided in this Agreement,

 

19


  (i) the amount set opposite its name in the Additional Facility Accession Deed in relation to that Additional Facility and the amount of any other Additional Facility Commitment in relation to that Additional Facility transferred to it under this Agreement;

 

  (ii) the amount specified in the Transfer Deed or the Transfer Agreement pursuant to which such Lender becomes a party to this Agreement; and

 

  (iii) any amount of that Additional Facility assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b) when designated “Revolving Facility” save as otherwise provided in this Agreement,

 

  (i) in relation to an Original Lender, the amount set opposite its name in the relevant column of Part 1 of Schedule 1 (Lenders and Commitments) and any amount of any other Revolving Facility Commitment transferred to it under this Agreement or the amount assumed by it in accordance with Clause 2.2 (Increase); and

 

  (ii) in relation to any other Lender, the amount specified in the Transfer Deed or the Transfer Agreement pursuant to which such Lender becomes a party to this Agreement and any amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

in each case to the extent:

 

  (A) not cancelled, reduced or transferred by it under this Agreement; and

 

  (B) without any such designation, means an “Additional Facility Commitment” and “Revolving Facility Commitment”, as the context requires, and any “Commitment” means either each or any of the foregoing, as the context requires.

Common Holding Company” has the meaning given to such term in Clause 25.1(a)(v) (Permitted Affiliate Group Designation).

Company” means Virgin Media Investment Holdings Limited.

Completion” means the completion of the Merger in accordance with the terms of the Acquisition Agreement.

Composite Revolving Facility Instructing Group” means a Lender or group of Lenders under Maintenance Covenant Revolving Facilities the aggregate of whose Revolving Facility Commitments and Additional Facility Commitments in relation to Maintenance Covenant Revolving Facilities amount in aggregate to more than 50 per cent. of the Revolving Facility Commitments and Additional Facility Commitments in relation to Maintenance Covenant Revolving Facilities in each case calculated in accordance with the provisions of Clause 42.10 (Calculation of Consent).

 

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Confidentiality Undertaking” means a confidentiality undertaking substantially in the recommended form of either the LMA or the LSTA or in any other form agreed between the Company and the Facility Agent.

Confirmation Date” has the meaning given to such term in Clause 17.2(d) (Lender Tax Status).

Content” means any rights to broadcast, transmit, distribute or otherwise make available for viewing, exhibition or reception (whether in analogue or digital format and whether as a channel or an Internet service, a teletext-type service, an interactive service, or an enhanced television service or any part of any of the foregoing, or on a pay-per-view basis, or near video-on-demand, or video-on-demand basis or otherwise) any one or more of audio and/or visual images, audio content, or interactive content (including hyperlinks, re-purposed web-site content, database content plus associated templates, formatting information and other data including any interactive applications or functionality), text, data, graphics, or other content, by means of any means of distribution, transmission or delivery system or technology (whether now known or herein after invented).

Content Transaction” means any sale, transfer, demerger, contribution, spin-off or distribution of, any creation or participation in any joint venture and/or entering into any other transaction or taking any action with respect to, in each case, any assets, undertakings and/or businesses of the Group which comprise all or part of the Content business of the Group, to or with any other entity or person whether or not within the Group or Bank Group.

Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.

Conversion Notice” has the meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary Facilities).

Convertible Senior Notes” means the 6.50% convertible senior notes due 2016 issued by Virgin Media Inc. in the form as at the date of this Agreement.

Cost” means the cost estimated in good faith by the relevant member of the Bank Group to have been incurred or to be received by that member of the Bank Group in the provision or receipt of the relevant service, facility or arrangement, including, without limitation, a proportion of any material employment, property, information technology, administration, utilities, transport and materials or other costs incurred or received in the provision or receipt of such service, facility or arrangement, but excluding costs which are either not material or not directly attributable to the provision or receipt of the relevant service, facility or arrangement.

Credit Facility Excluded Amount” means the greater of:

 

  (a) £500,000,000 (or its equivalent in other currencies); and

 

  (b) 0.25 multiplied by Annualised EBITDA for the most recent Ratio Period.

CTA” means the Corporation Tax Act 2009.

 

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Deemed Advance” means an Advance on the first Utilisation Date in accordance with Clause 5.2 (Existing Documentary Credits).

Default” means an Event of Default or any event or circumstance specified in Clause 26 (Events of Default) which would (with the expiry of a grace period or the giving of notice) be an Event of Default.

Defaulting Lender” means any Lender (other than a Lender which is or becomes a member of the Wider Group):

 

  (a) which has failed to make its participation in an Advance available or has notified the Facility Agent that it will not make its participation in an Advance available by the Utilisation Date of that Advance in accordance with Clause 4.2 (Lenders Participations) or has failed to provide cash collateral (or has notified an L/C Bank that it will not provide cash collateral) in accordance with Clause 5.9 (Cash Collateral by Non-Acceptable L/C Lender);

 

  (b) which has otherwise rescinded or repudiated a Relevant Finance Document;

 

  (c) which is an L/C Bank which has failed to issue a Documentary Credit (or has notified the Facility Agent or the Parent (which has notified the Facility Agent) that it will not issue or re-issue a Documentary Credit) in accordance with Clause 5 (Documentary Credits) or which has failed to pay a claim (or has notified the Facility Agent or the Parent (which has notified the Facility Agent) that it will not pay a claim) in accordance with (and as defined in) Clause 5.7 (Claims under a Documentary Credit); or

 

  (d) with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

 

  (i) its failure to pay is caused by:

 

  (A) administrative or technical error; or

 

  (B) a Disruption Event; and

payment is made within two Business Days of its due date; or

 

  (ii) the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

Designated Gross Amount” has the meaning given to such term in Clause 6.1(b)(vi) (Utilisation of Ancillary Facilities).

Designated Net Amount” has the meaning given to such term in Clause 6.1(b)(vi) (Utilisation of Ancillary Facilities).

Designated Party” means any person listed:

 

  (a) in the Annex to the Executive Order;

 

22


  (b) on the “Specially Designated Nationals and Blocked Persons” list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury; or

 

  (c) in any successor list to either of the foregoing.

Designated Website” has the meaning given to such term in Clause 39.3(a) (Use of Websites/E-mail).

Disputes” has the meaning given to such term in Clause 46.1 (Courts).

Disruption Event” means either or both of:

 

  (a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Relevant Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties to this Agreement; or

 

  (b) the occurrence of any other event which results in a material disruption (of a technical or systems-related nature) to the treasury or payments operations of a Relevant Finance Party to this Agreement preventing that, or any other Relevant Finance Party:

 

  (i) from performing its payment obligations under the Relevant Finance Documents; or

 

  (ii) from communicating with other parties in accordance with the terms of the Relevant Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.

Documentary Credit” means a letter of credit, bank guarantee, indemnity, performance bond or other documentary credit issued or to be issued by an L/C Bank pursuant to Clause 4.1 (Conditions to Utilisation).

Dormant Subsidiary” means a member of the Group which does not trade (for itself or as agent for any person) and does not own, legally or beneficially, assets (including, without limitation, indebtedness owed to it) which in aggregate have a value of more than £10,000 (excluding loans existing on the Signing Date owed to it by members of the Bank Group) or its equivalent in other currencies.

Double Taxation Treaty” means in relation to a payment of interest on an Advance made to any Borrower, any convention or agreement between the government of the Borrower’s Relevant Tax Jurisdiction and any other government for the avoidance of double taxation with respect to taxes on income and capital gains which makes provision for exemption from tax imposed by the Borrower’s Relevant Tax Jurisdiction on interest.

EBITDA” has the meaning given to it in Clause 22 (Financial Covenant).

 

23


Effective Date” has the meaning given to such term in Clause 6.1(a) (Utilisation of Ancillary Facilities).

Environment” means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

  (a) air (including, without limitation, air within natural or man-made structures, whether above or below ground);

 

  (b) water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

  (c) land (including, without limitation, land under water).

Environmental Claim” means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.

Environmental Law” means any applicable law or regulation which relates to:

 

  (a) the pollution or protection of the Environment;

 

  (b) the conditions of the workplace; or

 

  (c) the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.

Environmental Permits” means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Bank Group conducted on or from the properties owned or used by any member of the Bank Group.

Equity Equivalent Funding” means a loan made to, or any Financial Indebtedness owed by, any person where the Financial Indebtedness incurred thereby:

 

  (a) may not be repaid at any time prior to the repayment in full of all Outstandings and cancellation of all Available Commitments;

 

  (b) carries no interest or carries interest which is payable only on non-cash pay terms or following repayment in full of all Outstandings and cancellation of all Available Commitments;

 

  (c) is either (i) structurally and contractually subordinated to the Facilities or (ii) contractually subordinated to the Facilities, in each case, pursuant to the HYD Intercreditor Agreement and/or the Group Intercreditor Agreement; and

 

  (d) if not already subject to Security created under the Original Security Documents, Security in favour of the Security Trustee on terms satisfactory to the Security Trustee is promptly granted by the relevant creditor over its rights with respect to any such Financial Indebtedness.

 

24


ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate” means each person, entity, trade or business, whether or not incorporated, that would be treated as a single employer with any member of the Bank Group under section 414 of the Code. When any provision of this Agreement relates to a past event, the term ERISA Affiliate includes any person that was an ERISA Affiliate of a member of the Bank Group at the time of that past event.

EURIBOR” means, in relation to any Advance under this Agreement in euro:

 

  (a) the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period or Term of that Advance; or

 

  (b) as otherwise determined pursuant to Clause 15.1 (Unavailability of Screen Rate).

European Interbank Market” means the interbank market for euro operating in Participating Member States.

Event of Default” means any of the events or circumstances described as such in Clause 26 (Events of Default) and, in respect of any references to such term in connection with Clause 23 (Undertakings) only, shall include a breach of the undertaking set out in Clause 22.2 (Financial Ratio), to the extent tested, subject to the expiry of the cure period in Clause 22.4 (Cure Provisions).

Excess Capacity Network Service” means the provision of network services, or agreement to provide network services, by a member of the Bank Group in favour of one or more other members of the Wider Group where such network services are only provided in respect of the capacity available to such member of the Bank Group in excess of that network capacity it requires to continue to provide current services to its existing and projected future customers and to allow it to provide further services to both its existing and projected future customers.

Exchange Act” means the Securities Exchange Act of 1934, as amended.

Existing Documentary Credits means each of the documentary credits, performance bonds or similar obligations issued for or on behalf of members of the Bank Group existing as at the Signing Date, details of which are set out in Part 2 of Schedule 12 (Existing Documentary Credits).

Existing Financial Indebtedness” means the Financial Indebtedness existing as at the Signing Date, details of which are set out in Part 1 of Schedule 12 (Existing Financial Indebtedness).

Existing Hedging Agreements” means the hedging agreements with the Hedge Counterparties existing as at the Signing Date, details of which are set out in Schedule 13 (Existing Hedge Counterparties).

Existing High Yield Notes” means the (i) $600,000,000 8.375% senior notes due 2019 issued by Virgin Media Finance PLC, (ii) £350,000,000 8.875% senior notes due 2019 issued by Virgin Media Finance PLC, (iii) $500,000,000 5.25% senior notes

 

25


due 2022 issued by Virgin Media Finance PLC, (iv) $900,000,000 4.875% senior notes due 2022 issued by Virgin Media Finance PLC, (v) £400,000,000 5.125% senior notes due 2022 issued by Virgin Media Finance PLC (vi) $530,000,000 6.375% senior notes due 2023 issued by Lynx II, Corp and assumed by Virgin Media Finance PLC, and (vii) £250,000,000 senior notes due 2023 issued by Lynx II, Corp and assumed by Virgin Media Finance PLC.

Existing Loans” means the loans granted by members of the Bank Group existing as at the Signing Date, details of which are set out in Part 2 of Schedule 11 (Existing Loans).

Existing Security Interest” means any Security Interest existing as at the Signing Date, details of which are set out in Part 1 of Schedule 11 (Existing Security Interests).

Existing Senior Credit Facilities Agreement” means the senior credit facilities agreement made between, inter alia, Virgin Media Inc., Virgin Media Finance PLC as parent, Virgin Media Investment Holdings Limited, Telewest Communications Networks Limited and VMIH Sub Limited as UK borrowers, Virgin Media Dover LLC as US borrower, Deutsche Bank AG, London Branch, J.P. Morgan Plc, The Royal Bank of Scotland Plc and Goldman Sachs International as bookrunners and mandated lead arrangers, Deutsche Bank AG, London Branch as facility agent, Deutsche Bank AG, London Branch as security trustee, GE Corporate Banking Europe SAS as administrative agent and the financial and other institutions named in it as lenders dated 3 March 2006 (as amended and restated).

Existing Senior Secured Notes” means the (i) $1,000,000,000 6.50% senior secured notes due 2018 issued by Virgin Media Secured Finance PLC, (ii) £875,000,000 7.00% senior secured notes due 2018 issued by Virgin Media Secured Finance PLC, (iii) £650,000,000 5.50% senior secured notes due 2021 issued by Virgin Media Secured Finance PLC, (iv) $500,000,000 5.25% senior secured notes due 2021 issued by Virgin Media Secured Finance PLC, (v) $1,000,000,000 5.375% senior secured notes due 2021 issued by Lynx I Corp, and assumed by Virgin Media Secured Finance PLC, and (vi) £1,100,000,000 senior secured notes due 2021 issued by Lynx 1 Corp, and assumed by Virgin Media Secured Finance PLC.

Existing Vendor Financing Arrangements” means each of the existing finance leases and vendor financing arrangements existing as at the date of the Agreement, details of which are set out in Part 3 of Schedule 12 (Existing Vendor Financing Arrangements).

Expiry Date” means, in relation to any Documentary Credit granted under this Agreement, the date stated in it to be its expiry date or the latest date on which demand may be made under it being a date falling on or prior to the Final Maturity Date in respect of the Revolving Facility or the relevant Additional Facility (as applicable).

Facilities” means any Additional Facility, the Revolving Facility, any Ancillary Facility and any Documentary Credit granted to the Borrowers under this Agreement, and “Facility” means any of them, as the context may require.

 

26


Facility Agent’s Spot Rate of Exchange” means, in relation to two currencies, the Facility Agent’s spot rate of exchange for the purchase of the first-mentioned currency with the second-mentioned currency in the London foreign exchange market at the Specified Time on a particular day.

Facility Office” means the office(s) notified by a Lender to the Facility Agent:

 

  (a) on or before the date it becomes a Lender; or

 

  (b) by not less than five Business Days’ notice,

 

  (c) as the office(s) through which it will perform all or any of its obligations under this Agreement.

Fallback Interest Period” means one Month.

FATCA” means:

 

  (a) sections 1471 to 1474 of the Code or any associated regulations;

 

  (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

  (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

FATCA Application Date” means:

 

  (a) in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interests and certain other sources within the US), 1 July 2014;

 

  (b) in relation to a “withholdable payment” described at Section 1473(1)(A)(ii) of the Code (which relates to gross proceeds” from the disposition of property of a type that can produce interest from sources within the US, 1 January 2017; or

 

  (c) in relation to a “passthru payment” described in section 1471(d)7 of the Code not falling within paragraphs (a) and (b) above, 1 January 2017,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the Signing Date.

FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

27


FATCA Exempt Party” means a Party which is entitled to receive payments free from any deduction on account of FATCA.

Fee Letter” means the fee letter dated on or around 9 February 2013 entered into between, among others, Viper US MergerCo 1 LLC and the Mandated Lead Arrangers and any other letter signed by a Borrower which sets out any of the fees payable under Clause 16 (Commissions and Fees).

Final Maturity Date” means:

 

  (a) in respect of the Revolving Facility, 31 December 2021; and

 

  (b) in respect of an Additional Facility, as agreed by the Company and the relevant Additional Facility Lenders in the relevant Additional Facility Accession Deed, but subject to Clause 2.5 (Additional Facilities).

Finance Documents” means:

 

  (a) any Relevant Finance Document;

 

  (b) any Senior Secured Notes Document; and

 

  (c) any other agreement or document designated a “Finance Document” in writing by the Facility Agent and the Company.

Finance Lease” means a lease treated as a capital or finance lease pursuant to the Relevant Accounting Principles provided that, upon a change in IFRS or GAAP eliminating the difference in treatment of operating leases and capital leases, “Finance Lease” shall be deemed to be a leasing arrangement where the net present value of the payments (using an interest rate determined with reference to yield to maturity in the trading markets for the issue at the date of the lease of the Parent’s unsecured senior notes with the longest maturity date at the date of the lease) exceeds 90 per cent. of the fair value of the asset.

Finance Parties” means the Facility Agent, the Arrangers, the Bookrunners, the Security Trustee, the Lenders and each Hedge Counterparty, the holders of any Senior Secured Notes and the trustees and/or agents in respect of any Senior Secured Notes and “Finance Party” means any of them.

Financial Indebtedness” means, without double counting, indebtedness in respect of:

 

  (a) money borrowed or raised and debit balances at banks or other financial institutions;

 

  (b) any bond, note, loan stock, debenture or similar debt instrument;

 

  (c) acceptance or documentary credit facilities;

 

  (d) [reserved];

 

28


  (e) (for the purposes of Clause 26.5 (Cross default) only) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked-to-market value (or, if any actual amount is due as a result of the termination or close-out of all or part of that derivative transaction, that amount together with the marked-to-market value of any part of that derivative transaction in respect of which no amount is due as a result of a termination or close-out) shall be taken into account); and

 

  (f) guarantees in respect of indebtedness of any person falling within any of paragraphs (a) to (e) above (including for the avoidance of doubt, without double counting, guarantees given by a member of the Bank Group for the indebtedness of the type falling within (a) to (e) above of another member of the Bank Group),

provided that the following shall not be regarded as Financial Indebtedness:

 

  (i) indebtedness which has been cash-collateralised to the extent so cash-collateralised;

 

  (ii) any obligations to make payments in relation to earn outs;

 

  (iii) any pension obligations or any obligations under employee plans or employment agreements;

 

  (iv) receivables sold or discounted, whether recourse or non-recourse, including for the avoidance of doubt any indebtedness in respect of an asset securitisation programme or receivables factoring transaction, or its equivalent in each case, and any related credit support and any indebtedness in respect of Limited Recourse;

 

  (v) any liabilities or payments for assets acquired or services supplied which are deferred;

 

  (vi) indebtedness raised through sale and lease back transactions;

 

  (vii) any deposits or prepayments received by any member of the Bank Group from a customer or subscriber for its service and any other deferred or prepaid revenue;

 

  (viii) indebtedness which is in the nature of equity (other than redeemable shares) or equity derivatives;

 

  (ix) obligations under Finance Leases;

 

  (x) any parallel debt obligations to the extent such obligations mirror other Financial Indebtedness; and

 

29


  (i) any indebtedness of any member of the Bank Group, in respect of which the person or persons to whom such indebtedness is or may be owed has or have no recourse whatsoever to any member of the Bank Group for any payment or repayment in respect thereof:

 

  (A) other than recourse to such member of the Bank Group which is limited solely to the amount of any recoveries made on the enforcement of any Security Interests securing such indebtedness or in respect of any other disposition or realisation of the assets underlying such indebtedness;

 

  (B) provided that such person or persons are not entitled, pursuant to the terms of any agreement evidencing any right or claim arising out of or in connection with such indebtedness, to commence proceedings for the winding up, dissolution or administration of any member of the Bank Group (or proceedings having an equivalent effect) or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of any member of the Borrower Group or any of its assets until after the Commitments have been reduced to zero and all amounts outstanding under the Relevant Finance Documents have been repaid or paid in full; and

 

  (C) provided further that the principal amount of all indebtedness incurred and then outstanding pursuant to this paragraph does not exceed the greater of:

 

  (I) £300,000,000 (or its equivalent in other currencies); and

 

  (II) 5.0 per cent. of Total Assets.

Financial Quarter” means the period commencing on the day immediately following any Quarter Date in each year, and ending on the next succeeding Quarter Date.

Financial Support Direction” means a financial support direction issued by the Pensions Regulator under Section 43 of the Pensions Act 2004.

First Effective Date” means 17 July 2015.

Fitch” means Fitch Ratings or any successor thereof.

Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States by any member of the Bank Group for the benefit of employees of any member of the Bank Group residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

Fraudulent Transfer Law” means any applicable United State bankruptcy and State fraudulent transfer and conveyance statute and any related case law.

Funded Excluded Subsidiary” means, in respect of a Funding Passthrough, the Bank Group Excluded Subsidiary or any person in which a member of the Bank Group owns an interest but which is not a member of the Bank Group which:

 

  (a) indirectly receives funding from the Borrower Holdco; and/or

 

30


  (b) by way of dividend or other distribution, loan or payment of interest on or the repayment of the principal amount of any indebtedness owed by it, directly or indirectly, makes a payment to the Borrower Holdco.

Funding Passthrough” means a series of transactions between the Borrower Holdco, one or more members of the Bank Group and a Funded Excluded Subsidiary where:

 

  (a) in the case of funding being provided by the Borrower Holdco to the Funded Excluded Subsidiary, that funding is:

 

  (i) first made available by the Borrower Holdco to (in the case of the Parent) the Company or, one of its Subsidiaries (other than in the case of Virgin Media Communications, the Parent or any of its Subsidiaries) by way of the subscription for new securities, capital contribution or Subordinated Funding;

 

  (ii) secondly (if relevant) made available by the recipient of the Funding Passthrough under (i) above, to a member of the Bank Group (other than the Company) which may be followed by one or more transactions between members of the Bank Group (other than the Company) and finally made available by a member of the Bank Group (other than the Company) to the Funded Excluded Subsidiary in all such cases by way of either the subscription for new securities, the advancing of loans or capital contribution; or

 

  (b) in the case of a payment to be made by the Funded Excluded Subsidiary to the Borrower Holdco that payment is:

 

  (i) first made by the Funded Excluded Subsidiary to a member of the Bank Group, and thereafter is made between members of the Bank Group (as relevant), by way of dividend or other distribution, loan or payment of interest on or the repayment of the principal amount of any indebtedness owed by such Funded Excluded Subsidiary or relevant member of the Bank Group; and

 

  (ii) finally made by the Company to the Parent or by one of the Subsidiaries of Virgin Media Communications (other than the Parent or any of its Subsidiaries) to Virgin Media Communications by way of dividend or other distribution, loan or the payment of interest on or the repayment of the principal amount of any loan made by way of Subordinated Funding.

Funding Rate” means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 15.4(a)(ii) (Cost of funds).

Funds Flow Memorandum” means the funds flow memorandum (including the sources and uses) prepared in connection with the Merger and delivered by the Company to the Facility Agent pursuant to this Agreement.

 

31


GAAP” means accounting principles generally accepted in the United States.

Group” means the Parent and its Subsidiaries from time to time and any other member of the Bank Group, provided that at any time after a Group Redesignation Notice has been delivered to the Facility Agent in accordance with Clause 23.36 (Group Redesignation), the “Group” shall also include each New Group Topco and its Subsidiaries, other than Bank Group Excluded Subsidiaries.

Group Intercreditor Agreement” means the intercreditor agreement dated 3 March 2006, as amended and restated on 13 June 2006, 10 July 2006, 31 July 2006, 15 May 2008, 30 October 2009 and 8 January 2010 and otherwise and from time to time between, among others, certain of the Obligors, other members of the Group and the applicable Relevant Finance Parties.

Group Redesignation Notice” has the meaning given to it in Clause 23.36 (Group Redesignation).

Group Structure Chart” means the structure chart of the Group in the form delivered to the Facility Agent on or prior to the Closing Date.

Guarantors” means:

 

  (a) for the purposes of Clause 28 (Guarantee and Indemnity), the Original Guarantors and any Acceding Guarantors; and

 

  (b) for the purposes of any other provision of the Relevant Finance Documents, the Original Guarantors (other than the Parent) and any Acceding Guarantors,

and “Guarantor” means any one of them as the context requires, provided that in either case, such person has not been released from its rights and obligations as a Guarantor hereunder pursuant to Clause 42.7 (Release of Guarantees and Security).

Hazardous Substance” means any waste, pollutant, contaminant or other substance (including any liquid, solid, gas, ion, living organism or noise) that may be harmful to human health or other life or the Environment.

Hedge Counterparty” means any counterparty which is a party to a Hedging Agreement permitted or not prohibited by this Agreement and has acceded to the Group Intercreditor Agreement and the HYD Intercreditor Agreement, as applicable, and “Hedge Counterparties” means all such counterparties.

Hedging Agreement” means any agreement in respect of any interest rate swap, currency swap, commodity hedging transaction, forward foreign exchange transaction, cap, floor, collar or option transaction or any other treasury transaction or any combination of it or any other transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

Hedging Obligor” means any member of the Group party to a Hedging Agreement which is a Relevant Finance Document.

High Yield Notes” means high yield debt securities or other instruments not mandatorily convertible into equity, in each case issued by the Parent or any Permitted Affiliate Holdco including the Existing High Yield Notes, Additional High Yield Notes and any High Yield Refinancing (as applicable).

 

32


High Yield Refinancing” means any Financial Indebtedness incurred by the Parent or any Permitted Affiliate Holdco for the purposes of refinancing all or a portion of the Existing High Yield Notes and/or any Additional High Yield Notes and/or any High Yield Refinancing and/or any Senior Secured Notes and/or any Financial Indebtedness permitted to be incurred or outstanding pursuant to Clause 23.13 (Restrictions on Financial Indebtedness), in each case, including any Financial Indebtedness incurred for the purpose of the payment of all principal, interest, fees, expenses, commissions, make-whole and any other contractual premium payable under such Financial Indebtedness being refinanced and any reasonable fees, costs and expenses incurred in connection with such refinancing, in respect of which the following terms apply:

 

  (a) the principal amount of any such Financial Indebtedness shall not exceed the principal amount of, and any outstanding interest on, the Financial Indebtedness being refinanced (plus all fees, expenses, commissions, make-whole or other contractual premium payable in connection with such refinancing);

 

  (b) it is unsecured, except that where such Financial Indebtedness is issued by the Parent or any Permitted Affiliate Holdco, it may be secured by a pledge of the shares in the Parent or any Permitted Affiliate Holdco or one of their parent companies (as applicable) if such Financial Indebtedness is unable to receive the benefit of the subordinated guarantees of the Company and/or Intermediate Holdco contemplated by paragraph (c) below, for tax or other reasons as reasonably determined by the Company; and

 

  (c) if such Financial Indebtedness is guaranteed, it is not guaranteed by any member of the Bank Group other than the Company and/or Intermediate Holdco, provided that any such guarantee or guarantees so provided are (i) granted on subordination and release terms substantially the same as the existing guarantees of the Company and Intermediate Holdco in favour of the Existing High Yield Notes and (ii) subject to the terms of the HYD Intercreditor Agreement or a Supplemental HYD Intercreditor Agreement.

Historic Screen Rate” means, in relation to any Advance, the most recent applicable Screen Rate for the currency of that Advance and for a period equal in length to the Interest Period or Term of that Advance and which is as of a day which is no more than 5 Business Days before the Quotation Date.

Holding Company” of a company means a company of which the first-mentioned company is a Subsidiary.

Holding Company Expenses” means:

 

  (a)

costs (including all professional fees and expenses) incurred by the Ultimate Parent and its Subsidiaries and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of a Joint Venture Parent and any Parent Joint Venture Holders from time to time in connection

 

33


  with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to Financial Indebtedness of the Ultimate Parent and its Subsidiaries and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of a Joint Venture Parent and any Parent Joint Venture Holders from time to time;

 

  (b) indemnification obligations of the Ultimate Parent and its Subsidiaries and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of a Joint Venture Parent and any Parent Joint Venture Holders from time to time owing to directors, officers, employees or other persons under its charter or by-laws or pursuant to written agreements with any such person with respect to ownership of any Parent Entity or any Permitted Affiliate Parent or the conduct of the business of the Bank Group;

 

  (c) obligations of the Ultimate Parent and its Subsidiaries and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of a Joint Venture Parent and any Parent Joint Venture Holders from time to time in respect of director and officer insurance (including premiums therefor) with respect to ownership of any Parent Entity, the Ultimate Parent or any Permitted Affiliate Parent or the conduct of the business of the Bank Group; and

 

  (d) general corporate overhead expenses, including professional fees and expenses and other operational expenses of the Ultimate Parent and its Subsidiaries and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of a Joint Venture Parent and any Parent Joint Venture Holders from time to time related to the ownership or operation of the business of any Parent Entity or any member of the Bank Group, including acquisitions or dispositions by a member of the Bank Group permitted hereunder (whether or not successful) in each case, to the extent such costs, obligations and/or expenses are not paid by another Subsidiary of the Ultimate Parent and its Subsidiaries and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of a Joint Venture Parent and any Parent Joint Venture Holders; and

 

  (e) any fees and expenses payable by any Parent Entity in connection with a Post-Closing Reorganisation.

HYD Intercreditor Agreement” means the intercreditor agreement dated 13 April 2004, as amended and restated on 30 December 2009 and otherwise and from time to time between certain of the Obligors, the Relevant Finance Parties and the indenture trustee in respect of the Existing High Yield Notes.

IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

34


Impaired Agent” means the Facility Agent at any time when:

 

  (a) it has failed to make (or has notified a Relevant Finance Party that it will not make) a payment required to be made by it under the Relevant Finance Documents by the due date for payment;

 

  (b) the Facility Agent otherwise rescinds or repudiates a Relevant Finance Document;

 

  (c) (if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or

 

  (d) an Insolvency Event has occurred and is continuing with respect to the Facility Agent,

unless, in the case of paragraph (a) above:

 

  (i) its failure to pay is caused by:

 

  (A) administrative or technical error; or

 

  (B) a Disruption Event; and

payment is made within three Business Days of its due date; or

 

  (ii) the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

Increase Confirmation” means a confirmation substantially in the form set out in Schedule 16 (Form of Increase Confirmation).

Increase Lender” has the meaning set out in Clause 2.2(a) (Increase).

Increased Cost” means:

 

  (a) any reduction in the rate of return from a Facility or on a Relevant Finance Party’s (or an Affiliate’s) overall capital;

 

  (b) any additional or increased cost; or

 

  (c) any reduction of any amount due and payable under any Relevant Finance Document,

which is incurred or suffered by a Relevant Finance Party or any of its Affiliates to the extent that it is attributable to that Relevant Finance Party having agreed to make available its Commitment or having funded or performed its obligations under any Relevant Finance Document.

Indebtedness” means any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent (including interest and other charges relating to it).

 

35


Instructing Group” means:

 

  (a) at any time, Lenders the aggregate of whose Available Commitment and participations in outstanding Advances exceeds 50.00 per cent. of the aggregate undrawn Total Commitments and the outstanding Advances of all the Lenders calculated in accordance with the provisions of Clause 42.10 (Calculation of Consent) provided that, in relation to a Facility, the “Instructing Group” means at any time, Lenders the aggregate of whose Available Commitments under that Facility and participations in outstanding Advances under that Facility exceeds 50 per cent. of the aggregate Available Commitments of all Lenders under that Facility and outstanding Advances of all Lenders under that Facility calculated in accordance with the provisions of Clause 42.10 (Calculation of Consent); and

 

  (b) notwithstanding the foregoing, for the purposes of the definition of Instructing Group in the Group Intercreditor Agreement and the HYD Intercreditor Agreement, the Senior Finance Parties (as defined in the Group Intercreditor Agreement) representing a majority of the aggregate outstanding principal amount and undrawn uncancelled commitments under the Senior Finance Documents (as defined in the Group Intercreditor Agreement) at the relevant date of determination.

Insolvency Event” in relation to a Relevant Finance Party means that the Relevant Finance Party:

 

  (a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

  (b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c) makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

  (e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

  (i) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

36


  (ii) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

  (f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

  (h) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; or

 

  (i) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above.

Intellectual Property Rights” means all know-how, patents, trade marks, designs and design rights, trading names, copyrights (including any copyright in computer software), database rights and other intellectual property rights anywhere in the world (in each case whether registered or not and including all applications for the same).

Interest Period” means, save as otherwise provided in this Agreement, any of those periods mentioned in Clause 14.1 (Interest Periods for Term Facility Advances).

Intermediate Holdco” means Virgin Media Investments Limited, a company incorporated in England and Wales with registered number 07108297, whose registered office is at Media House, Bartley Wood Business Park, Hook, Hampshire, RG27 9UP.

Interpolated Historic Screen Rate” means, in relation to any Advance, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

  (a) the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period or Term of that Advance; and

 

  (b) the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period or Term of that Advance,

each for the currency of that Advance and each of which is as of a day which is no more than 5 Business Days before the Quotation Date.

 

37


Interpolated Screen Rate” means, in relation to any Advance, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

  (a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period or Term of that Advance; and

 

  (b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period or Term of that Advance,

each as of the Specified Time for the currency of that Advance.

Intra-Group Services” means any of the following (provided that the terms of each such transaction are not materially less favourable, taken as a whole, to the Company or any member of the Bank Group, as the case may be, than those that could be obtained in a comparable transaction in arm’s length dealings with a person that is not an Affiliate):

 

  (a) the sale of programming or other Content by any member(s) of the Wider Group to one or more members of the Bank Group;

 

  (b) the lease or sublease of office space, other premises or equipment on arms’ length terms by one or more members of the Bank Group to one or more members of the Wider Group or by one or more members of the Wider Group to one or more members of the Bank Group;

 

  (c) the provision or receipt of other goods, services, facilities or other arrangements (in each case not constituting Financial Indebtedness) in the ordinary course of business, by or from one or more members of the Bank Group to or from one or more members of the Wider Group including, without limitation, (i) the employment of personnel, (ii) provision of employee healthcare or other benefits, (iii) acting as agent to buy equipment, other assets or services or to trade with residential or business customers, and (iv) the provision of audit, accounting, banking, branding, marketing, network, technology, research and development, installation and customer service, telephony, office, administrative, compliance, payroll or other similar services ; and

 

  (d) the extension, in the ordinary course of business and on terms not materially less favourable to the relevant member of the Bank Group than arms’ length terms, by or to any member of the Bank Group to or by any such member of the Wider Group of trade credit not constituting Financial Indebtedness in relation to the provision or receipt of Intra-Group Services referred to in paragraphs (a), (b) or (c) above.

Investment Company” has the meaning given to it in the United State Investment Company Act of 1940.

ITA” means the Income Tax Act 2007.

 

38


Joint Venture” means any joint venture, partnership or similar arrangement between any member of the Bank Group and any other person that is not a member of the Bank Group.

Joint Venture Group” means any Joint Venture and its Subsidiaries from time to time.

Joint Venture Parent” means the joint venture entity formed in a Parent Joint Venture Transaction.

Law” means:

 

  (a) common or customary law;

 

  (b) any constitution, decree, judgment, legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction; and

 

  (c) any directive, regulation, practice, requirement which has the force of law and which is issued by any governmental body, agency or department or any central bank or other fiscal, monetary, regulatory, self-regulatory or other authority or agency.

L/C Bank” means any Lender which has been appointed as an L/C Bank in accordance with Clause 5.12 (Appointment and Change of L/C Bank) and which has not resigned in accordance with Clause 5.12(c) (Appointment and Change of L/C Bank).

L/C Bank Accession Certificate” means a duly completed accession certificate substantially in the form set out in Schedule 14 (Form of L/C Bank Accession Certificate).

L/C Lender” has the meaning set out in Clause 5.1(b) (Issue of Documentary Credits).

L/C Proportion” means, in relation to a Lender:

 

  (a) in respect of any Documentary Credit issued under the Revolving Facility and save as otherwise provided in this Agreement, the proportion (expressed as a percentage) borne by such Lender’s Available Revolving Facility Commitment to the Available Revolving Facility immediately prior to the issue of such Documentary Credit; and

 

  (b) in respect of any Documentary Credit issued under an Additional Facility and save as otherwise provided in this Agreement, the proportion (expressed as a percentage) borne by such Lender’s Available Additional Facility Commitment to the aggregate of all Available Additional Facility Commitments in relation to that Additional Facility immediately prior to the issue of such Documentary Credit.

Legal Opinions” means all of the legal opinions delivered under this Agreement from time to time.

 

39


Lender” means:

 

  (a) an Original Lender;

 

  (b) a person (including each L/C Bank and each Ancillary Facility Lender) which has become a party to this Agreement as a Lender in accordance with the provisions of Clause 36 (Assignments and Transfers);

 

  (c) a person (including each L/C Bank and each Ancillary Facility Lender) which has become a party to this Agreement as a Lender by executing an Additional Facility Accession Deed,

which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.

Lender Asset Security Release Confirmation” means a notice from the Facility Agent to the Lenders confirming that the consents required under Clause 42.6 (Guarantees and Security) to release all of the Security other than that referred to at paragraph (b) of the definition of “80% Security Test” have been obtained.

LIBOR” means, in relation to any Advance:

 

  (a) the applicable Screen Rate as of the Specified Time for the currency of that Advance and for a period equal in length to the Interest Period or Term of that Advance; or

 

  (b) as otherwise determined pursuant to Clause 15.1 (Unavailability of Screen Rate).

Licence” means each approval, consent, authorisation and licence from, and all filings, registrations and agreements with any governmental or regulatory authority, in each case granted, issued, made or entered into pursuant to any Telecommunications, Cable and Broadcasting Laws necessary in order to enable each member of the Bank Group to carry on its business as may be permitted by the terms of this Agreement.

Limited Condition Transaction” means (i) any investment or acquisition, in each case, by a member of the Bank Group of any assets, business or person, the consummation of which is not conditional on the availability of, or on obtaining, third party finance and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Financial Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.

Limited Recourse” means a letter of credit issued on behalf of, or revolving loan commitment, or a cash collateral account, guarantee or other credit enhancement established, entered into or otherwise provided by any member of the Bank Group (other than an Asset Securitisation Subsidiary) in connection with the incurrence of Financial Indebtedness by an Asset Securitisation Subsidiary in relation to an asset securitisation programme or programmes or one or more receivables factoring transactions; provided that, the aggregate amount of such letter of credit reimbursement obligations and the aggregate available amount of such revolving loan commitments, cash collateral accounts, guarantees or other such credit enhancements of members of the Bank Group (other than an Asset Securitisation Subsidiary) shall not exceed 25 per cent. of the principal amount of such Financial Indebtedness at any time.

 

40


Liquidation Transfer” has the meaning given to such term in Clause 23.31 (Internal Reorganisations).

Maintenance Covenant Revolving Facility” means:

 

  (a) the Revolving Facility; and

 

  (b) each Additional Facility which is a revolving facility that is designated by the Company by notice in writing to the Facility Agent at any time to have the benefit of Clause 22.2 (Financial Ratio).

Majority Acquisition” has the meaning given in paragraph (m) of the definition of Permitted Acquisition.

Management Fees” means:

 

  (a) any management, consultancy, stewardship or other similar fees payable by any member of the Bank Group to any Restricted Person, including any fees, charges and related expenses incurred by any Parent Entity on behalf of and/or charged to any member of the Bank Group; and

 

  (b) following the consummation of any Parent Joint Venture Transaction, any management, consultancy or similar fees payable by any member of the Bank Group to any Joint Venture Parent, any Subsidiary of the Joint Venture Parent and any Parent Joint Venture Holders.

Margin” means the Additional Facility Margin and the Revolving Facility Margin as applicable and, if applicable, adjusted in accordance with the Additional Facility Accession Deed.

Margin Regulations” means Regulation T, Regulation U and Regulation X.

Margin Stock” means “margin stock” or “margin securities” as defined in the Margin Regulations.

Marketable Securities” means any security which is listed on any publicly recognised stock exchange and which has, or is issued by a company which has, a capitalisation of not less than £1,000,000,000 (or its equivalent in other currencies) as at the time such Marketable Securities are acquired by any member of the Bank Group by way of consideration for any disposal permitted under Clause 23.11 (Disposals).

Material Adverse Effect” means any event or circumstance which has a material adverse effect on the ability of the Obligors (taken as a whole) to perform their payment obligations under any of the Relevant Finance Documents.

Material Subsidiary” means, at the relevant time, any Subsidiary of the Company or any Subsidiary of any Permitted Affiliate Parent which accounts for more than five per cent. on an unconsolidated basis of consolidated EBITDA of the Bank Group as shown in the financial statements most recently delivered under Clause 23.2 (Financial information).

 

41


Maturing Advance” has the meaning given to such term in Clause 8.2 (Rollover Advances).

Merger” means the Virgin Mergers as set out in the Acquisition Agreement.

Merged Entity” has the meaning given to such term in Clause 23.12 (Acquisitions and mergers).

Moodys” means Moody’s Investor Services, Inc. or any successor thereof.

Multiemployer Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of) any member of the Bank Group or an ERISA Affiliate, and each such plan for the five year period immediately following the latest date on which any member of the Bank Group or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan.

Necessary Authorisations” means all material approvals, consents, authorisations and licences (other than the Licences) from, all rights granted by and all filings, registrations and agreements with, any government or other regulatory authority necessary in order to enable each member of the Bank Group to carry on its business as may be permitted by the terms of this Agreement as carried on by it at the relevant time.

Net Proceeds” means the aggregate cash (or cash equivalent) proceeds received by any member of the Bank Group in consideration for or otherwise in respect of a relevant disposal, net of all Taxes applicable on, or to any gain resulting from, that disposal and of all reasonable costs, fees and expenses properly incurred by continuing members of the Bank Group in arranging and effecting that disposal.

New Equity” means a subscription for capital stock of a Parent or any other form of equity contribution to a member of the Bank Group, in each case, where such subscription or contribution does not result in a Change of Control and is provided by a member of the Wider Group which is not a member of the Bank Group.

New Group Topco” means any Holding Company of the Company and/or any Holding Company of any Permitted Affiliate Parent designated as such in a Group Redesignation Notice.

New Lender” has the meaning given to such term in Clause 36.4(a) (Assignments or Transfers by Lenders).

Non-Acceptable L/C Lender” means a Lender under the Revolving Facility or an Additional Facility which is a revolving facility which the Facility Agent has determined:

 

  (a)

is not an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” (other than a Lender which each L/C Bank

 

42


  has agreed is acceptable to it notwithstanding that fact, an Original Lender or any Lender to whom a participation from an Original Lender is transferred within seven Business Days of the date of this Agreement); or

 

  (b) is a Defaulting Lender; or

 

  (c) has failed to make (or has notified the Facility Agent that it will not make) a payment to be made by it under Clause 29.10 (Lenders Indemnity) or any other payment to be made by it under the Relevant Finance Documents to or for the account of any other Relevant Finance Party in its capacity as Lender by the due date for payment unless the failure to pay falls within the description of any of those items set out at (i) and (ii) of the definition of Defaulting Lender.

Non-Consenting Lender” is a Lender which does not agree to a consent to an amendment to, or a waiver of, any provision of the Relevant Finance Documents where:

 

  (a) the Company or the Facility Agent has requested the Lenders to consent to an amendment to, or waiver, of any provision of the Relevant Finance Documents;

 

  (b) the consent or amendment in question requires the agreement of the Lenders affected thereby pursuant to Clause 42.2 (Consents) (and such Lender is one of the Lenders affected thereby);

 

  (c) Lenders representing not less than 80 per cent. of the Commitments or Outstandings, as the case may be, of the Lenders affected thereby have agreed to such consent or amendment; and

 

  (d) the Company has notified the Lender it will treat it as a Non-Consenting Lender.

Non-Funding Lender” is either:

 

  (a) a Lender which fails to comply with its obligation to participate in any Advance where:

 

  (i) all conditions to the relevant Utilisation (including without limitation, delivery of a Utilisation Request) have been satisfied or waived by the Instructing Group in accordance with the terms of this Agreement;

 

  (ii) Lenders representing not less than 80 per cent. of the relevant Commitments have agreed to comply with their obligations to participate in such Advance; and

 

  (iii) the Company has notified the Lender that it will treat it as a Non-Funding Lender;

 

  (b) a Lender which has given notice to a Borrower or the Facility Agent that it will not make, or it has disaffirmed or repudiated any obligation to participate in, an Advance; or

 

43


  (c) a Defaulting Lender.

Obligors” means the Borrowers and the Guarantors and “Obligor” means any of them.

Obligors Agent” means the Company in its capacity as agent for the Parent and the Obligors pursuant to Clause 29.16 (Obligors Agent).

Operational Expenditure” means any expenditure which is or will be treated as operational expenditure in the financial statements of the Bank Group prepared in accordance with the Relevant Accounting Principles and delivered to the Facility Agent pursuant to Clauses 23.2(a)(ii) (Financial information).

Optional Currency” means, in relation to any Advance, any currency other than euro, Dollars and Sterling which:

 

  (a) is readily available to banks in the London interbank market, and is freely convertible into Sterling on the Quotation Date and the Utilisation Date for the relevant Advance; and

 

  (b) has been approved by the Facility Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Facility Agent of the relevant Utilisation Request.

Original Company” has the meaning given to such term in paragraph (j) of the definition of Permitted Acquisition.

Original Entity” has the meaning given to such term in Clause 23.12 (Acquisitions and mergers).

Original Financial Statements” means the audited consolidated financial statements of the Company prepared in accordance with GAAP for the financial year ended 31 December 2012.

Original Lender” means a person (including each L/C Bank and each Ancillary Facility Lender) which is named in Part 1 of Schedule 1 (Lenders and Commitments).

Original Security Documents” means the security documents listed in Schedule 10 (Original Security Documents).

Outstanding L/C Amount” means each sum paid or payable by an L/C Bank to a Beneficiary pursuant to the terms of a Documentary Credit, which has not been reimbursed or in respect of which cash cover has not been provided by or on behalf of a relevant Borrower.

Outstandings” means, at any time, the Term Facility Outstandings, the Revolving Facility Outstandings, the Additional Facility Outstandings and any Ancillary Facility Outstandings.

Paper Form Lender” has the meaning given to such term in Clause 39.3(b) (Use of Websites/E-mail).

 

44


Parent Debt” means any Financial Indebtedness of the Parent, any Permitted Affiliate Holdco or one or more of their Subsidiaries (other than a member of the Bank Group) in the form of:

 

  (a) High Yield Notes; and/or

 

  (b) any Financial Indebtedness incurred after the Signing Date where the incurrence of such Financial Indebtedness would not result in the ratio (giving effect to such incurrence and the ultimate use of proceeds thereof, which shall not include any cash balances) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to any Permitted Payments) exceeding a Total Net Debt to Annualised EBITDA ratio of 5.50:1,

provided that, in respect of any such Financial Indebtedness incurred after the Signing Date, such Financial Indebtedness is designated as “Parent Debt” by written notice from the Company to the Facility Agent and the Security Trustee by the date when the consolidated financial statements are due to be provided pursuant to Clause 23.2 (Financial information) for the first full Financial Quarter after such incurrence.

Parent Entity” means

 

  (a) the Ultimate Parent;

 

  (b) any Subsidiary of the Ultimate Parent of which the Company or any Permitted Affiliate Parent is a Subsidiary (including, for the avoidance of doubt, the Spin Parent and any Subsidiary of the Spin Holdco following any Spin-Off); and

 

  (c) any Joint Venture Parent, any Subsidiary of the Joint Venture Parent and any Parent Joint Venture Holders following any Parent Joint Venture Transaction.

Parent Intercompany Debt” means any Financial Indebtedness owed by any member of the Bank Group to the Ultimate Parent or to its Subsidiaries (other than another member of the Bank Group) from time to time and:

 

  (a) which is subordinated to the Facilities pursuant to the terms of the Group Intercreditor Agreement and the HYD Intercreditor Agreement;

 

  (b) if not already subject to Security created under the Original Security Documents, Security in favour of the Security Trustee on terms satisfactory to the Security Trustee is promptly granted by the relevant creditor over its rights; and

 

  (c) if such Financial Indebtedness is in form of a guarantee, then such guarantee is not given by any member of the Bank Group other than the Company and/or Intermediate Holdco provided that any such guarantee so provided is (i) on subordination and release terms substantially the same as the existing guarantees of the Company and Intermediate Holdco in favour of the Existing High Yield Notes and (ii) subject to the terms of the HYD Intercreditor Agreement or Supplemental HYD Intercreditor Agreement.

 

45


Parent Joint Venture Holders” means the holders of the share capital of the Joint Venture Parent.

Parent Joint Venture Transaction” means a transaction pursuant to which a joint venture is formed by the contribution of some or all of the assets of a Holding Company of any member of the Bank Group or issuance or sale of shares of a Holding Company of any member of the Bank Group to one or more entities which are not Affiliates of the Ultimate Parent.

Participating Employer” means the Company and any members of the Bank Group which participate, or have at any time participated, in a UK Pension Scheme.

Participating Member State” means any member of the European Community that at the relevant time has the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

Party” means a party to this Agreement.

Patriot Act” has the meaning given to such term in Clause 39.7 (Patriot Act).

PAYE” means The Pay As You Earn System provided for at Part 11 Income Tax (Earnings and Pensions) Act 2003 and related regulations, as also extended to the collection of National Insurance Contributions.

Paying Lender” has the meaning given to such term in Clause 6.3(g) (Ancillary Facility Default).

Pensions Regulator” means the body corporate established under Part 1 of the Pensions Act 2004.

Permitted Acquisition” means:

 

  (a) any Acquisition of a member of the Bank Group by any other member of the Bank Group as part of the solvent reorganisation of the Bank Group;

 

  (b) any Acquisition or purchase of further share capital or equivalent by a member of the Bank Group in any existing member of the Bank Group;

 

  (c) any Acquisition or purchase of further share capital (or equivalent) in any person in respect of which a member of the Bank Group owns less than a 50 per cent. interest in the share capital or equivalent of such person in the event that the deliverables set out in sub-paragraphs (A) and (B) of paragraph (c)(ii) of the definition of Permitted Joint Venture have previously been delivered to the Facility Agent in connection with the acquisition of any share capital (or equivalent) in such person at any time;

 

  (d) the purchase of or investment in Cash Equivalent Investments or Marketable Securities (including without limitation by way of consideration in respect of any disposal as contemplated in the proviso to Clause 23.11 (Disposals) and subject to the conditions set out therein);

 

46


  (e) the incorporation of a company or the acquisition of an “off-the-shelf” company which is or becomes a member of the Bank Group;

 

  (f) any acquisition by any member of the Bank Group in connection with a disposal permitted by the provisions of Clause 23.11 (Disposals) and any acquisition or subscription by a member of the Bank Group of shares issued by a Subsidiary of the Company, a Subsidiary of any Permitted Affiliate Parent or a Subsidiary of Virgin Media Communications which in any such case, is a member of the Bank Group which will, after the acquisition of such shares become a wholly-owned direct or indirect Subsidiary of the Company, a Subsidiary of any Permitted Affiliate Parent or a Subsidiary of Virgin Media Communications as the case may be, provided that if the other shares of such Subsidiary are subject to existing Security and if such shares are required to remain subject to Security in order to comply with the 80% Security Test pursuant to Clause 23.26(b)(i) (Further Assurance), either (i) such newly issued shares shall also be subject to Security (in form and substance substantially similar to any existing Security or otherwise in such form and substance as may be reasonably required by the Facility Agent) upon their issue or (ii) such shares shall be made subject to Security (in form and substance substantially similar to any existing Security or otherwise in such form and substance as may be reasonably required by the Facility Agent) within 10 Business Days of their issue;

 

  (g) any acquisition made by a member of the Bank Group pursuant to the implementation of an Asset Passthrough or a Funding Passthrough;

 

  (h) any acquisition by any member of the Bank Group of any loan receivable, security or other asset by way of capital contribution or in consideration of the issue of any securities or of Subordinated Funding;

 

  (i) the acquisition of any leasehold interest in any assets which are the subject of a sale and leaseback permitted by the provisions of Clause 23.11(b) (Disposals);

 

  (j) arising from the conversion of any company (the “Original Company”) from one form of organisation into another form of organisation provided that (i) if, prior to the time of such conversion, the Security Trustee has the benefit of Security over the shares of such Original Company or such Original Company is an Obligor, then the Company shall ensure that the Security Trustee is provided with Security over the equivalent ownership interests in, and substantially all of the assets of, the converted organisation, of at least an equivalent nature and ranking to the Security previously provided by the Original Company and (ii) the Security Trustee is satisfied that any possibility of the additional Security referred to in this paragraph (j) being challenged or set aside is not greater than any such possibility in relation to the Security entered into by or in respect of the share capital of the Original Company;

 

  (k)

any acquisition by any member of the Bank Group of any High Yield Notes provided that an amount equal to the purchase price paid for the acquisition of any such High Yield Notes could have been used by such member of the Bank Group to fund a Permitted Payment and provided further that to the extent any

 

47


  such acquisition is made in reliance on any basket amount provided for under the definition of “Permitted Payments”, such amount shall be reduced by an amount equal to the consideration paid for any such acquisition;

 

  (l) investments in any Asset Securitisation Subsidiary in connection with any asset securitisation programme or receivables factoring transaction that is reasonably necessary or advisable (in the reasonable judgment of the board of directors or governing body of the relevant person) to effect such asset securitisation programme or receivables factoring transaction;

 

  (m) any Acquisition where, upon completion of the Acquisition, the person acquired will be a Subsidiary of the Company, a Subsidiary of any Permitted Affiliate Parent or a Subsidiary of another member of the Bank Group where the Company or such other member of the Bank Group will own directly or indirectly greater than a 50 per cent. interest in the asset or assets constituting the acquired business (a “Majority Acquisition”) and where:

 

  (i) the business of the acquired entity or the business acquired, as the case may be, is substantially of the same nature as the Business and would not result in the Company or any Obligor or any other member of the Bank Group being in violation of any applicable law, directive, national statute or administrative regulation relating to money-laundering, unlawful financial activities or unlawful use or appropriation of corporate funds including economic or financial sanctions or trade embargoes imposed by the US (including those administered by the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”) or equivalent European Union measure);

 

  (ii) in the case of any Majority Acquisition where the Acquisition Cost is £250,000,000 or greater (excluding, for the purposes of this paragraph (m)(ii), the value of any consideration for such Acquisition payable in cash other than the proceeds of a Utilisation of an Additional Facility or any other incurrence of debt which ranks pari passu in right of payment with the Facilities under the Group Intercreditor Agreement), the Company delivers to the Facility Agent within 60 days of the date of any such Majority Acquisition:

 

  (A) the most recent six months management accounts of or relating to the Target, together with a certificate signed an authorised signatory of the Company certifying the amount of the Cash Flow of the Target for the most recent six months and setting out the supporting calculations;

 

  (B)

a certificate signed by an authorised signatory of the Company which certifies that, if the ratio of Senior Net Debt to Annualised EBITDA of the Bank Group is calculated for the most recent Ratio Period ending prior to the date of the Acquisition for which financial statements have been delivered

 

48


  pursuant to Clause 23.2 (Financial information) (the “Relevant Ratio Period”) but adding to the:

 

  (1) amount of Senior Net Debt used in such calculation any net increase in the Senior Net Debt of the Bank Group since the end of the Relevant Ratio Period or subtracting from the amount of Senior Net Debt used in such calculation any net deduction in the Senior Net Debt of the Bank Group (in each case taking into account the amount of Senior Net Debt used to fund the Acquisition Cost and not taking into account the cash proceeds of any incurrence of Senior Debt used to fund the Acquisition Cost); and

 

  (2) Annualised EBITDA of the Bank Group, the Annualised EBITDA of the Target for the Relevant Ratio Period,

that ratio would be equal or less than 4.50:1;

 

  (n) the UPC Ireland Acquisition;

 

  (o) any purchase or acquisition of any assets in the ordinary course of business;

 

  (p) any acquisition of tax losses pursuant to a Permitted Payment made pursuant to Clauses 23.14(c)(iii) or 23.14(c)(xxxiv) of this Agreement; and

 

  (q) acquisitions not falling within paragraphs (a) to (p) above provided that the aggregate consideration for the acquisitions permitted by this paragraph (q) shall not exceed the greater of (i) £300,000,000 and (ii) five per cent. of Total Assets in any financial year.

All references in this definition to Sterling or £ shall, where applicable, mean the equivalent in any other currency, converted to Sterling, based on the Facility Agent’s Spot Rate of Exchange at the relevant time.

Permitted Affiliate Group Designation Date” means any date on which the Facility Agent provides confirmation to the Company that the conditions set out in Clause 25.1 (Permitted Affiliate Group Designation) are satisfied.

Permitted Affiliate Holdco” means the immediate Holding Company of any Permitted Affiliate Parent and any other Holding Company of any Permitted Affiliate Parent that is an issuer of, or has otherwise incurred, Parent Debt and, in each case, which is a Subsidiary of the Common Holding Company.

Permitted Affiliate Parent” has the meaning given to such term in Clause 25.1 (Permitted Affiliate Group Designation).

Permitted Credit Facility” means one or more of any Facility or any other debt facilities or arrangements that may be entered into by any member of the Bank Group providing for credit loans, letters of credit or other indebtedness or other advances, in each case, incurred in compliance with this Agreement.

Permitted Disposal” has the meaning given to it in Clause 23.11 (Disposals).

 

49


Permitted Financial Indebtedness” has the meaning given to it in Clause 23.13 (Restrictions on Financial Indebtedness).

Permitted Financing Action” means, to the extent that any incurrence of Financial Indebtedness is permitted under Clause 23.13 (Restrictions of Financial Indebtedness) of this Agreement, any transaction to facilitate or otherwise in connection with a cashless rollover of one or more lenders’ or investors’ commitments or funded Financial Indebtedness in relation to the incurrence of such Financial Indebtedness.

Permitted Joint Venture” means:

 

  (a) any Acquisition referred to in paragraph (a) of the definition of “Permitted Acquisition” and any Acquisition as a result of a reorganisation of a person that is not a Subsidiary of the Company or a Subsidiary of any Permitted Affiliate Parent but in which a member of the Bank Group has an interest, provided that such reorganisation does not result in an overall increase in the value of the Bank Group’s interest in that person, other than adjustments to the basis of any member of the Bank Group’s interest in accordance with the Relevant Accounting Principles; or

 

  (b) the acquisition of any interest in or any investment in, any Joint Venture constituting a Business Division Transaction;

 

  (c) any Acquisition where, upon completion of the Acquisition, the person acquired will not be a Subsidiary of the Company, a Subsidiary of any Permitted Affiliate Parent or a Subsidiary of any other member of the Bank Group where the Company or another member of the Bank Group will own directly or indirectly no more than a 50 per cent. interest in the asset or assets constituting the acquired business (a “JV Minority Acquisition”) and where:

 

  (i) the business of the acquired entity or the business acquired, as the case may be, is of substantially the same nature as the Business;

 

  (ii) in the case of any JV Minority Acquisition where the Acquisition Cost is £250,000,000 or greater (excluding, for the purposes of this paragraph (c)(ii), the value of any consideration for such Acquisition payable in cash other than the proceeds of a Utilisation of an Additional Facility or any other incurrence of debt which ranks pari passu in right of payment with the Facilities under the Group Intercreditor Agreement), the Company delivers to the Facility Agent within 60 days of the date of any such JV Minority Acquisition:

 

  (A) the most recent six months management accounts of or relating to the Target, together with a certificate signed by an authorised signatory of the Company certifying the amount of the Cash Flow of the Target for the most recent six months and setting out the supporting calculations; and

 

  (B)

a certificate signed by an authorised signatory of the Company which certifies that (x) no Default has occurred and is continuing or would be caused by the JV Minority Acquisition

 

50


  and (y) if the ratio of Senior Net Debt to Annualised EBITDA of the Bank Group is calculated for the most recent Ratio Period ending prior to the date of the Acquisition for which financial statements have been delivered pursuant to Clause 23.2 (Financial information) (the “Relevant Ratio Period”) but adding to the:

 

  (1) amount of Senior Net Debt used in such calculation any net increase in the Senior Net Debt of the Bank Group since the end of the Relevant Ratio Period or subtracting from the amount of Senior Net Debt used in such calculation any net deduction in the Senior Net Debt of the Bank Group since the end of the Relevant Ratio Period (in each case taking into account the amount of Senior Net Debt used to fund the Acquisition Costs); and

 

  (2) Annualised EBITDA of the Bank Group, the Annualised EBITDA of the Target for the Relevant Ratio Period,

that ratio would be equal to or less than 4.50:1.

All references in this definition to Sterling or £ shall, where applicable, mean the equivalent in any other currency, converted to Sterling, based on the Facility Agent’s Spot Rate of Exchange at the relevant time.

Permitted Payment” has the meaning given to it in Clause 23.14(c) (Restricted Payments).

Permitted Security Interest” has the meaning given to it in Clause 23.8(b) (Negative pledge).

Permitted Transaction” means:

 

  (a) any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security given, or other transaction arising, under the Finance Documents;

 

  (b) the solvent liquidation or reorganisation of any member of the Group which is not an Obligor so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Group;

 

  (c) transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arm’s length terms;

 

  (d) any payments or other transactions contemplated by the Structure Memorandum or the Funds Flow Memorandum;

 

  (e) the UPC Ireland Acquisition;

 

51


  (f) the Post-Closing Reorganisation;

 

  (g) the Spin-Off;

 

  (h) any internal corporate reorganization reasonably required in connection with, or to effect, any asset securitisation programme or a receivables factoring transaction; or

 

  (i) any transaction with the prior consent of the Instructing Group.

Plan” means an employee benefit plan as defined in section 3(3) of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute by) any member of the Bank Group or an ERISA Affiliate, and each such plan for the five year period immediately following the latest date on which any member of the Bank Group or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan.

Post-Closing Reorganisation” has the meaning given to such term in Clause 12.1 (Change of Control)

Predecessor Obligor” has the meaning given to such term in Clause 23.31 (Internal Reorganisations).

Proceedings” has the meaning given to such term in Clause 46.1 (Courts).

Project Company” means a Subsidiary of a company (or a person in which such company has an interest) which has a special purpose and whose creditors have no recourse to any member of the Bank Group in respect of Financial Indebtedness of that Subsidiary or person, as the case may be, or any of such Subsidiary’s or person’s Subsidiaries (other than recourse to such member of the Bank Group who had granted a Security Interest over its shares or other interests in such Project Company beneficially owned by it provided that such recourse is limited to an enforcement of such a Security Interest).

Proportion” in relation to a Lender, means:

 

  (a) in relation to an Advance to be made under this Agreement, the proportion borne by such Lender’s Available Commitment in respect of the relevant Facility, the relevant Borrowers and the relevant currency to the relevant Available Facility;

 

  (b) in relation to an Advance or Advances outstanding under this Agreement, the proportion borne by such Lender’s share of the Sterling Amount of such Advance or Advances to the total Sterling Amount thereof;

 

  (c) if paragraph (a) above does not apply and there are no Outstandings, the proportion borne by the aggregate of such Lender’s Available Commitment to the Available Facilities (or if the Available Facilities are then zero, by its Available Commitment to the Available Facilities immediately prior to their reduction to zero); and

 

52


  (d) if paragraph (b) above does not apply and there are any Outstandings, the proportion borne by such Lender’s share of the Sterling Amount of the Outstandings to the Sterling Amount of all the Outstandings for the time being.

Protected Party” means a Relevant Finance Party or any Affiliate of a Relevant Finance Party which is or will be, subject to any Tax Liability in relation to any amount payable under or in relation to a Relevant Finance Document.

Qualifying UK Lender” means in relation to a payment of interest on a participation in an Advance to a UK Borrower, a Lender which is:

 

  (a) a UK Bank Lender;

 

  (b) a UK Non-Bank Lender; or

 

  (c) a UK Treaty Lender.

Quarter Date” means each of 31 March, 30 June, 30 September and 31 December in each financial year of the Company.

Quotation Date” means, in relation to any currency and any period for which an interest rate is to be determined:

 

  (a) if the relevant currency is Sterling, the first day of that period;

 

  (b) if the relevant currency is euro, two TARGET Days before the first day of that period; or

 

  (c) in relation to any other currency, two Business Days before the first day of that period,

provided that if market practice differs in the Relevant Interbank Market for a currency, the Quotation Date for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Date will be the last of those days).

Ratio Period” has the meaning given to it in Clause 22.1 (Financial definitions).

Receivables Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a person that is not an Asset Securitisation Subsidiary in connection with, any asset securitisation programme or receivables factoring transaction.

Recipient” has the meaning given to it in Clause 37.7 (Value Added Tax).

Recovering Relevant Finance Party” has the meaning given to such term in Clause 34.1 (Payments to Relevant Finance Parties).

 

53


Reference Bank Quotation” means any quotation supplied to the Facility Agent by a Reference Bank or an Alternative Reference Bank.

Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks:

 

  (a) in relation to LIBOR:

 

  (i) (other than where paragraph (ii) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or

 

  (ii) if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or

 

  (b) in relation to EURIBOR:

 

  (i) (other than where paragraph (ii) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or

 

  (ii) if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.

Reference Banks” means, subject to Clause 42.11 (Reference Banks and Alternative Reference Banks), the principal London offices of Barclays Bank PLC, BNP Paribas and Deutsche Bank AG, London Branch.

Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or any portion thereof.

Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or any portion thereof.

Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or any portion thereof.

Regulatory Authority Disposal” means any direct or indirect sale, lease, transfer, issuance or distribution of any part of a present or future undertaking, shares, property, rights, remedies or other assets by one or a series of transactions related or not (each referred to for the purposes of this definition as a “disposal”) by any member of the Bank Group to another member of the Bank Group or any other

 

54


person, provided that such disposal is required by a regulatory authority or court of competent jurisdiction or such disposal is made in response to concerns raised by a regulatory authority or court of competent jurisdiction.

Relevant Accounting Principles” means GAAP, or, if at the relevant time IFRS has been adopted in accordance with Clause 23.4 (Change in Accounting Practices), IFRS.

Relevant Event” means a Default in relation to Clause 26.2 (Non-payment).

Relevant Finance Documents” means:

 

  (a) this Agreement, any Documentary Credit, any Accession Notice, any Transfer Deed and any Transfer Agreement;

 

  (b) the Fee Letters;

 

  (c) the Commitment Letter;

 

  (d) any Ancillary Facility Documents;

 

  (e) the Security Documents;

 

  (f) the Security Trust Agreement;

 

  (g) the Group Intercreditor Agreement;

 

  (h) the HYD Intercreditor Agreement and any Supplemental HYD Intercreditor Agreement;

 

  (i) the Barclays Intercreditor Agreement;

 

  (j) the Hedging Agreements [entered into with a Hedge Counterparty] permitted or not prohibited by this Agreement;

 

  (k) each Additional Facility Accession Deed;

 

  (l) each Utilisation Request;

 

  (m) any Resignation Letter; and

 

  (n) any other agreement or document designated a “Relevant Finance Document” in writing by the Facility Agent and the Company.

Relevant Finance Parties” means the Facility Agent, the Arrangers, the Bookrunners, the Security Trustee, the Lenders, each Hedge Counterparty and “Relevant Finance Party” means any of them.

Relevant Interbank Market” means, in relation to euro, the European Interbank Market and in relation to any other currency, the London interbank market therefor.

 

55


Relevant Tax Jurisdiction” means:

 

  (a) the United Kingdom, in relation to a UK Borrower; and

 

  (b) any jurisdiction in which any person is liable to tax by reason of its domicile, residence, place of management or other similar criteria (but not any jurisdiction in respect of which that person is liable to tax by reason only of its having a source of income in that jurisdiction).

Renewal Request” means, in relation to a Documentary Credit, a Utilisation Request therefor, in respect of which the proposed Utilisation Date stated in it is the Expiry Date of an existing Documentary Credit and the proposed Sterling Amount is the same or less than the Sterling Amount of that existing Documentary Credit.

Repayment Date” means:

 

  (a) in relation to any Revolving Facility Advance, the last day of its Term;

 

  (b) in respect of the Additional Facility Outstandings on the relevant Final Maturity Date,

provided that if any such day is not a Business Day in the relevant jurisdiction for payment, the Repayment Date will be the next succeeding Business Day in the then current calendar month (if there is one) or the preceding Business Day (if there is not).

Repeating Representations” means the representations and warranties which are repeated as set out in Clause 21.30(a) (Times for making representations and warranties).

Reportable Event” means:

 

  (a) an event specified as such in section 4043 of ERISA or any regulation, other than an event in relation to which the requirement to give notice of that event is waived by any regulation; or

 

  (b) a failure to meet the minimum funding standard under section 412 of the Code or section 302 of ERISA, whether or not there has been any waiver of notice or waiver of the minimum funding standard under section 412 of the Code.

Reporting Entity” means:

 

  (a) prior to any Permitted Affiliate Group Designation Date, the Company, Virgin Media Inc. or any other Holding Company of the Company notified by the Company to the Facility Agent; and

 

  (b) on or following any Permitted Affiliate Group Designation Date, the Common Holding Company or any other Holding Company of the Common Holding Company notified by the Company to the Facility Agent;

Resignation Letter” means a letter substantially in the form set out in Schedule 17 (Form of Resignation Letter).

 

56


Restricted Guarantors” means:

 

  (a) each of the Original Guarantors listed in Part 1 of Schedule 2 (The Original Guarantors); and

 

  (b) any other Guarantor that accedes to this Agreement pursuant to Clause 25.3 (Acceding Guarantors), which is (i) incorporated, created or organised under the laws of the United States or any State of the United States (including the District of Columbia) and is a “United States person” (as defined in Section 7701(a)(30) of the Code); or (ii) treated for US federal income tax purposes as a disregarded entity that is a branch of a Guarantor described in paragraph (b)(i) hereof.

Restricted Payment” has the meaning given to it in Clause 23.14 (Restricted Payments).

Restricted Person” means the Ultimate Parent (or any successor thereof), any other company (not being a member of the Bank Group) which is a Subsidiary of, or an Associated Company of, the Ultimate Parent (or any successor thereof) (other than Associated Companies of the Ultimate Parent which are its Associated Companies by virtue of controlling the Ultimate Parent (or any successor thereof) or owning beneficially and/or legally directly or indirectly 10 per cent. or more of the equity interests in the Ultimate Parent (or any successor thereof)) and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of the Joint Venture Parent and any Parent Joint Venture Holders.

Restricted Subsidiary” means any Subsidiary of the Company or any Subsidiary of any Permitted Affiliate Parent, other than an Unrestricted Subsidiary, together with ntl Glasgow, ntl Kirklees and any other Subsidiary of Virgin Media Communications that is a member of the Bank Group.

Revised Definitions has the meaning given to it in Clause 23.4(c)(iv) (Change in Accounting Practices).

Revised Ratios has the meaning given to it in Clause 23.4(c)(iv) (Change in Accounting Practices).

Revolving Credit Commitments means any Revolving Facility Commitment and any Commitment for Additional Facilities that are revolving loan facilities.

Revolving Facility” means the revolving loan facility (including any Ancillary Facility and the Documentary Credit facility) granted to the relevant Borrower pursuant to Clause 2.1 (The Facilities).

Revolving Facility Instructing Group” means:

 

  (a) before any Utilisation of the Revolving Facility under this Agreement, a Lender or group of Lenders whose Available Revolving Facility Commitments amount in aggregate to more than 50 per cent. of the Available Revolving Facility; and

 

  (b) thereafter, a Lender or group of Lenders to whom in aggregate more than 50 per cent. of the aggregate amount of the Revolving Facility Outstandings are (or if there are no Revolving Facility Outstandings at such time, immediately prior to their repayment, were then) owed,

 

57


in each case calculated in accordance with the provisions of Clause 42.10 (Calculation of Consent) and provided that the “Revolving Facility Instructing Group” as used in Clause 4.1(j)(i) (Conditions to Utilisation) in relation to a Rollover Advance in respect of an Additional Facility Advance in relation to a revolving facility shall mean a Lender or group of Lenders to whom in aggregate more than 50 per cent. of the aggregate amount of that Additional Facility Advance is owed calculated in accordance with the provisions of Clause 42.10 (Calculation of Consent).

Revolving Facility Margin” means, in relation to Revolving Facility Advances, 2.75 per cent. per annum.

Revolving Facility Outstandings” means, at any time, the aggregate outstanding amount of each Revolving Facility Advance and of each Lender under the Revolving Facility’s participation in an Outstanding L/C Amount.

Rollover Advance” has the meaning given to such term in Clause 8.2 (Rollover Advances).

Screen Rate” means:

 

  (a) in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

 

  (b) in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),

or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may (following consultation with the Company and the Lenders) specify another page or service displaying the relevant rate.

SEC” means the United States Securities and Exchange Commission.

Security” means the Security Interests created or purported to be created pursuant to the Security Documents.

Security Documents” means:

 

  (a) each of the Original Security Documents;

 

58


  (b) any security documents required to be delivered by an Acceding Obligor pursuant to Clauses 25.2 (Acceding Borrowers) and 25.3 (Acceding Guarantors);

 

  (c) any other document executed at any time by any member of the Group conferring or evidencing any Security Interest for or in respect of any of the obligations of the Obligors under this Agreement whether or not specifically required by this Agreement; and

 

  (d) any other document executed at any time pursuant to Clause 23.26 (Further Assurance) or any similar covenant in any of the Security Documents referred to in paragraphs (a) to (c) above.

Security Interest” means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment by way of security, trust arrangement for the purpose of providing security or other security interest of any kind securing any obligation of any person or any other arrangement having the effect of conferring rights of retention or other disposal rights over an asset (including without limitation title transfer and/or retention arrangements having a similar effect or a deposit of money with the primary intention of affording a right of set-off) and includes any agreement to create any of the foregoing but does not include (a) liens arising in the ordinary course of business by operation of law and not by way of contract and (b) any grant of indefeasible rights of use or equivalent arrangements with respect to network capacity, communications, fibre capacity or conduit.

Security Trust Agreement” means the security deed dated 3 March 2006 between, among others, each Obligor, the Facility Agent and the Security Trustee (each as defined therein) as amended from time to time.

Senior Net Debt” has the meaning given to it in Clause 22.1 (Financial definitions).

Senior Secured Notes” means the Existing Senior Secured Notes, any Additional Senior Secured Notes and any Senior Secured Notes Refinancing.

Senior Secured Notes Documents” means any Senior Secured Notes, the SSN 2011 Indenture, the SSN 2013 Indenture and any other indenture for any Senior Secured Notes, the Group Intercreditor Agreement, the HYD Intercreditor Agreement, any guarantee given by any member of the Group in respect of any Senior Secured Notes, any security documents granting security in favour of the holders of any Senior Secured Notes (or any trustee for such holders or security agent or trustee for such holders or trustee), any note depository agreement, any fee letter and any indemnity letter in relation thereto.

Senior Secured Notes Refinancing” means any notes issued by the Parent, any Permitted Affiliate Parent, the Company or any SSN Finance Subsidiary for the purposes of refinancing all or a portion of (i) the Senior Secured Notes or (ii) the Facilities or (iii) any other Financial Indebtedness of the Bank Group which is secured and ranks pari passu as to right of payment with the Facilities pursuant to and in compliance with the terms of the Group Intercreditor Agreement (provided, in each case of (i) to (iii) above that such Financial Indebtedness being refinanced would have been permitted to be incurred at the time of issuance of any such notes), in each case,

 

59


outstanding from time to time (including all fees, expenses, commissions, make-whole and any other contractual premium payable under such Financial Indebtedness being refinanced and any reasonable fees, costs and expenses incurred in connection with such refinancing) and designated as “Senior Secured Notes Refinancing” by written notice from the Company to the Facility Agent and the Security Trustee by the date when the consolidated financial statements are due to be provided pursuant to Clause 23.2 (Financial information) for the first full Financial Quarter after the issuance of the relevant notes, in respect of which the following terms apply:

 

  (a) the principal amount of any such notes shall not exceed the principal amount of, and any outstanding interest on, the Financial Indebtedness being refinanced (plus all fees, expenses, commissions, make-whole or other contractual premium payable in connection with such refinancing); and

 

  (b) such notes satisfy the requirements of paragraphs (a), (b), (c), (d) and (e) of the definition of Additional Senior Secured Notes.

Sharing Payment” has the meaning given to such term in Clause 34.1(c) (Payments to Relevant Finance Parties).

Signing Date” means the date of this Agreement.

Solvent Liquidation” has the meaning given to such term in Clause 23.31 (Internal Reorganisations).

Specified Time” means a time determined in accordance with Schedule 18 (Timetable).

SSN 2011 Indenture” means the indenture dated as of March 3, 2011 among Virgin Media Secured Finance PLC as issuer, The Bank of New York Mellon as trustee and paying agent and the other parties thereto as amended from time to time.

SSN 2013 Indenture” means the indenture dated as of February 22, 2013 among Lynx I Corp as issuer, The Bank of New York Mellon as trustee and paying agent and the other parties thereto as amended from time to time.

SSN Finance Subsidiary” means:

 

  (a) Virgin Media Secured Finance PLC; and

 

  (b) any other Subsidiary directly and wholly-owned by either:

 

  (i) the Company engaged in the business of effecting or facilitating the issuance of Senior Secured Notes and on-lending the proceeds to the Company;

 

  (ii) the Parent engaged in the business of effecting or facilitating the issuance of Senior Secured Notes and on-lending the proceeds to the Parent and/or the Company; or

 

60


  (iii) any Permitted Affiliate Parent engaged in the business of effecting or facilitating the issuance of Senior Secured Notes and on-lending the proceeds to any other member of the Bank Group,

and in each case having no Subsidiaries.

Standard & Poors” means Standard & Poor’s Ratings Group or any successor thereof.

Sterling Amount” means at any time:

 

  (a) in relation to an Advance denominated in Sterling, the amount thereof, and in relation to any other Advance, the Sterling equivalent of the amount specified in the Utilisation Request (as at the date thereof) for that Advance, in each case, as adjusted, if necessary, in accordance with the terms of this Agreement and to reflect any repayment, consolidation or division of that Advance;

 

  (b) in relation to a Documentary Credit, (i) if such Documentary Credit is denominated in Sterling, the Outstanding L/C Amount in relation to it at such time or (ii) if such Documentary Credit is not denominated in Sterling, the equivalent in Sterling of the Outstanding L/C Amount at such time, calculated as at the later of (A) the date which falls two Business Days before its issue date or any renewal date or (B) the date of any revaluation pursuant to Clause 5.5 (Revaluation of Documentary Credits);

 

  (c) in relation to any Ancillary Facility granted by a Lender, the amount of its Revolving Facility Commitment or Additional Facility Commitment converted to provide its Ancillary Facility Commitment as at the time of such conversion; and

 

  (d) in relation to any Outstandings, the aggregate of the Sterling Amounts (calculated in accordance with paragraphs (a), (b) and (c) above) of each outstanding Advance and/or Outstanding L/C Amount, made under the relevant Facility or Facilities (as the case may be) and/or in relation to Ancillary Facility Outstandings, (i) if such Outstandings are denominated in Sterling, the aggregate amount of such Outstandings at such time and (ii) if such Outstandings are not denominated in Sterling, the Sterling equivalent of the aggregate amount of such Outstandings at such time.

Structure Memorandum” means the structure paper entitled “Virgin Media Inc -Liberty Global, Inc. Acquisition and Holding Structure” describing the Wider Group and the Merger and prepared by Liberty Global, Inc. and delivered by the Company to the Facility Agent pursuant to this Agreement.

Subject Party” has the meaning given to it in Clause 37.7(d) (Value Added Tax).

Subordinated Funding” means any Financial Indebtedness made available to any member of the Bank Group by any member of the Wider Group that is not a member of the Bank Group which:

 

  (a) constitutes Parent Intercompany Debt;

 

61


  (b) is an intercompany loan existing as at 16 March 2010 (including any inter-company loan the benefit of which has, at any time after the 16 March 2010, been assigned to any other member of the Wider Group, where such assignment is not otherwise prohibited by this Agreement); or

 

  (c) constitutes Equity Equivalent Funding,

provided that:

 

  (i) if not already subject to Security, Security in favour of the Security Trustee on terms satisfactory to the Security Trustee is promptly granted by the relevant creditor over its rights with respect to any such Financial Indebtedness; and

 

  (ii) the relevant debtor and creditor are party to the Group Intercreditor Agreement and the HYD Intercreditor Agreement as an Intergroup Debtor or Intergroup Creditor (as such terms are defined in the Group Intercreditor Agreement and the HYD Intercreditor Agreement), as applicable, or where the relevant debtor and creditor are party to such other subordination arrangements as may be satisfactory to the Facility Agent, acting reasonably.

Subscriber” means any person who has entered into an agreement (which has not expired or been terminated) with an Obligor to be provided with services by an Obligor through the operation of telecommunications and/or television systems operated by the Bank Group in accordance with applicable Telecommunications, Cable and Broadcasting Laws (including any part of such system and all modifications, substitutions, replacements, renewals and extensions made to such systems).

Subsidiary” of a person means any company or entity directly or indirectly controlled by such person, for which purpose control means ownership of more than 50 per cent. of the economic and/or voting share capital (or equivalent right of ownership of such company or entity).

For the purposes of Clause 22 (Financial Covenant) and 23.2 (Financial information) any provision of this Agreement where the financial terms defined in Clause 22 (Financial Covenant) are used, “Subsidiary” of a person includes any legal entity which is accounted for under the Relevant Accounting Principles as a Subsidiary of the first-mentioned company.

Supplemental HYD Intercreditor Agreement” means an intercreditor agreement that subordinates any guarantees granted by any member of the Bank Group in respect of any Additional High Yield Notes and/or any High Yield Refinancing on terms satisfactory to the Facility Agent or on terms substantially the same as the HYD Intercreditor Agreement.

Supplier” has the meaning given to it in Clause 37.7(d) (Value Added Tax).

Target” means any assets or entity which is or are the subject of an Acquisition in accordance with the terms of this Agreement.

 

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TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilise a single shared platform and which was launched on 19 November 2007.

TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.

Tax Cooperation Agreement” means the agreement dated 3 March 2006 between Virgin Media Inc. and Telewest Communications Networks Limited relating to arrangements in connection with, amongst other things, the payment of US taxes.

Tax Credit” means a credit against, relief or remission for, or repayment of any tax.

Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Relevant Finance Document, other than:

 

  (a) a FATCA Deduction; or

 

  (b) a deduction or withholding for or on account of any Bank Levy (or otherwise attributable to, or arising as a consequence of, a Bank Levy).

Tax Liability” has the meaning set out in Clause 17.3(e) (Tax Indemnity).

Tax on Overall Net Income” has the meaning set out in Clause 17.3(e) (Tax Indemnity).

Tax Payment” means the increase in any payment made by an Obligor to a Relevant Finance Party under Clause 17.1(c) (Tax Gross-up) or any amount payable under Clause 17.1(d) (Tax Gross-up) or under Clause 17.3 (Tax Indemnity).

Telecommunications, Cable and Broadcasting Laws” means the Telecommunications Act 1984, the Broadcasting Act 1990 (together with the Broadcasting Act 1996), the Communications Act 2003 and all other laws, statutes, regulations and judgments relating to broadcasting or telecommunications or cable television or broadcasting applicable to any member of the Bank Group, and/or the business carried on by, any member of the Bank Group (for the avoidance of doubt, not including laws, statutes, regulations or judgments relating solely to consumer credit, data protection or intellectual property).

Term” means:

 

  (a) in relation to a Revolving Facility Advance, the period for which such Advance is borrowed as specified in the relevant Utilisation Request; and

 

  (b) in relation to any Documentary Credit, the period from the date of its issue until its Expiry Date.

Term Facilities” means each Additional Facility (other than any Additional Facility which by its terms is a revolving loan facility) “Term Facility” means any of them, as the context requires.

 

63


Term Facility Advance” means any Additional Facility Advance (other than any Additional Facility Advance under any Additional Facility which by its terms is a revolving loan facility), and “Term Facility Advances” shall be construed accordingly.

Term Facility Outstandings” means, at any time, the aggregate of the Additional Facility Outstandings (other than any Additional Facility Outstandings under any Additional Facility which by its terms is a revolving loan facility) at such time.

Termination Date” means:

 

  (a) in relation to the Revolving Facility, the date which is 15 days prior to the Final Maturity Date in respect of the Revolving Facility (as applicable);

 

  (b) in relation to each Ancillary Facility, the relevant Ancillary Facility Termination Date; and

 

  (c) in relation to each Additional Facility, the Additional Facility Termination Date specified in the relevant Additional Facility Accession Deed.

Total Assets” means the consolidated total assets of the Bank Group as shown on the most recent balance sheet (excluding the footnotes thereto) of the Bank Group delivered in accordance with Clause 23.2(a)(ii) (Financial information), as applicable, (and, in the case of any determination relating to any incurrence of indebtedness or any investment, on a pro forma basis including any property or assets being acquired in connection therewith).

Total Commitments” means the aggregate of the Commitments, being £1,635,000,000 and $2,755,000,000 at the date of this Agreement, as the same may be increased in accordance with Clause 2.2 (Increase) or reduced in accordance with this Agreement.

Total Net Debt” has the meaning given to it in Clause 22.1 (Financial definitions).

Towers Assets” means:

 

  (a) all present and future wireless and broadcast towers and tower sites that host or assist in the operation of plant and equipment used for transmitting telecommunications signals, being tower and tower sites that are owned by or vested in the Company or any other member of the Bank Group and include, without limitation, any and all towers under constructions;

 

  (b) all rights, title, deposits (including, without limitation, deposits placed with landlords, electricity boards and transmission companies) and interest in, or over, the land property on which such towers and tower sites referred to in paragraph (a) above have been constructed or erected or installed;

 

  (c) all current assets relating to the towers or tower sites referred to in paragraph (a) above, whether movable, immovable or incorporeal;

 

  (d)

all plant and equipment customarily treated by telecommunications operators as forming part of the towers or tower sites referred to in paragraph (a) above,

 

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  including, in particular, but without limitation, the electricity power connections, utilities, diesel generator sets, batteries, power management systems, air conditioners, shelters and all associated civil and electrical works; and

 

  (e) all permits, licences, approvals, registrations, quotas, incentives, powers, authorities, allotments, consents, rights, benefits, advantages, municipal permissions, trademarks, designs, copyrights, patents and other intellectual property and powers of every kind, nature and description whatsoever, whether from government bodies or otherwise, pertaining to or relating to paragraphs (a) to (d) above.

Transfer Agreement” means a duly completed assignment and assumption substantially in the form set out in Schedule 6 (Form of Transfer Agreement).

Transfer Date” means, in relation to any Transfer Deed or any Transfer Agreement, the effective date of such transfer as specified in such Transfer Deed or such Transfer Agreement.

Transfer Deed” means (a) a duly completed deed of transfer and accession substantially in the form set out in Schedule 5 (Form of Transfer Deed) whereby an existing Lender seeks to transfer to a New Lender all or a part of such existing Lender’s rights, benefits and obligations under this Agreement as contemplated in Clause 36 (Assignments and Transfers) and such New Lender agrees to accept such transfer and to be bound by this Agreement and to accede to the HYD Intercreditor Agreement, the Group Intercreditor Agreement and the Security Trust Agreement or (b) for the purpose of acceding a New Lender to the HYD Intercreditor Agreement only, a duly completed Transfer Agreement whereby such New Lender agrees to accede to the HYD Intercreditor Agreement.

Transferor” has the meaning given to such term in Clause 36.8 (Limitation of Responsibility of Transferor).

UK Bank Lender” means, in relation to a payment of interest on a participation in an Advance to a Borrower, a Lender which is beneficially entitled to that payment and (a) if the participation in that Advance was made by it, is a Lender which is a “bank” (as defined for the purposes of section 879 of the ITA in section 991 of the ITA) and is within the charge to United Kingdom corporation tax as respects that payment or would be within such charge as respects such payment but for section 18A of the CTA or (b) if the participation in that Advance was made by a different person, such person was a “bank” (as defined for the purposes of section 879 of the ITA in section 991 of the ITA) at the time that Advance was made, and is a Lender which is within the charge to United Kingdom corporation tax as respects that payment.

UK Borrowers” means:

 

  (a) as at the Signing Date, each of the Original Borrowers; and

 

  (b) thereafter, each of the Original Borrowers and any Acceding Borrower that is liable to corporation tax in the United Kingdom,

 

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excluding any UK Borrower which has been liquidated in accordance with the provisions of Clause 23.31 (Internal Reorganisations) but including the relevant Successor Entity (provided it is also liable to corporation tax in the United Kingdom) thereafter, and excluding, for the avoidance of doubt, the US Borrower, and “UK Borrower” means any of them.

UK DB Schemes” has the meaning given to such term in Clause 23.23 (Pension Plans).

UK Non-Bank Lender” means, in relation to a payment of interest on an Advance to a Borrower:

 

  (a) a Lender which is beneficially entitled to the income in respect of which that payment is made and is a UK Resident company (such that the payment is within the category of excepted payments described at section 933 ITA); or

 

  (b) a Lender to which such payment would fall within one of the categories of excepted payments described at sections 934 to 937 ITA inclusive,

where H.M. Revenue & Customs has not given a direction under section 931 ITA which relates to that payment of interest on an Advance to such Borrower.

UK Pension Scheme” means a pension scheme in which any member of the Group participates or has at any time participated, and which has its main administration in the United Kingdom or is primarily for the benefit of employees in the United Kingdom.

UK Resident” means a person who is resident in the United Kingdom for the purposes of the ITA or CTA, and “non-UK Resident” shall be construed accordingly.

UK Treaty Lender” means in relation to a payment of interest on an Advance to a UK Borrower, a Lender which is entitled to claim full relief from liability to taxation otherwise imposed by such UK Borrower’s Relevant Tax Jurisdiction (in relation to that Lender’s participation in Advances made to such UK Borrower) on interest under a Double Taxation Treaty and which does not carry on business in that UK Borrower’s Relevant Tax Jurisdiction through a permanent establishment with which that Lender’s participation in that Advance is effectively connected and, in relation to any payment of interest on any Advance made by that Lender, such UK Borrower has, unless provided otherwise in an Additional Facility Accession Deed, received notification (or will have received notification prior to the end of the first Interest Period hereunder) in writing from H.M. Revenue & Customs authorising such UK Borrower to pay interest on such Advances without any Tax Deduction, including where such notification is provided as a result of the Lender using HMRC DT Treaty Passport Scheme.

Ultimate Parent” means:

 

  (a) Liberty Global PLC, together with its successors;

 

  (b) following consummation of a Spin-Off, the Spin Parent and its successors; and

 

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  (c) following consummation of a Parent Joint Venture Transaction, each of the ultimate Holding Companies of the Parent Joint Venture Holders and their successors.

United States” or “US” means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America.

Unpaid Sum” means any sum due and payable by an Obligor under any Relevant Finance Document (other than any Ancillary Facility Document) but unpaid.

Unrestricted Subsidiary” means each Subsidiary of the Company, any Subsidiary of any Permitted Affiliate Parent or any Subsidiary of Virgin Media Communications that is not an Obligor which is designated by the Company or any Permitted Affiliate Parent in writing as an Unrestricted Subsidiary.

UPC Ireland Acquisition” means the acquisition of interests in UPC Broadband Ireland B.V. or any of its Subsidiaries by a member of the Bank Group.

UPC Ireland Share Acquisition” means the acquisition of any share capital of UPC Broadband Ireland Limited (or its successor) and its Subsidiaries not already owned by the Company and its Subsidiaries.

US Borrower” means Virgin Media Bristol LLC.

US Guarantor” means any Guarantor that is a US Obligor.

US Obligor” means any Obligor, any Material Subsidiary or any member of the Bank Group which is a partnership, or a partner of any partnership, that is incorporated or formed under the laws of the United States or any State of the United States (including the District of Columbia) or that resides or has a domicile, a place of business or property in the United States.

Utilisation” means the utilisation of a Facility under this Agreement, whether by way of an Advance, the issue of a Documentary Credit or the utilisation of any Ancillary Facility.

Utilisation Date” means:

 

  (a) in relation to an Advance, the date on which such Advance is (or is requested) to be made;

 

  (b) in relation to a utilisation by way of Ancillary Facility, the date on which such Ancillary Facility is established; and

 

  (c) in relation to a utilisation by way of Documentary Credit, the date on which such Documentary Credit is to be issued, in each case,

in accordance with the terms of this Agreement.

 

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Utilisation Request” means:

 

  (a) in relation to an Advance a duly completed notice substantially in the form set out in Part 1 to Schedule 4 (Form of Utilisation Request (Advances)); or

 

  (b) in relation to a Documentary Credit, a duly completed notice substantially in the form set out in Part 2 to Schedule 4 (Form of Utilisation Request (Documentary Credits)).

Vendor” means Virgin Media Inc.

Vendor Financing Arrangements” means any arrangement, contractual or otherwise, pursuant to which credit or other financing is provided or arranged by a supplier (or any of its Affiliates) of assets (including equipment) and/or related services to a member of the Bank Group in connection with such supply of assets and/or services.

Virgin Media Communications” means Virgin Media Communications Limited, a company incorporated in England and Wales with registered number 3521915, whose registered office is at Media House, Bartley Wood Business Park, Hook, Hampshire, RG27 9UP.

VMIH Affiliate” means each of the Affiliates of Virgin Media Investment Holdings Limited, any trust of which Virgin Media Investment Holdings Limited or any of its Affiliates is a trustee, any partnership of which Virgin Media Investment Holdings Limited or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, Virgin Media Investment Holdings Limited or any of its Affiliates.

Website Lenders” has the meaning given to such term in Clause 39.3(a) (Use of Websites/E-mail).

Weighted Average Life to Maturity” means, when applied to any Financial Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining scheduled instalment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final scheduled maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Financial Indebtedness; provided that the effects of any prepayments made on such Financial Indebtedness shall be disregarded in making such calculation.

Wider Group” means:

 

  (a) the Ultimate Parent and its Subsidiaries from time to time; and

 

  (b) following consummation of a Parent Joint Venture Transaction, each of the ultimate Holding Companies of the Parent Joint Venture Holders, the Parent Joint Venture Holders and the Joint Venture Parent and, in each case, their successors and their Subsidiaries.

 

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1.2 Accounting Expressions

Unless a contrary indication appears, any reference in this Agreement to “audited consolidated accounts” or “audited consolidated financial statements” or any analogous terms shall be construed as a reference to the financial statements and such other information provided in accordance with Clause 23.2 (Financial information) as the context so requires.

 

1.3 Construction

Unless a contrary indication appears, any reference in this Agreement to:

 

  (a) any “Permitted Affiliate Parent”, any “Permitted Affiliate Holdco”, the “Parent”, the “Facility Agent”, the “Global Coordinator”, a “Mandated Lead Arranger”, a “Bookrunner”, the “Security Trustee”, a “Hedge Counterparty”, an “L/C Bank”, an “Ancillary Facility Lender” or a “Lender” shall be construed so as to include their respective and any subsequent successors, transferees and permitted assigns in accordance with their respective interests;

 

  (b) agreed form” means, in relation to any document, in the form agreed by or on behalf of the Facility Agent and the Company prior to the Signing Date;

 

  (c) assets” includes present and future properties, revenues and rights of every description;

 

  (d) company” includes any body corporate;

 

  (e) determines” or “determined” means, save as otherwise provided herein, a determination made in the absolute discretion of the person making the determination;

 

  (f) the “equivalent” on any given date in one currency (the “first currency”) of an amount denominated in another currency (the “second currency”) is a reference to the amount of the first currency which could be purchased with the second currency at the Facility Agent’s Spot Rate of Exchange at the Specified Time on the relevant date for the purchase of the first currency with the second currency or for the purposes of determining any amounts testing any covenant or determining whether an Event of Default has occurred under this Agreement:

 

  (i) in the case of any basket or threshold amount qualifying a covenant:

 

  (A) in order to determine how much of such basket or threshold has been used at any time, for each transaction entered into in reliance upon the utilisation of such basket or in reliance upon such threshold not being reached prior to such time, the date upon which such transaction was entered into; and

 

  (B) in order to determine the permissibility of a proposed transaction, on the date upon which the permissibility of that transaction is being tested for the purposes of determining compliance with that covenant; and

 

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  (ii) in the case of any basket or threshold amount relating to an Event of Default, the date on which the relevant event is being assessed for the purposes of determining whether such Event of Default has occurred,

provided that in the case of Financial Indebtedness proposed to be incurred to refinance other Financial Indebtedness denominated in a currency other than Sterling or other than the currency in which such refinanced Financial Indebtedness is denominated, if such refinancing would cause any applicable Sterling-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Sterling denominated restriction shall be deemed not to be exceeded so long as the principal amount of such refinancing Financial Indebtedness does not exceed the principal amount of such Financial Indebtedness being refinanced in the applicable currency at the then current exchange rate;

 

  (g) guarantee” means (other than in Clause 28 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

  (h) month” is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that, where any such period would otherwise end on a day which is not a Business Day, it shall end on the next succeeding Business Day, unless that day falls in the calendar month succeeding that in which it would otherwise have ended, in which case it shall end on the immediately preceding Business Day provided that, if a period starts on the last Business Day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that later month (provided that in any reference to “months” only the last month in a period shall be construed in the aforementioned manner);

 

  (i) a Lender’s “participation” in relation to a Documentary Credit, shall be construed as a reference to the relevant amount that is or may be payable by that Lender in relation to that Documentary Credit;

 

  (j) a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);

 

  (k) a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

  (l) a “repayment” shall include a “prepayment” and references to “repay” or “prepay” shall be construed accordingly;

 

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  (m) tax” shall be construed so as to include all present and future taxes, charges, imposts, duties, levies, deductions or withholdings of any kind whatsoever, or any amount payable on account of or as security for any of the foregoing, by whomsoever on whomsoever and wherever imposed, levied, collected, withheld or assessed together with any penalties, additions, fines, surcharges or interest relating to it; and “taxes” and “taxation” shall be construed accordingly;

 

  (n) VAT” shall be construed as value added tax as provided for in the Value Added Tax Act 1994 and legislation (or purported legislation and whether delegated or otherwise) supplemental to that Act or in any primary or secondary legislation promulgated by the European Community or European Union or any official body or agency of the European Community or European Union, and any tax similar or equivalent to value added tax imposed by any country other than the United Kingdom and any similar or turnover tax replacing or introduced in addition to any of the same;

 

  (o) wholly-owned Subsidiary” of a company shall be construed as a reference to any company which has no other members except that other company and that other company’s wholly-owned Subsidiaries or nominees for that other company or its wholly-owned Subsidiaries save that the following shall not constitute “other members”:

 

  (i) directors’ qualifying shares or an immaterial amount of shares required to be owned by other persons pursuant to applicable law, regulation or to ensure limited liability; and

 

  (ii) in the case of an Asset Securitisation Subsidiary, shares held by a person that is not an Affiliate of the Company solely for the purpose of permitting such person (or such person’s designee) to vote with respect to customary major events with respect to such Asset Securitisation Subsidiary, including without limitation the institution of bankruptcy, insolvency or other similar proceedings, any merger or dissolution, and any change in charter documents or other customary events;

 

  (p) the “winding-up”, “dissolution” or “administration” of a company shall be construed so as to include any equivalent or analogous proceedings under the Law of the jurisdiction in which such company is incorporated, established or organised or any jurisdiction in which such company carries on business, including the seeking of liquidation, winding up, reorganisation, dissolution, administration, arrangement, adjustment, protection from creditors or relief of debtors;

 

  (q) a Borrower providing “cash cover” for a Documentary Credit or an Ancillary Facility means that Borrower paying an amount in the currency of the Documentary Credit (or, as the case may be, Ancillary Facility) to an interest-bearing account in the name of that Borrower and the following conditions being met:

 

  (i) the account is with the Security Trustee or with the L/C Bank or Ancillary Facility Lender for which that cash cover is to be provided;

 

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  (ii) subject to Clause 5.10(b) (Cash Cover by Borrower), until no amount is or may be outstanding under that Documentary Credit or Ancillary Facility, withdrawals from the account may only be made to pay a Relevant Finance Party amounts due and payable to it under this Agreement in respect of that Documentary Credit or Ancillary Facility; and

 

  (iii) that Borrower has executed a security document over that account, in form and substance satisfactory to the Security Trustee or the L/C Bank or Ancillary Facility Lender with which that account is held, creating a first ranking security interest over that account;

 

  (r) a Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied or waived;

 

  (s) a Borrower “repaying” or “prepaying” a Documentary Credit or Ancillary Facility Outstandings means:

 

  (i) that Borrower providing cash cover for that Documentary Credit or in respect of the Ancillary Facility Outstandings;

 

  (ii) the maximum amount payable under the Documentary Credit or Ancillary Facility being reduced or cancelled in accordance with its terms; or

 

  (iii) the relevant L/C Bank or Ancillary Facility Lender being satisfied that it has no further liability under that Documentary Credit or Ancillary Facility, and the amount by which a Documentary Credit is, or Ancillary Facility Outstandings are, repaid or prepaid under paragraphs (i) and (ii) above is the amount of the relevant cash cover or reduction;

 

  (t) an amount “borrowed” includes any amount utilised by way of Documentary Credit or under an Ancillary Facility;

 

  (u) a Lender funding its participation in a Utilisation includes a Lender participating in a Documentary Credit; and

 

  (v) an “outstanding amount” of a Documentary Credit at any time is the maximum amount that is or may be payable by a Borrower in respect of that Documentary Credit at that time.

 

  (w) When determining the Sterling equivalent amount for the purposes of the “Instructing Group” and/or “Non-Consenting Lender” and for all other purposes other than under Clause 22 (Financial Covenant), the Facility Agent shall determine the amount of (i) any undrawn commitments denominated in euro or Dollars or any other Optional Currency on the basis of the Facility Agent’s Spot Rate of Exchange on the date of this Agreement (in the case of the Revolving Facility) or on the date of the relevant Additional Facility Accession Deed (in the case of an Additional Facility); and (ii) any participations in Utilisations denominated in euro or dollars or any other Optional Currency on the basis of the Facility Agent’s Spot Rate of Exchange on the date of receipt by the Facility Agent of the Utilisation Request for the relevant Advance.

 

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1.4 Currency

” and “euro” denote the lawful currency of each Participating Member State, “£” and “Sterling” denote the lawful currency of the United Kingdom and “US$”, “$” and “Dollars” denote the lawful currency of the United States.

 

1.5 Statutes

Any reference in this Agreement to a statute or a statutory provision shall, save where a contrary intention is specified, be construed as a reference to such statute or statutory provision as the same shall have been, or may be, amended or re enacted.

 

1.6 Time

Any reference in this Agreement to a time shall, unless otherwise specified, be construed as a reference to London time.

 

1.7 References to Agreements

Unless otherwise stated, any reference in this Agreement to any agreement, indenture or any other document (including any reference to this Agreement) shall be construed as a reference to:

 

  (a) such agreement, indenture or any other document as amended, varied, novated or supplemented from time to time;

 

  (b) any other agreement, indenture or any other document whereby such agreement or document is so amended, varied, supplemented or novated; and

 

  (c) any other agreement, indenture or any other document entered into pursuant to or in accordance with any such agreement or document.

 

1.8 No Personal Liability

No personal liability shall attach to any director, officer or employee of any member of the Wider Group for any representation or statement made by that member of the Wider Group in a certificate signed by such director, officer or employee.

 

1.9 Group Intercreditor Agreement and HYD Intercreditor Agreement

 

  (a) This Agreement is entered into subject to, and with the benefit of, the terms of the Group Intercreditor Agreement and the HYD Intercreditor Agreement.

 

  (b) Notwithstanding anything to the contrary in this Agreement, the terms of the Group Intercreditor Agreement or the HYD Intercreditor Agreement will prevail if there is a conflict between the terms of this Agreement and the terms of the Group Intercreditor Agreement or the HYD Intercreditor Agreement.

 

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1.10 Permitted Affiliate Group Designation Date

On and from any Permitted Affiliate Group Designation Date any obligation in this Agreement of the Company to procure that members of the Bank Group comply with any covenant shall be construed such that the Company shall be obliged to procure that only its Subsidiaries that are members of Bank Group comply with that obligation and the relevant Permitted Affiliate Parent shall be obliged to procure that its Subsidiaries that are members of Bank Group comply with that obligation.

 

2. THE FACILITIES

 

2.1 The Facilities

The Lenders grant upon the terms and subject to the conditions of this Agreement to the Borrowers a multi-currency revolving loan facility to the Borrowers (other than to the US Borrower), as may be incurred pursuant to Clause 2.2(a) (Increase) below up to a maximum aggregate principal amount of the Revolving Facility Commitment (being an amount of £675,000,000 as at 15 June 2015) (the “Revolving Facility”), which shall be available for drawing in euro, Dollars, Sterling or any Optional Currency.

 

2.2 Increase

 

  (a) Notwithstanding Clause 2.1 (The Facilities) above, in addition to paragraph (b) below, the Company may with the prior consent of a Lender, any bank, financial institution, trust, fund or any other entity selected by the Company (each an “Increase Lender”) and by giving 10 Business Days prior notice to the Facility Agent, increase the Commitments under any Facility by including any new Commitments of any Increase Lender provided that:

 

  (i) no Event of Default is continuing;

 

  (ii) the terms of that Facility provide that no Utilisation may be made if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;

 

  (iii) the aggregate principal amount of such new Commitments shall not exceed the aggregate sum of:

 

  (A) an unlimited amount, provided that on the date of such incurrence and after giving effect to the incurrence of such new Commitments (assuming a borrowing of the full amount of such Commitments and no netting of cash proceeds of any such new Commitments being incurred), Senior Net Debt to Annualised EBITDA is equal to or less than 4.50:1;

 

  (B) if the proceeds of such new Commitments are being used to refinance existing indebtedness that ranks pari passu or senior in right of security to the Facilities, an amount equal to the accrued interest, premiums and other amounts owing or paid relating to such existing indebtedness together with related fees and expenses; and

 

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  (C) any amount of Financial Indebtedness available to be incurred pursuant to paragraph (b)(xxxiii) of Clause 23.13 (Restrictions on Financial Indebtedness);

provided, that (x) any such new Commitments may be incurred under any of the above sub-paragraphs as selected by the Company, in its sole discretion, (y) the Company may elect to incur new Commitments under sub-paragraph (A) prior to using amounts available under sub- paragraph (C) and (z) amounts incurred pursuant to sub-paragraph (C) substantially concurrently with amounts incurred pursuant to sub-paragraph (A) will not count as Financial Indebtedness for the purposes of calculating Senior Net Debt; and

 

  (iv) each Borrower for that Facility is or becomes an Obligor.

 

  (b) The Company may by giving prior notice to the Facility Agent by no later than the date falling 30 Business Days after the effective date of a cancellation of:

 

  (i) the Available Commitments of a Defaulting Lender in accordance with Clause 10.5 (Right of Cancellation in Relation to a Defaulting Lender); or

 

  (ii) the Commitments of a Lender in accordance with Clause 19 (Illegality),

request that the Commitments relating to any Facility be increased (and the Commitments under that Facility shall be so increased) in an aggregate amount in the relevant currency of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled.

 

  (c) The increased Commitments will be assumed by one or more Increase Lenders selected by the Company each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume as if it had been an Original Lender; each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender.

 

  (d) Each Increase Lender shall become a party to this Agreement as a “Lender” and any Increase Lender and each of the other Relevant Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Relevant Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender.

 

  (e) The Commitments of the other Lenders shall continue in full force and effect.

 

  (f) An increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (g) below are satisfied.

 

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  (g) An increase in the Commitments will only be effective on:

 

  (i) the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender;

 

  (ii) in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:

 

  (A) the Increase Lender entering into the documentation required for it to accede as a party to the Group Intercreditor Agreement, HYD Intercreditor Agreement and Security Trust Agreement, as applicable; and

 

  (B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify to the Company, the Increase Lender and each L/C Bank; and

 

  (iii) each participating Lender consenting to such increase.

 

  (h) The Company may pay to any Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender.

 

  (i) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

  (j) The execution by the Company of an Increase Confirmation constitutes confirmation by each Guarantor that its obligations under Clause 28 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the new Commitments of any Increase Lender and shall be owed to each Finance Party including the relevant Lender.

 

  (k) Clause 36.6 (Transfer Deed) shall apply mutatis mutandis in this Clause 2.2 (Increase) in relation to an Increase Lender as if references in that Clause to:

 

  (i) a “Transferor” were references to all the Lenders immediately prior to the relevant increase;

 

  (ii) the “New Lender” were references to that “Increase Lender”; and

 

  (iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.

 

2.3 Purpose

 

  (a) The Revolving Facility shall be applied for the purposes of financing the ongoing working capital requirements and the general corporate purposes of the Bank Group and may be utilised by way of Revolving Facility Advances, Documentary Credits or, subject to the provisions of Clause 6 (Ancillary Facilities), Ancillary Facilities.

 

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  (b) The Borrowers shall apply all amounts borrowed under this Agreement in or towards satisfaction of the purposes referred to in paragraph (a) above (as applicable) and none of the Relevant Finance Parties shall be obliged to concern themselves with such application.

 

2.4 Relevant Finance Parties’ Rights and Obligations

 

  (a) The obligations of each Relevant Finance Party under the Relevant Finance Documents are several. Failure by a Relevant Finance Party to perform its obligations under the Relevant Finance Documents does not affect the obligations of any other party under the Relevant Finance Documents. No Relevant Finance Party is responsible for the obligations of any other Relevant Finance Party under the Relevant Finance Documents.

 

  (b) The rights of each Relevant Finance Party under or in connection with the Relevant Finance Documents are separate and independent rights and any debt arising under the Relevant Finance Documents to a Relevant Finance Party from an Obligor shall be a separate and independent debt.

 

  (c) A Relevant Finance Party may, except as otherwise stated in the Relevant Finance Documents, separately enforce its rights under the Relevant Finance Documents.

 

2.5 Additional Facilities

 

  (a) The Company may notify the Facility Agent by no less than two Business Days notice that it wishes to establish one or more additional facilities (which may include any Ancillary Facility and/or Documentary Credit facility) (each an “Additional Facility”) by delivery to the Facility Agent of a duly completed Additional Facility Accession Deed, duly executed by the Company, each Additional Facility Lender for the Additional Facility and each Additional Facility Borrower for the relevant Additional Facility, provided, in respect of each Additional Facility, that:

 

  (i) [Reserved];

 

  (ii) other than in relation to a Limited Condition Transaction, no Event of Default is continuing;

 

  (iii) [Reserved];

 

  (iv) other than in relation to a Limited Condition Transaction, the terms of that Additional Facility provide that no Utilisation may be made if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;

 

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  (v) the aggregate principal amount of any new Additional Facility shall not exceed the aggregate sum of:

 

  (A) an unlimited amount, provided that on the date of such incurrence and after giving effect to the making of any Additional Facility (assuming a borrowing of the maximum amount of Advances available under any such Additional Facility being incurred and no netting of cash proceeds of any such Additional Facility being incurred) pursuant to an Additional Facility Accession Agreement on a pro forma basis, Senior Net Debt to Annualised EBITDA is equal to or less than 4.50:1;

 

  (B) if the proceeds of the Additional Facility are being used to refinance existing indebtedness that ranks pari passu or senior in right of security to the Facilities, an amount equal to the accrued interest, premiums and other amounts owing or paid relating to such existing indebtedness together with related fees and expenses; and

 

  (C) any amount of Financial Indebtedness available to be incurred pursuant to paragraph (b)(xxxiii) of Clause 23.13 (Restrictions on Financial Indebtedness),

provided, that (x) any Additional Facility may be incurred under any of the above sub-paragraphs as selected by the Company, in its sole discretion, (y) the Company may elect to incur Additional Facilities under sub-paragraph (A) prior to using amounts available under sub-paragraph (C) and (z) amounts incurred pursuant to sub-paragraph (C) substantially concurrently with amounts incurred pursuant to sub-paragraph (A) will not count as Financial Indebtedness for the purposes of calculating Senior Net Debt,

(the “Additional Facilities Cap”).

 

  (vi) each Additional Facility Borrower for that Additional Facility is an existing Obligor;

 

  (vii) the principal amount, interest rate, interest periods, Final Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with, any Additional Facility and related provisions and the currency of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility Accession Deed;

 

  (viii) the relevant Additional Facility Accession Deed shall specify whether that Additional Facility provides for one or more term loans or revolving loans; and

 

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  (ix) subject to paragraph (iv) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.

 

  (b) Subject to the conditions in this Clause 2.5 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Deed.

 

  (c) Each Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Security in accordance with the terms of the Group Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Security on a junior basis to the other Facilities which, if so agreed, shall be set out in the relevant Additional Facility Accession Deed.

 

  (d) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Deed which has been duly completed and signed on behalf of each proposed Additional Facility Lender, the Company and each proposed Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.

 

  (e) On the date that the Facility Agent executes an Additional Facility Accession Deed:

 

  (i) each Additional Facility Lender party to that Additional Facility Accession Deed, each other Relevant Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and

 

  (ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.

 

  (f) The execution by the Company of an Additional Facility Accession Deed constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 28 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Relevant Finance Party including such Additional Facility Lender.

 

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  (g) With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Relevant Finance Document (in accordance with the terms of this Clause 2.5 (Additional Facilities)) to reflect the terms of each Additional Facility without the consent of any Lender other than the applicable Additional Facility Lender.

 

  (h) Each Additional Facility Lender, by executing an Additional Facility Accession Deed, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Additional Facility becomes effective.

 

  (i) The Company may pay to any Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Additional Facility Lender.

 

  (j) There shall be no limit on the aggregate principal amount of any proposed Additional Facility (a “Refinancing Additional Facility”) to the extent established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, existing Advances or Commitments (the “Refinanced Debt”) provided that if the obligations under such Refinancing Additional Facility do not rank equal to or junior to such existing Advances and Commitments the principal amount of such Refinancing Additional Facility shall not exceed an amount equal to the Additional Facilities Cap (or its equivalent in other currencies). A Refinancing Additional Facility may only be established if the following conditions are met:

 

  (i) it provides for Additional Facility Commitments which are in an aggregate principal amount that is not less than:

 

  (A) in the case of any Refinancing Additional Facility which by its terms is a revolving loan facility, £1,000,000 (where the Refinancing Additional Facility is denominated in Sterling) or US$1,000,000 (where the Refinancing Additional Facility is denominated in Dollars);

 

  (B) in the case of any Refinancing Additional Facility which by its terms is a Term Facility, £15,000,000 (where the Refinancing Additional Facility is denominated in Sterling) or US$15,000,000 (where the Refinancing Additional Facility is denominated in Dollars),

in each case provided that such amount may be less than £1,000,000 US$1,000,000, £15,000,000 and US$15,000,000, respectively, if such amount is equal to (x) in the case of Refinanced Debt that is in the form of an Advance, the entire outstanding principal amount of that Refinanced Debt or (y) in the case of Refinanced Debt that is in the form of a Commitment, the entire commitment amount of that Refinanced Debt;

 

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  (ii) in the case of Refinancing Additional Facilities which are Term Facilities:

 

  (A) as of the effective date of the relevant Additional Facility Accession Agreement (the “Refinancing Additional Facility Effective Date”), it does not have a final maturity date earlier than the applicable final maturity date in respect of the relevant Refinanced Debt;

 

  (B) as of the Refinancing Additional Facility Effective Date, it does not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the relevant Refinanced Debt;

 

  (C) if it ranks junior in right of security, it participates on a junior basis with respect to voluntary prepayments or cancellations and mandatory prepayments of term loans;

 

  (D) it does not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees, premiums (if any) and penalties thereon and reasonable fees, expenses, OID and upfront fees associated with the refinancing of such Refinanced Debt;

 

  (E) it ranks pari passu or junior in right of payment with any Additional Facility Commitments which are senior in right of payment and shall rank pari passu or junior in right of Security with the Additional Facility Commitments which are secured on a first ranking basis in accordance with the terms of the Intercreditor Agreement or other intercreditor agreement or arrangement reasonably satisfactory to the Borrower and the Facility Agent; and

 

  (F) to the extent applicable, it is subject to the Group Intercreditor Agreement and the HYD Intercreditor Agreement; and

 

  (iii) in the case of Refinancing Additional Facilities which are revolving facilities:

 

  (A) it ranks pari passu or junior in right of payment with the Additional Facility Commitments that are senior in right of payment and shall rank pari passu in right of security with the Additional Facility Commitments which are secured on a first ranking basis;

 

  (B) it does not have a final maturity date or commitment reduction date earlier than the final maturity date or commitment reduction date, respectively, in respect of the relevant Refinanced Debt;

 

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  (C) it provides that the borrowing and repayment (other than in respect of (i) payment of interest and fees at different rates on Refinancing Additional Facilities that are revolving facilities, (ii) repayments required upon the final maturity date of a revolving facility and (iii) repayment made in connection with a permanent repayment and termination of commitments of Advances with respect to Refinancing Additional Facilities that are revolving facilities after the Refinancing Additional Facility Effective Date shall be made on a pro rata basis or less than a pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Refinancing Additional Facility Effective Date;

 

  (D) it provides that assignments and participations of Refinancing Additional Facilities that are revolving facilities shall be governed by the same assignment and participation provisions applicable to the Revolving Credit Commitments then existing on the Refinancing Additional Facility Effective Date;

 

  (E) it does not have a greater principal amount of Additional Facility Commitments than the principal amount of the Refinanced Debt and accrued interest, fees, premiums (if any) and penalties thereon and reasonable fees, expenses, OID and upfront fees associated with the refinancing of the Refinanced Debt; and

 

  (F) it shall be subject to the Group Intercreditor Agreement and the HYD Intercreditor Agreement.

 

3. CONDITIONS

 

3.1 Intentionally Left Blank

 

3.2 Further Conditions Precedent

The Lenders will only be obliged to comply with Clause 4.2 (Lenders Participations) in relation to any Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date, other than in the case of a Rollover Advance, no Default is continuing or would result from the proposed Utilisation provided that, in relation to any Utilisation under an Additional Facility in relation to a Limited Condition Transaction, the Additional Facility Lenders may agree to amend or waive any of the conditions under this Clause 3.2 (Further Conditions Precedent).

 

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3.3 Intentionally Left Blank

 

3.4 Intentionally Left Blank

 

4. UTILISATION

 

4.1 Conditions to Utilisation

Save as otherwise provided in this Agreement, an Advance will be made by the Lenders to a Borrower or a Documentary Credit will be issued by an L/C Bank at a Borrower’s request if:

 

  (a) in the case of an Advance, the Facility Agent has received from such Borrower a duly completed Utilisation Request in the relevant form, and in the case of a Documentary Credit, both the Facility Agent and the relevant L/C Bank have received from a Borrower a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is 10 Business Days prior to the requested Utilisation Date and, unless otherwise agreed with the Facility Agent (and, in relation to a Documentary Credit only, the L/C Bank) and no later than the Specified Time, receipt of which shall oblige such Borrower to utilise the amount requested on the Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement;

 

  (b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is within the Availability Period and is or precedes the relevant Termination Date;

 

  (c) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Sterling Amount (or its equivalent) of such Revolving Facility Advance (including any Deemed Advance) is (i) equal to the amount of the Available Revolving Facility Commitment at such time, or (ii) less than such amount but equal to a minimum of £5,000,000, or an integral multiple of £1,000,000;

 

  (d) in the case of a Utilisation by way of Documentary Credit, the proposed Sterling Amount (or its equivalent) of such Documentary Credit is equal to or more than £1,000,000 or such lesser amount as the relevant L/C Bank may agree (acting reasonably);

 

  (e) in the case of a Utilisation by way of a Revolving Facility Advance, immediately after the making of such Advance there will be no more than 25 Revolving Facility Advances then outstanding;

 

  (f) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit ends on or before the Final Maturity Date in respect of the Revolving Facility or Additional Facility (as applicable) and immediately after the making of such Utilisation there will be no more than 25 Documentary Credits then outstanding;

 

  (g)

in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Advance is a period of any number of days from and including 1 day to and including 30 days or one, two, three or six months or

 

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  such other period of up to 12 months as all the Lenders having a Revolving Facility Commitment may agree with the Company prior to submission of the relevant Utilisation Request, and ends on or before the Final Maturity Date in respect of the Revolving Facility;

 

  (h) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 15 (Market Disruption and Alternative Interest Rates);

 

  (i) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 15 (Form of Documentary Credit), the relevant L/C Bank shall have approved the terms of such Documentary Credit (acting reasonably);

 

  (j) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:

 

  (i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.3 (Renewal of Documentary Credits), the Facility Agent shall not have received instructions from a Revolving Facility Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of the Acceleration Date having occurred; or

 

  (ii) in the case of any Utilisation other than that referred to in paragraph (i) above or in relation to any Utilisation under an Additional Facility in relation to a Limited Condition Transaction, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; and

 

  (k) in the case of a Utilisation under a Maintenance Covenant Revolving Facility (other than, (i) in each case, in relation to a Utilisation that is a Rollover Advance provided that the amount of the Maturing Advance is equal to or greater than the amount of that Rollover Advance or (ii) in relation to a Utilisation under any Additional Facility that is a revolving facility in relation to a Limited Condition Transaction), subject to the expiry of the cure period in Clause 22.4 (Cure Provisions) there is no subsisting breach of Clause 22 (Financial Covenant).

 

4.2 Lenders’ Participations

 

  (a) Each Lender will participate through its Facility Office in each Advance made pursuant to Clause 4.1 (Conditions to Utilisation) in its respective Proportion.

 

  (b) The Facility Agent shall determine the Sterling Amount of each Revolving Facility Advance which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Sterling Amount of each Advance, the amount of its participation in that Advance and, if different, the amount of that participation to be made available in accordance with Clause 32.1 (Payment to the Facility Agent) by the Specified Time.

 

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5. DOCUMENTARY CREDITS

 

5.1 Issue of Documentary Credits

 

  (a) Each L/C Bank shall issue Documentary Credits pursuant to Clause 4.1 (Conditions to Utilisation) by:

 

  (i) completing the issue date and the proposed Expiry Date of any Documentary Credit to be issued by it; and

 

  (ii) executing and delivering such Documentary Credit to the relevant Beneficiary on the relevant Utilisation Date.

 

  (b) Each Lender having a Revolving Facility Commitment or an Additional Facility Commitment in relation to a revolving facility (an “L/C Lender”) will participate by way of indemnity in each Documentary Credit issued under the relevant Facility in an amount equal to its L/C Proportion.

 

  (c) The Facility Agent shall notify each L/C Lender and the relevant L/C Bank of the details of any requested Documentary Credit (including the Sterling Amount of it, and, if such Documentary Credit is not to be denominated in Sterling, the relevant currency in which it will be denominated and the amount of it) and its participation in that Documentary Credit.

 

5.2 Existing Documentary Credits

 

  (a) On the first Utilisation Date, the Existing Documentary Credits shall be deemed to be Documentary Credits issued by the applicable L/C Lender listed in Part 2 of Schedule 12 (Existing Documentary Credits) pursuant to the relevant L/C Lender’s Ancillary Facility, which shall be deemed to be an ancillary facility provided to the applicable company listed as Borrower with the relevant L/C Lender’s consent in accordance with Clause 6.1 (Utilisation of Ancillary Facilities) on the same terms as the facility which the Existing Documentary Credit was issued under.

 

  (b) In respect of each Existing Documentary Credit, for the purposes of this Agreement:

 

  (i) the Utilisation Date shall be the first Utilisation Date; and

 

  (ii) the currency, amount and other terms shall be those set out opposite that Existing Documentary Credit in Part 2 of Schedule 12 (Existing Documentary Credits).

 

  (c) For the avoidance of doubt, no Request is required to be given by the Company in respect of the issue of the Documentary Credits in accordance with paragraph (a) above.

 

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5.3 Renewal of Documentary Credits

 

  (a) Each Borrower may request that a Documentary Credit issued on its behalf be renewed by delivering to the Facility Agent and the relevant L/C Bank a Renewal Request which complies with Clause 4.1 (Conditions to Utilisation).

 

  (b) The terms of each renewed Documentary Credit shall be the same as those of the relevant Documentary Credit immediately prior to its renewal, except that (as stated in the Renewal Request therefor):

 

  (i) its amount may be less than the amount of such Documentary Credit immediately prior to its renewal; and

 

  (ii) its Term shall start on the date which was the Expiry Date of that Documentary Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

  (c) If the conditions set out in this Clause 5.3 (Renewal of Documentary Credits) have been met, the relevant L/C Bank shall amend and re-issue the relevant Documentary Credit pursuant to a Renewal Request.

 

5.4 Reduction of a Documentary Credit

 

  (a) If, on the proposed Utilisation Date of a Documentary Credit, any of the Lenders under the Revolving Facility is a Non-Acceptable L/C Lender and:

 

  (i) that Lender has failed to provide cash collateral to the relevant L/C Bank in accordance with Clause 5.9 (Cash Collateral by Non-Acceptable L/C Lender); and

 

  (ii) either:

 

  (A) the relevant L/C Bank has not required the relevant Borrower which requested the Documentary Credit to provide cash cover pursuant to Clause 5.10 (Cash Cover by Borrower); or

 

  (B) the relevant Borrower which requested the Documentary Credit has failed to provide cash cover to the relevant L/C Bank in accordance with Clause 5.10 (Cash Cover by Borrower),

the relevant L/C Bank may reduce the amount of that Documentary Credit by an amount equal to the amount of the participation of that Non-Acceptable L/C Lender in respect of that Documentary Credit and that Non-Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the relevant L/C Bank) in respect of that Documentary Credit for the purposes of the Relevant Finance Documents.

 

  (b) The relevant Borrower shall notify the Facility Agent (with a copy to the relevant L/C Bank) of each reduction made pursuant to this Clause 5.4 (Reduction of a Documentary Credit).

 

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  (c) This Clause 5.4 (Reduction of a Documentary Credit) shall not affect the participation of each other Lender in that Documentary Credit.

 

5.5 Revaluation of Documentary Credits

 

  (a) If any Documentary Credit is denominated in a currency other than Sterling, the Facility Agent shall at six monthly intervals after the date of the Documentary Credit recalculate the Sterling Amount of that Documentary Credit by notionally converting into Sterling, the outstanding amount of that Documentary Credit on the basis of the Facility Agent’s Spot Rate of Exchange on the date of calculation.

 

  (b) The relevant Borrower shall, if requested by the Facility Agent within two days of any calculation under paragraph (a) above, ensure that within three Business Days sufficient Revolving Facility Outstandings or Additional Facility Outstandings (as applicable) are repaid (subject to Break Costs, if applicable, but otherwise without penalty or premium which might otherwise be payable), to prevent the Sterling Amount of the Revolving Facility Outstandings or Additional Facility Outstandings (as applicable) exceeding the aggregate amount of all of the Revolving Facility Commitments or Additional Facility Commitments (as applicable) adjusted to reflect any cancellations or reductions, following any adjustment under paragraph (a) above.

 

5.6 Immediately Payable

 

  (a) If a Documentary Credit or any amount outstanding under a Documentary Credit becomes immediately payable under this Agreement, the relevant Borrower that requested (or on behalf of which the Company requested) the issue of that Documentary Credit shall repay or prepay that Documentary Credit or that amount within three Business Days of demand.

 

  (b) Each L/C Bank shall promptly notify the Facility Agent of any demand received by it under and in accordance with any Documentary Credit (including details of the Documentary Credit under which such demand has been received and the amount demanded). The Facility Agent shall promptly notify the Company, the relevant Borrower for whose account the Documentary Credit was issued and each of the Lenders under the Revolving Facility or Additional Facility (as applicable).

 

5.7 Claims Under a Documentary Credit

 

  (a) Each Borrower irrevocably and unconditionally authorises each L/C Bank to pay any claim made or purported to be made under a Documentary Credit requested by it (or by the Company on its behalf) and which appears on its face to be in order (a “claim”).

 

  (b) Each Borrower shall within three Business Days of demand pay to the Facility Agent for the account of the relevant L/C Bank an amount equal to the amount of any claim under that Documentary Credit.

 

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  (c) On receipt of any demand or notification under Clause 5.6 (Immediately Payable), the relevant Borrower shall (unless the Company notifies the Facility Agent otherwise) be deemed to have delivered to the Facility Agent a duly completed Utilisation Request requesting a Revolving Facility Advance or Additional Facility Advance (as applicable):

 

  (i) in an amount and currency equal to the amount and currency of the relevant claim (if applicable, net of any available cash cover);

 

  (ii) for an Interest Period or Term of three months or such other period of up to six months as notified by the relevant Borrower to the relevant L/C Bank prior to the Utilisation Date applicable to such currency; and

 

  (iii) with a Utilisation Date on the date of receipt of the relevant demand or notification.

The proceeds of any such Revolving Facility Advance or Additional Facility Advance shall be used to pay the relevant claim.

 

  (d) Each Borrower acknowledges that each L/C Bank:

 

  (i) is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

 

  (ii) deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

  (e) The obligations of each Borrower under this Clause 5.7 (Claims Under a Documentary Credit) will not be affected by:

 

  (i) the sufficiency, accuracy or genuineness of any claim or any other document; or

 

  (ii) any incapacity of, or limitation on the powers of, any person signing a claim or other document.

 

  (f) Without prejudice to any other matter contained in this Clause 5.7 (Claims Under a Documentary Credit), the relevant L/C Bank shall notify the relevant Borrowers as soon as reasonably practicable after receiving a claim.

 

5.8 Documentary Credit Indemnities

 

  (a) The relevant Borrower shall within three Business Days of demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful misconduct or wilful breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit requested by such Borrower.

 

  (b)

Each L/C Lender shall (according to its L/C Proportion) promptly on demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful

 

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  misconduct or wilful breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit (except to the extent that such L/C Bank has been reimbursed by an Obligor pursuant to a Relevant Finance Document).

 

  (c) If any L/C Lender is not permitted (by its constitutional documents or any applicable Law) to comply with paragraph (b) above, then that L/C Lender will not be obliged to comply with paragraph (b) above and shall instead be deemed to have taken, on the date the relevant Documentary Credit is issued (or if later, on the date that L/C Lender’s participation in the Documentary Credit is transferred or assigned to that L/C Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Documentary Credit in an amount equal to its L/C Proportion of that Documentary Credit. On receipt of demand from the Facility Agent, that L/C Lender shall pay to the Facility Agent (for the account of the relevant L/C Bank) an amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.

 

  (d) The Borrower which requested the Documentary Credit shall within three Business Days of demand reimburse any L/C Lender for any payment it makes to an L/C Bank under this Clause 5.8 (Documentary Credit Indemnities) in respect of that Documentary Credit unless such Lender or an Obligor has already reimbursed such L/C Bank in respect of that payment.

 

  (e) The obligations of each L/C Lender and Borrower under this Clause 5.8 (Documentary Credit Indemnities) are continuing obligations and will extend to the ultimate balance of sums payable by that L/C Lender in respect of any Documentary Credit, regardless of any intermediate payment or discharge in whole or in part.

 

  (f) The obligations of any L/C Lender or Borrower under this Clause 5.8 (Documentary Credit Indemnities) will not be affected by any act, omission, matter or thing which, but for this Clause 5.8 (Documentary Credit Indemnities) would reduce, release or prejudice any of its obligations under this Clause 5.8 (Documentary Credit Indemnities) (without limitation and whether or not known to it or any other person) including:

 

  (i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Documentary Credit or any other person;

 

  (ii) the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

  (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Documentary Credit or any other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

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  (iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Documentary Credit or any other person;

 

  (v) any amendment or restatement (however fundamental) or replacement of a Relevant Finance Document, any Documentary Credit or any other document or security;

 

  (vi) any unenforceability, illegality or invalidity of any obligation of any person under any Relevant Finance Document, any Documentary Credit or any other document or security; or

 

  (vii) any insolvency or similar proceedings.

 

5.9 Cash Collateral by Non-Acceptable L/C Lender

 

  (a) If, at any time, a Lender under the Revolving Facility is a Non-Acceptable L/C Lender, the relevant L/C Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling three Business Days after the request by such L/C Bank, an amount equal to that Lender’s L/C Proportion of the outstanding amount of a Documentary Credit issued by such L/C Bank and in the currency of that Documentary Credit to an interest-bearing account held in the name of that Lender with such L/C Bank.

 

  (b) The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the relevant L/C Bank, as collateral for any amounts due and payable under the Relevant Finance Documents by that Lender to the L/C Bank in respect of that Documentary Credit.

 

  (c) Until no amount is or may be outstanding under that Documentary Credit, withdrawals from the account may only be made to pay to the relevant L/C Bank amounts due and payable to the relevant L/C Bank by the Non-Acceptable L/C Lender under the Relevant Finance Documents in respect of that Documentary Credit.

 

  (d) Each Lender under the Revolving Facility shall notify the Facility Agent and the Company:

 

  (i) on the date of this Agreement or on any later date on which it becomes such a Lender in accordance with Clause 2.2 (Increase) or Clause 36 (Assignments and Transfers) whether it is a Non-Acceptable L/C Lender; and

 

  (ii) as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,

and an indication in a Transfer Deed, a Transfer Agreement or in an Increase Confirmation to that effect will constitute a notice under paragraph (d)(i) to the Facility Agent and, upon delivery in accordance with Clause 36.14 (Copy of Transfer Deed, Transfer Agreement or Increase Confirmation to Company), to the Company.

 

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  (e) Any notice received by the Facility Agent pursuant to paragraph (d) above shall constitute notice to each L/C Bank of that Lender’s status and the Facility Agent shall, upon receiving each such notice, promptly notify each L/C Bank of that Lender’s status as specified in that notice.

 

  (f) If a Lender who has provided cash collateral in accordance with this Clause 5.9 (Cash Collateral by Non-Acceptable L/C Lender):

 

  (i) ceases to be a Non-Acceptable L/C Lender; and

 

  (ii) no amount is due and payable by that Lender in respect of a Documentary Credit,

that Lender may, at any time it is not a Non-Acceptable L/C Lender, by notice to the relevant L/C Bank request that an amount equal to the amount of the cash provided by it as collateral in respect of that Documentary Credit (together with any accrued interest) standing to the credit of the relevant account held with that L/C Bank be returned to it and that L/C Bank shall pay that amount to the Lender within three Business Days after the request from the Lender (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).

 

5.10 Cash Cover by Borrower

 

  (a) If a Lender which is a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the relevant L/C Bank that it will not provide cash collateral) in accordance with Clause 5.9 (Cash Collateral by Non-Acceptable L/C Lender) and that L/C Bank notifies the Obligors’ Agent (with a copy to the Facility Agent) that it requires the relevant Borrower of the relevant Documentary Credit or proposed Documentary Credit to provide cash cover to an account with that L/C Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Documentary Credit and in the currency of that Documentary Credit then that Borrower shall do so within five Business Days after the notice is given.

 

  (b) Notwithstanding Clause 1.3(s) (Construction), the relevant Borrower shall be entitled to withdraw amounts up to the level of that cash cover from the account if:

 

  (i) the relevant L/C Bank is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender; or

 

  (ii) the relevant Lender’s obligations in respect of the relevant Documentary Credit are transferred to a New Lender in accordance with the terms of this Agreement; or

 

  (iii) an Increase Lender has agreed to undertake the obligations in respect of the relevant Lender’s L/C Proportion of the Documentary Credit.

 

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  (c) To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 5.10 (Cash Cover by Borrower), the relevant Lender’s L/C Proportion in respect of that Documentary Credit will remain (but that Lender’s obligations in relation to that Documentary Credit may be satisfied in accordance Clause 1.3(s)(ii) (Construction)). However, the relevant Borrower’s obligation to pay any Documentary Credit fee in relation to the relevant Documentary Credit to the Facility Agent (for the account of that Lender) in accordance with Clause 16 (Commissions and Fees) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).

 

  (d) The relevant L/C Bank shall promptly notify the Facility Agent of the extent to which the relevant Borrower provides cash cover pursuant to this Clause 5.10 (Cash Cover by Borrower) and of any change in the amount of cash cover so provided.

 

5.11 Rights of Contribution

No Obligor will be entitled to any right of contribution or indemnity from any Relevant Finance Party in respect of any payment it may make under this Clause 5 (Documentary Credits).

 

5.12 Appointment and Change of L/C Bank

 

  (a) The Company, with the prior written consent of the relevant Lender, may designate any Lender with a Revolving Facility Commitment or an Additional Facility Commitment in respect of an Additional Facility that permits Documentary Credits as an L/C Bank or as a replacement therefor, but not with respect to Documentary Credits already issued by any other L/C Bank.

 

  (b) Any Lender so designated shall become an L/C Bank under this Agreement by delivering to the Facility Agent an executed L/C Bank Accession Certificate.

 

  (c) An L/C Bank may resign as issuer of further Documentary Credits at any time if (i) the Company and the Instructing Group consent to such resignation or so require; (ii) there is, in the reasonable opinion of each L/C Bank, an actual or potential conflict of interest in it continuing to act as L/C Bank; or (iii) its Revolving Facility Commitment or Additional Facility Commitment (as applicable) is reduced to zero, provided that an L/C Bank shall not resign until a replacement L/C Bank is appointed.

 

6. ANCILLARY FACILITIES

 

6.1 Utilisation of Ancillary Facilities

 

  (a)

Each Borrower may, subject to paragraph (b) below, at any time at least 35 days prior to the Termination Date in respect of the Revolving Facility or an Additional Facility (as applicable) by delivery of a notice (a “Conversion Notice”) to the Facility Agent, request an Ancillary Facility to be established by the conversion of any Lender’s Available Revolving Facility Commitment

 

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  (or any part of it) or Available Additional Facility Commitment (or any part of it) into an Ancillary Facility Commitment with effect from the date (in this Clause 6 (Ancillary Facilities), the “Effective Date”) specified in the Conversion Notice (being a date not less than three Business Days after the date such Conversion Notice is received by the Facility Agent).

 

  (b) Each Conversion Notice shall specify:

 

  (i) the proposed Borrower(s) (or any Affiliate of the Borrower(s) that is a member of the Bank Group) which may use the Ancillary Facility;

 

  (ii) the nominated Ancillary Facility Lender;

 

  (iii) the type of Ancillary Facility and the currency or currencies in which the relevant Borrower wishes such Ancillary Facility to be available;

 

  (iv) the proposed Sterling Amount of the original Ancillary Facility Commitment, being an amount (A) equal to the Available Revolving Facility Commitment or Available Additional Facility Commitment of the nominated Ancillary Facility Lender or, if less, (B) equal to or more than £1,000,000;

 

  (v) the Effective Date and expiry date for the Ancillary Facility (such expiry date not to extend beyond the Final Maturity Date in respect of the Revolving Facility or an Additional Facility (as applicable));

 

  (vi) if the Ancillary Facility is an overdraft facility comprising more than one account, its maximum gross amount (that amount being the “Designated Gross Amount” and its maximum net amount (that amount being the “Designated Net Amount”)); and

 

  (vii) such other details as to the nature, amount, fees for and operation of the proposed Ancillary Facility as the Facility Agent and the nominated Ancillary Facility Lender may reasonably require.

 

  (c) The Facility Agent shall promptly notify the Company, the nominated Ancillary Facility Lender and the Lenders of each Conversion Notice received pursuant to paragraph (a) above.

 

  (d) Any Lender nominated as an Ancillary Facility Lender which has notified the Facility Agent of its consent to such nomination shall be authorised to make the proposed Ancillary Facility available in accordance with the Conversion Notice (as approved by the Facility Agent) with effect on and from the Effective Date. No other Lender shall be obliged to consent to the nomination of the Ancillary Facility Lender.

 

  (e)

Any material variation from the terms of the Ancillary Facility or any proposed increase or reduction or extension of the Ancillary Facility Commitment shall be effected on and subject to the provisions of this Clause 6 (Ancillary Facilities) mutatis mutandis as if such Ancillary Facility were newly requested (including, for the avoidance of doubt, that such newly requested Ancillary Facility shall only take effect from a date not less than

 

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  three Business Days after the date the Facility Agent has received notice of the modification or variation or extension), provided that the Sterling Amount of the Ancillary Facility Outstandings under each Ancillary Facility provided by an Ancillary Facility Lender shall at no time exceed the Available Revolving Facility Commitment or Available Additional Facility Commitment (as applicable) of that Ancillary Facility Lender.

 

  (f) Each relevant Borrower may (subject to compliance with the applicable terms of the relevant Ancillary Facility) at any time by giving written notice to the Facility Agent and the relevant Ancillary Facility Lender cancel any Ancillary Facility Commitment pursuant to and in accordance with Clause 10.1 (Voluntary Cancellation), provided that on the date of such cancellation, that part of such Ancillary Facility Commitment as shall have been so cancelled shall be converted back into the Revolving Facility Commitment or Additional Facility Commitment (as applicable) of the relevant Lender unless the Revolving Facility Commitments or Additional Facility Commitments (as applicable) are also cancelled on such date.

 

  (g) The Ancillary Facility Commitment of any Ancillary Facility Lender shall terminate and be cancelled on the date agreed therefor between the relevant Ancillary Facility Lender and the relevant Borrower, provided such date shall be no later than the Termination Date in respect of the Revolving Facility or Additional Facility (as applicable) (the “Ancillary Facility Termination Date”). Any Ancillary Facility Outstandings on the applicable Ancillary Facility Termination Date shall be repaid in full by the relevant Borrower on such date.

 

  (h) The Revolving Facility Commitment or Additional Facility Commitment (as applicable) of each Lender at any time shall be reduced by the amount of any Ancillary Facility Commitment of such Lender at such time but such reduced Commitment shall, subject to any other provisions of this Agreement, automatically be increased by the amount of any portion of its Ancillary Facility Commitment which ceases to be made available to the relevant Borrowers for any reason (other than as a result of Utilisation of it) in accordance with the terms of such Ancillary Facility or is cancelled pursuant to paragraphs (f) or (g) above.

 

6.2 Operation of Ancillary Facilities

 

  (a) Subject to paragraph (b) below, the terms governing the operation of any Ancillary Facility (including the rate of interest (including default interest), fees, commission and other remuneration in respect of such Ancillary Facility) shall be those determined by agreement between the Ancillary Facility Lender and the relevant Borrower, provided that such terms shall be based upon the normal commercial terms and market rates of the relevant Ancillary Facility Lender.

 

  (b) In the case of any inconsistency or conflict between the terms of any Ancillary Facility, the applicable Ancillary Facility Documents and this Agreement, the terms and provisions of the applicable Ancillary Facility Document shall prevail unless the contrary intention is expressly provided for in this Agreement.

 

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  (c) Each relevant Borrower and Ancillary Facility Lender will promptly upon request by the Facility Agent, supply the Facility Agent with such information relating to the operation of each Ancillary Facility (including without limitation details of the Ancillary Facility Outstandings and the Sterling Amount thereof) as the Facility Agent may from time to time reasonably request (and each relevant Borrower consents to such documents and information being provided to the Facility Agent and the other Lenders).

 

6.3 Ancillary Facility Default

 

  (a) If a default occurs under any Ancillary Facility, no Ancillary Facility Lender may demand repayment of any monies or demand cash cover for any Ancillary Facility Outstandings, or take any analogous action in respect of any Ancillary Facility, until the Acceleration Date.

 

  (b) If an Acceleration Date occurs, the claims of each Lender with a Revolving Facility Commitment or Additional Facility Commitment (as applicable) and each Ancillary Facility Lender in respect of amounts outstanding to them under the Revolving Facility or Additional Facility (as applicable) and the related Ancillary Facilities respectively shall be adjusted in accordance with this Clause 6.3 (Ancillary Facility Default) by making all necessary transfers of such portions of such claims such that following such transfers the Revolving Facility Outstandings or Additional Facility Outstandings (as applicable) and the related Ancillary Facility Outstandings (together with the rights to receive interest, fees and charges in relation thereto) of (i) each Lender with a Revolving Facility Commitment or Additional Facility Commitment (as applicable) and (ii) each Ancillary Facility Lender, in each case as at the Acceleration Date shall be an amount corresponding pro rata to the proportion that the sum of such Lender’s Revolving Facility Commitment or Additional Facility Commitment (as applicable) and/or (as the case may be) related Ancillary Facility Commitment bears to the sum of all of the Revolving Facility Commitments or Additional Facility Commitments (as applicable) and the related Ancillary Facility Commitments, each as at the Acceleration Date.

 

  (c) No later than the third Business Day following the Acceleration Date each of the Ancillary Facility Lenders shall notify the Facility Agent in writing of the Sterling Amount of its Ancillary Facility Outstandings as at the close of business on the Acceleration Date, such amount to take account of any clearing of debits which were entered into the clearing system of such Ancillary Facility Lenders prior to the Acceleration Date and any amounts credited to the relevant accounts prior to close of business on the Acceleration Date.

 

  (d) On receipt of the information referred to in paragraph (c) above, the Facility Agent will promptly determine what adjustment payments (if any) are necessary as between the Lenders participating in the Revolving Facility or Additional Facility (as applicable) and each related Ancillary Facility Lender in order to ensure that, following such adjustment payments, the requirements of paragraph (b) above are complied with.

 

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  (e) The Facility Agent will notify all the Lenders as soon as practicable of its determinations pursuant to paragraph (d) above, giving details of the adjustment payments required to be made. Such adjustment payments shall be payable by the relevant Lenders and shall be made to the Facility Agent within 5 Business Days following receipt of such notification from the Facility Agent. The Facility Agent shall distribute the adjustment payments received, among the Ancillary Facility Lenders and the Lenders participating in the Revolving Facility or Additional Facility (as applicable) in order to satisfy the requirements of paragraph (b) above.

 

  (f) If at any time following the Acceleration Date, the amount of Revolving Facility Outstandings or Additional Facility Outstandings (as applicable) of any Lender or related Ancillary Facility Outstandings of any Ancillary Facility Lender used in the Facility Agent’s calculation of the adjustments required under paragraph (d) above should vary for any reason (other than as a result of currency exchange fluctuation or other reason which affects all relevant Lenders equally), further adjustment payments shall be made on the same basis (mutatis mutandis) provided for in this Clause 6.3 (Ancillary Facility Default).

 

  (g) In respect of any amount paid by any Lender (a “Paying Lender”) pursuant to either of paragraphs (e) or (f) above, as between a relevant Borrower and the Paying Lender, the amount so paid shall be immediately due and payable by such relevant Borrower to the Paying Lender and the payment obligations of such relevant Borrower to the Lender(s) which received such payment shall be treated as correspondingly reduced by the amount of such payment.

 

  (h) Each Lender shall promptly supply to the Facility Agent such information as the Facility Agent may from time to time request for the purpose of giving effect to this Clause 6.3 (Ancillary Facility Default).

 

  (i) If an Ancillary Facility Lender has the benefit of any Security Interest securing any of its Ancillary Facilities, the realisations from such security when enforced will be treated as an amount recovered by such Ancillary Facility Lender in its capacity as a Lender which is subject to the sharing arrangements in Clause 34 (Sharing among the Relevant Finance Parties) to the intent that such realisation should benefit all Lenders pro rata.

 

6.4 Repayment of Ancillary Facilities

 

  (a) No Ancillary Facility Lender may demand repayment or prepayment of any amounts under its Ancillary Facility unless:

 

  (i) the Revolving Facility Commitments or Additional Facility Commitment (as applicable) have been cancelled in full, or the Facility Agent has declared all Outstandings under the Revolving Facility or Additional Facility (as applicable) immediately due and payable; or

 

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  (ii) the Ancillary Facility Outstandings under that Ancillary Facility can be repaid by a Revolving Facility Advance or Additional Facility Advance (as applicable) (and not less than 7 Business Days notice (or such shorter period as agreed to by the Company) is given to the relevant Borrower before payment becomes due).

 

  (b) For the purposes of repaying Ancillary Facility Outstandings (so long as paragraph (a)(i) above does not apply) a Revolving Facility Advance or Additional Facility Advance (as applicable) may be borrowed irrespective of whether a Default is outstanding or any other applicable condition precedent not satisfied.

 

  (c) The share of the Ancillary Facility Lender in a Revolving Facility Advance or Additional Facility Advance (as applicable) being used to refinance that Ancillary Facility Lender’s Ancillary Facility will be that amount which will result (so far as possible) in:

 

  (i) the proportion which its share of all Outstandings under the Revolving Facility or Additional Facility (as applicable) bears to the aggregate amount of the Outstandings under the Revolving Facility or Additional Facility (as applicable),

being equal to:

 

  (ii) the proportion which its Available Commitment with respect to the Revolving Facility or Additional Facility (as applicable) bears to the aggregate of the Available Commitments with respect to the Revolving Facility or Additional Facility (as applicable),

in each case, assuming the repayment of the relevant Ancillary Facility has taken place. The share of the other Lenders in any such Revolving Facility Advance or Additional Facility Advance (as applicable) will be adjusted accordingly.

 

6.5 Continuation of Ancillary Facilities

 

  (a) A Borrower and an Ancillary Facility Lender may, as between themselves only, agree to continue to provide the same banking facilities following the Termination Date applicable to the Revolving Facility or Additional Facility (as applicable) or, as the case may be, the Revolving Facility Commitments or Additional Facility Commitments (as applicable) are cancelled under this Agreement.

 

  (b)

If any arrangement contemplated in paragraph (a) above is to occur, the relevant Borrower and the Ancillary Facility Lender shall each confirm that to be the case in writing to the Facility Agent. Upon such Termination Date or, as the case may be, date of cancellation, any such facility shall continue as between the said entities on a bilateral basis and not as part of, or under, the Relevant Finance Documents. Save for any rights and obligations against any Relevant Finance Party under the Relevant Finance Documents prior to such Termination Date or, as the case may be, date of cancellation, no such rights

 

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  or obligations in respect of such Ancillary Facility shall, as between the Relevant Finance Parties, continue and the Security shall not support any such facility in respect of any matters that arise after such Termination Date or, as the case may be, date of cancellation.

 

6.6 Affiliates of Lenders as Ancillary Facility Lenders

 

  (a) Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Facility Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose (i) Revolving Facility Commitment is the amount set out opposite the relevant Lender’s name in Part 1 of Schedule 1 (Lenders and Commitments) and/or the amount of any Revolving Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement or (ii) Additional Facility Commitment is the amount set out opposite the relevant Lender’s name in the relevant Additional Facility Accession Deed and/or the amount of any relevant Additional Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement (as applicable). For the purposes of calculating the Lender’s Available Commitment with respect to the Revolving Facility or Additional Facility (as applicable), the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Facility Commitments of its Affiliates.

 

  (b) The Company shall specify any relevant Affiliate of a Lender in any Conversion Notice delivered by the Company to the Facility Agent pursuant to Clause 6.1 (Utilisation of Ancillary Facilities).

 

  (c) An Affiliate of a Lender which becomes an Ancillary Facility Lender shall accede to this Agreement as an Ancillary Facility Lender, and the Group Intercreditor Agreement and the HYD Intercreditor Agreement as a Senior Lender.

 

  (d) If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (in accordance with Clause 36 (Assignments and Transfers), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Facility Document.

 

  (e) Where this Agreement or any other Relevant Finance Document imposes an obligation on an Ancillary Facility Lender and the relevant Ancillary Facility Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.

 

6.7 Affiliates of Borrowers

 

  (a) Subject to the terms of this Agreement, an Affiliate of a Borrower that is a member of the Bank Group may with the approval of the relevant Ancillary Facility Lender become a Borrower with respect to an Ancillary Facility.

 

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  (b) The Company shall specify any relevant Affiliate of the Borrower in any Conversion Notice delivered by the Company to the Facility Agent pursuant to Clause 6.1 (Utilisation of Ancillary Facilities).

 

  (c) If any Borrower ceases to be a Borrower under this Agreement in accordance with Clause 36.2 (Resignation of a Borrower), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Facility Document.

 

  (d) Where this Agreement or any other Relevant Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.

 

  (e) Any reference in this Agreement or any other Relevant Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Relevant Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Relevant Finance Document or Ancillary Facility Document.

 

7. OPTIONAL CURRENCIES

 

7.1 Selection of Currency

Each Borrower under the Revolving Facility or an Additional Facility shall select the currency of a Revolving Facility Advance or an Additional Facility Advance made to it (which shall be Sterling, Dollars, euro or an Optional Currency) in the Utilisation Request relating to the relevant Revolving Facility Advance or Additional Facility Advance.

 

7.2 Unavailability of Optional Currency

 

  (a) If before the Specified Time on the Quotation Date for the relevant Revolving Facility Advance or an Additional Facility Advance:

 

  (i) a Lender notifies the Facility Agent that the relevant Optional Currency is not readily available to it in the amount required; or

 

  (ii) a Lender notifies the Facility Agent that compliance with its obligation to participate in the Revolving Facility Advance or Additional Facility Advance in the proposed Optional Currency would contravene a Law or regulation applicable to it,

the Facility Agent will give notice to the relevant Borrower to that effect by the Specified Time. In this event, any Lender that gives notice pursuant to this Clause 7.2 (Unavailability of Optimal Currency) will be required to participate in the relevant Revolving Facility Advance in Sterling (in an amount equal to that Lender’s Proportion of the Sterling Amount of the relevant Revolving Facility Advance or, in respect of a Rollover Advance, an amount equal to that Lender’s Proportion of the Sterling Amount of any amount that the Lenders are actually required to advance in accordance with Clause 8.2 (Rollover Advances)), and its participation will be treated as a separate Advance denominated in Sterling during that Term.

 

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  (b) Any part of a Revolving Facility Advance or Additional Facility Advance treated as a separate Advance under this Clause 7 (Optional Currencies) will not be taken into account for the purposes of any limit on the number of Advances or currencies outstanding at any one time.

 

8. REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS

 

8.1 Repayment of Revolving Facility Advances

The Borrower shall (subject to Clause 8.2 (Rollover Advances)) repay the full amount of each Revolving Facility Advance and each Additional Facility Advance in relation to a revolving facility drawn by it on its Repayment Date.

 

8.2 Rollover Advances

Without prejudice to each Borrower’s obligation to repay the full amount of each Revolving Facility Advance and each Additional Facility Advance in relation to a revolving facility made to it on the applicable Repayment Date, where, on the same day on which such Borrower is due to repay a Revolving Facility Advance or an applicable Additional Facility Advance (a “Maturing Advance”) such Borrower has also requested that one or more Revolving Facility Advances or applicable Additional Facility Advances in the same currency as and in an amount which is equal to or less than the Maturing Advance be made to it (a “Rollover Advance”), subject to the Lenders being obliged to make such Rollover Advance under Clause 4.1 (Conditions to Utilisation), the aggregate amount of the Rollover Advance shall be treated as if applied in or towards repayment of the Maturing Advance so that:

 

  (a) if the amount of the Maturing Advance exceeds the aggregate amount of the Rollover Advance:

 

  (i) the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

  (ii) each Lender’s participation (if any) in the Rollover Advance shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the Maturing Advance and that Lender will not be required to make its participation in the Rollover Advance available in cash; and

 

  (b) if the amount of the Maturing Advance is equal to or less than the aggregate amount of the Rollover Advance:

 

  (i) the relevant Borrower will not be required to make any payment in cash; and

 

  (ii)

each Lender will be required to make its participation in the Rollover Advance available in cash only to the extent that its participation (if any) in the Rollover Advance exceeds that Lender’s participation (if any) in the Maturing Advance and the remainder of that Lender’s

 

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  participation in the Rollover Advance shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the Maturing Advance.

 

8.3 Cash Collateralisation of Documentary Credits

 

  (a) If not previously repaid in accordance with paragraph (b) below, each Borrower must repay each Documentary Credit issued on its behalf in full on the date stated in that Documentary Credit to be its Expiry Date.

 

  (b) A Borrower may give the Facility Agent not less than five Business Days prior written notice of its intention to repay all or any portion of a Documentary Credit requested by it prior to its stated Expiry Date and, having given such notice, shall procure that the relevant Outstanding L/C Amount in respect of such Documentary Credit is reduced in accordance with such notice by providing cash cover therefor in accordance with Clause 1.3(s) (Construction) (in each case) or by reducing the Outstanding L/C Amount of such Documentary Credit or by cancelling such Documentary Credit and returning the original to the relevant L/C Bank or the Facility Agent on behalf of the Lenders.

 

8.4 Final Repayment

The Company shall procure that all amounts outstanding under the Revolving Facility shall be repaid in full on its Final Maturity Date.

 

9. REPAYMENT OF TERM FACILITY OUTSTANDINGS

 

9.1 Repayment of Additional Facility Outstandings

The Borrowers under each Additional Facility shall repay (or procure the repayment of) the aggregate outstanding principal amount of the Additional Facility Advances under that Additional Facility on the Final Maturity Date applicable to such Additional Facility.

 

10. CANCELLATION

 

10.1 Voluntary Cancellation

The Company may, by giving to the Facility Agent not less than three Business Days prior written notice to that effect (unless the Instructing Group under the relevant Facility has given its prior consent to a shorter period) cancel any Available Facility in whole or any part (but if in part, in an amount that reduces the Sterling Amount of such Facility by a minimum amount of £5,000,000 and an integral multiple of £1,000,000) and any such cancellation shall (subject to the provisions of Clause 6.1(f) (Utilisation of Ancillary Facilities)), reduce the relevant Available Commitments of the Lenders rateably.

 

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10.2 Notice of Cancellation

Any notice of cancellation given by the Company pursuant to Clause 10.1 (Voluntary Cancellation) shall specify the date upon which such cancellation is to be made and the amount of such cancellation.

 

10.3 Cancellation of Available Commitments

 

  (a) On each Termination Date any Available Commitments in respect of the Facility to which such Termination Date relates shall automatically be cancelled and the Commitment of each Lender in relation to such Facility shall automatically be reduced to zero.

 

  (b) No Available Commitments which have been cancelled under this Agreement may thereafter be reinstated.

 

10.4 Right of Repayment and Cancellation in Relation to a Single Lender

 

  (a) If:

 

  (i) any sum payable to any Lender, Ancillary Facility Lender or L/C Bank by an Obligor is required to be increased under Clause 17.1 (Tax Gross-up);

 

  (ii) any Lender, Ancillary Facility Lender or L/C Bank claims indemnification from the Company or a Borrower under Clause 17.3 (Tax Indemnity) or Clause 18 (Increased Costs); or

 

  (iii) any Lender, Ancillary Facility Lender or L/C Bank invokes Clause 15.3 (Market disruption),

then, subject to paragraph (c) below:

 

  (A) if the circumstance relates to a Lender, the Company may:

 

  (1) arrange for the transfer or assignment in accordance with this Agreement of the whole (but at par only) of that Lender’s Commitment and participation in the Utilisations to a new or existing Lender willing to accept that transfer or assignment; or

 

  (2) give the Facility Agent notice of cancellation of that Lender’s Commitment and the Company’s intention to procure the repayment of that Lender’s participation in the Utilisation, whereupon the Commitment of that Lender shall immediately be reduced to zero;

 

  (B)

if the circumstance relates to an Ancillary Facility Lender, the Company may give the Facility Agent notice of cancellation of that Ancillary Facility Lender’s Ancillary Facility Commitment and the Company’s intention to procure the repayment of the utilisations of any Ancillary Facility granted by that Ancillary

 

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  Facility Lender, whereupon the Ancillary Facility Commitment of that Ancillary Facility Lender shall immediately be reduced to zero; and

 

  (C) if the circumstance relates to an L/C Bank, the Company may give the Facility Agent notice of repayment of any outstanding Documentary Credit issued by such L/C Bank and cancellation of the appointment of such L/C Bank as an L/C Bank under this Agreement in relation to any Documentary Credit to be issued in the future or the provision of full cash cover in respect of such L/C Bank’s maximum contingent liability under each outstanding Documentary Credit.

 

  (b) On the last day of each Interest Period or Term which ends after the Company has given notice under paragraph (a)(iii)(A)(2), (a)(iii)(B) or (a)(iii)(C) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation or utilisation of an Ancillary Facility is outstanding shall repay that Lender’s participation in that Utilisation or the utilisation of the Ancillary Facility granted by that Ancillary Facility Lender (together with all interest and other amounts accrued under the Relevant Finance Documents) or, as the case may be, provide full cash cover in respect of any Documentary Credit issued by that L/C Bank or any contingent liability under an Ancillary Facility.

 

  (c) The Company may only exercise its rights under paragraph (a) above if:

 

  (i) in the case of paragraphs (a)(i) and (a)(ii) above, the circumstance giving rise to the requirement or indemnification continues or, in the case of (a)(iii) no more than 90 days have elapsed since the relevant invoking of Clause 15.3 (Market disruption); and

 

  (ii) it gives the Facility Agent and the relevant Lender not less than five Business Days prior notice.

 

  (d) The replacement of a Lender pursuant to paragraph (a)(iii)(A)(1) above shall be subject to the following conditions:

 

  (i) no Relevant Finance Party shall have any obligation to find a replacement Lender;

 

  (ii) any replaced Lender shall not be required to refund, or to pay or surrender to any other Lender, any of the fees or other amounts received by that replaced Lender under any Relevant Finance Document; and

 

  (iii) any replacement of a Lender which is the Facility Agent shall not affect its role as the Facility Agent.

 

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10.5 Right of Cancellation in Relation to a Defaulting Lender

Without prejudice to the Company’s rights under Clause 2.2 (Increase):

 

  (a) If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent three Business Days notice of cancellation of each Available Commitment of that Lender.

 

  (b) On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

  (c) The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

 

11. VOLUNTARY PREPAYMENT

 

11.1 Voluntary Prepayment

 

  (a) Any Additional Facility Borrower may, by giving to the Facility Agent not less than three Business Days prior written notice to that effect (or such shorter period which is agreed between the Company and the Facility Agent), repay any Additional Facility Advance by such minimum amount as is agreed by the Company and the relevant Additional Facility Lender.

 

  (b) Any Borrower may, by giving to the Facility Agent not less than three Business Days prior written notice to that effect or such shorter period which is agreed between the Company and the Facility Agent repay a Revolving Facility Advance drawn by it in whole or in part (but if in part, in an amount that reduces the Sterling Amount of the Revolving Facility Advance by a minimum amount of £1,000,000 and an integral multiple of £500,000 together with accrued interest on the amount repaid without premium or penalty but subject to the payment of any Break Costs (if applicable).

 

11.2 Application of Repayments

Any voluntary prepayment made under Clause 11.1 (Voluntary Prepayment) shall be applied in repayment of any of the Term Facility Outstandings, any Revolving Facility Outstandings or any outstandings in relation to any Additional Facility that is a revolving facility, in whole or in part, as selected by the Company at its discretion.

 

11.3 Release from Obligation to Make Advances

A Lender for whose account a repayment is to be made under Clause 10.4 (Right of Repayment and Cancellation in Relation to a Single Lender) shall not be obliged to participate in the making of Advances (including Revolving Facility Advances) or in the issue or counter-guarantee in respect of Documentary Credits or in the provision of Ancillary Facilities on or after the date upon which the Facility Agent receives the relevant notice of intention to repay such Lender’s share of the Outstandings, on which date all of such Lender’s Available Commitments shall be cancelled and all of its Commitments shall be reduced to zero.

 

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11.4 Notice of Prepayment or Cancellation

Any notice of prepayment given by a Borrower pursuant to Clause 11.1 (Voluntary Prepayment) or Clause 10.4 (Right of Repayment and Cancellation in Relation to a Single Lender) and a notice of cancellation under Clause 10.2 (Notice of Cancellation) shall be irrevocable, shall specify the date upon which such prepayment is to be made and the amount of such prepayment and shall oblige that Borrower to make such prepayment on such date, provided that a notice of prepayment or cancellation may be conditional and not irrevocable provided that the Company or a Borrower shall within 10 Business Days’ notice from the Facility Agent indemnify any Lender in respect, and in the amount, of such Lender’s Break Costs as specified in such notice should cancellation or prepayment not occur on the date specified in the notice of cancellation or prepayment.

 

11.5 Restrictions on Repayment

No Borrower may repay all or any part of any Advance (including, at any time, a Revolving Facility Advance) except at the times and in the manner expressly provided for in this Agreement.

 

11.6 Cancellation upon Repayment

No amount repaid under this Agreement may subsequently be reborrowed other than any amount of a Revolving Facility Advance or Additional Facility Advance in relation to a revolving facility repaid in accordance with Clauses 8.1 (Repayment of Revolving Facility Advances) or 11.1 (Voluntary Prepayment) or any Documentary Credit repaid in accordance with this Agreement on or prior to the Final Maturity Date in respect of the Revolving Facility or an Additional Facility (as applicable) and upon any repayment (other than in respect of a Revolving Facility Advance) the availability of the relevant Facility shall be reduced by an amount corresponding to the amount of such repayment and the Available Commitment of each Lender in relation to that Facility shall be cancelled in an amount equal to such Lender’s Proportion of the amount repaid. For the avoidance of doubt, unless expressly agreed to the contrary in the relevant Ancillary Facility Documents, this Clause 11.6 (Cancellation upon Repayment) shall not apply to any Ancillary Facility.

 

12. MANDATORY PREPAYMENT AND CANCELLATION

 

12.1 Change of Control

 

  (a) Change of Control” means:

 

  (i) the Controlling Company (A) ceases to be the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent; and (B) ceases, by virtue of any powers conferred by the articles of association or other documents regulating the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, to, directly or indirectly, direct or cause the direction of management and policies of the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable;

 

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  (ii) the sale, lease, transfer, conveyance or other disposition (other than by way of a merger or consolidation) in one or a series of related transactions, of all or substantially all of the assets of the Company, a Permitted Affiliate Parent (after any Permitted Affiliate Group Designation Date) and the Restricted Subsidiaries (taken as a whole) to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted Holder (other than as a result of the transfer of receivables to any Asset Securitisation Subsidiary in connection with any asset securitisation programme or programmes and/or one or more receivables factoring transactions);

 

  (iii) at any time after a Permitted Affiliate Group Designation Date, any Permitted Affiliate Holdco ceases to be the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) directly or indirectly of 100 per cent. of the total voting power of the Voting Stock of any Permitted Affiliate Parent; or

provided that a Change of Control shall not be deemed to have occurred:

 

  (A) pursuant to paragraph (a)(i) of this definition upon the consummation of the Post-Closing Reorganisation or a Spin-Off; and

 

  (B) pursuant to paragraphs (a)(i) and (a)(iii) of this definition upon the liquidation on a solvent basis of a Permitted Affiliate Holdco provided that:

 

  (1) 100 per cent. of the shares in the relevant Permitted Affiliate Parent continue to be secured in favour of the Finance Parties on a first ranking basis without any material adverse effect on the interests of the Finance Parties;

 

  (2) the successor Permitted Affiliate Holdco is not organised in a jurisdiction which would result in a materially adverse effect on the ability of the Finance Parties to enforce the Security over the shares in the relevant Permitted Affiliate Parent; and

 

  (3) the successor Permitted Affiliate Holdco is the sole shareholder of the relevant Permitted Affiliate Parent; and

 

  (C) pursuant to paragraphs (a)(i) and (a)(iii) of this definition as a result of any sale of 100 per cent. of the shares in a Permitted Affiliate Parent by a Permitted Affiliate Holdco provided that such sale falls within one or more of the paragraphs of the definition of Permitted Disposal.

 

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  (b) Notwithstanding the foregoing, upon consummation of the Post-Closing Reorganisation or a Spin-Off, “the Controlling Company” in paragraph (i) above will be replaced with New Intermediate Holdco, in respect of the Post-Closing Reorganisation, and the Spin Parent, in respect of a Spin-Off. For the purpose of this Clause 12 (Mandatory Prepayment and Cancellation) only:

 

  (i) Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of interests in (howsoever designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

 

  (ii) Controlling Company” means:

 

  (A) at any prior to a Permitted Affiliate Group Designation Date, Virgin Media Communications and its successors;

 

  (B) at any time on or after a Permitted Affiliate Group Designation Date, the Common Holding Company and its successors;

 

  (iii) New Intermediate Holdco” means the direct Subsidiary of the Ultimate Parent following the Post Closing Reorganisation.

 

  (iv) Permitted Holder” means, collectively:

 

  (A) the Ultimate Parent;

 

  (B) in the event of a Spin-Off, the Spin Parent and any Subsidiary of the Spin Parent; and

 

  (C) each Affiliate or Related Person of a Permitted Holder described in (A) above, and any successor to such Permitted Holder, Affiliate or Related Person;

 

  (D) any Person who is acting as an underwriter in connection with any public or private offering of Capital Stock of the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, acting in such capacity; and

 

  (E)

any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) whose acquisition of “beneficial ownership” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of Voting Stock or all or substantially all of the assets of the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent and its Restricted Subsidiaries (taken as a whole) would constitute a Change of Control in respect of which the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable has provided a notice to the Facility Agent under Clause 12.1(c)(i) (Change of Control) and the Facility Agent has not, within 60 Business Days of receipt of such notice,

 

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  provided a notice to the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, under Clause 12.1(c)(ii) (Change of Control) cancelling the Facilities and/or declaring all outstanding Advances to be immediately due and payable.

 

  (v) Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organisation, limited liability company, government or any agency of political subdivision hereof or any other entity.

 

  (vi) Post Closing Reorganisation” means (A) a distribution or other transfer of Virgin Media Communications and its Subsidiaries or a Holding Company of Virgin Media Communications and its Subsidiaries to the Ultimate Parent or another direct Subsidiary of the Ultimate Parent through one or more mergers, transfers, consolidations or other similar transactions such that Virgin Media Communications or such Holding Company will become the direct Subsidiary of the Ultimate Parent or such other direct Subsidiary of the Ultimate Parent; (B) the insertion of a new entity as a direct Subsidiary of Virgin Media Communications, which new entity will become a Holding Company of the Virgin Media Finance plc; and/or (C) the issuance by Virgin Media Communications or the Virgin Media Finance plc of Capital Stock to the Ultimate Parent or another direct Subsidiary of the Ultimate Parent and, as consideration therefor, the assignment by the Ultimate Parent or a direct Subsidiary of the Ultimate Parent of a loan receivable to Virgin Media Communications or Virgin Media Finance plc, as the case may be.

 

  (vii) Preferred Stock”, as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.

 

  (viii) Related Person” with respect to any Permitted Holder, means:

 

  (A) any controlling equity holder or majority (or more) owned Subsidiary of such Permitted Holder; or

 

  (B) in the case of an individual, any spouse, family member or relative of such individual, any trust or partnership for the benefit of one or more of such individual and any such spouse, family member or relative, or the estate, executor, administrator, committee or beneficiaries of any thereof; or

 

  (C) any trust, corporation, partnership or other person for which one or more of the Permitted Holders and other Related Persons of any thereof constitute the beneficiaries, stockholders, partners or owners thereof, or Persons beneficially holding in the aggregate a majority (or more) controlling interest therein.

 

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  (ix) Spin-Off” means a transaction by which all outstanding ordinary shares of Virgin Media Communications or any of its Holding Companies directly or indirectly owned by the Ultimate Parent and, after any Permitted Affiliate Group Designation Date, a Holding Company of the Company and the Permitted Affiliate Parent are distributed to all of the Ultimate Parent’s shareholders in proportion to such shareholders’ holdings in the Ultimate Parent at the time of such transaction either directly or indirectly through the distribution of shares in a company holding Virgin Media Communications’ shares or such Holding Company’s shares.

 

  (x) Spin Parent” means the company the shares of which are distributed to the shareholders of the Ultimate Parent pursuant to the Spin-Off.

 

  (xi) Virgin Media Communications” means Virgin Media Communications Limited (a company registered in England and Wales with registered number 03521915), together with its successors (by merger, consolidation, transfer, conversion of legal form or otherwise).

 

  (xii) Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors.

 

  (c) Upon becoming aware of a Change of Control:

 

  (i) the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, shall promptly notify the Facility Agent; and

 

  (ii) if the Instructing Group so require, the Facility Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility and declare all outstanding Advances, together with accrued interest and all other relevant amounts accrued under the Relevant Finance Documents immediately due and payable, whereupon each Facility will be cancelled and all such outstanding amounts will become immediately due and payable.

 

12.2 Mandatory prepayment from disposal proceeds

 

  (a) Other than as provided in paragraphs (b) and (c) below, on a Permitted Disposal (other than (i) an amount equal to the greater of the first £200,000,000 of Net Proceeds and two per cent. of Total Assets of each Content Transaction or (ii) a disposal in accordance with Clause 23.11(b)(i) to (xliv) (Disposals)), the Company shall procure that an amount of the Facilities is prepaid which is the lesser of:

 

  (i) the amount of the Net Proceeds of such a disposal; and

 

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  (ii) an amount so as to ensure that the financial ratio set out in Clause 22.2 (Financial Ratio) for the most recent Ratio Period ending prior to the receipt of such Net Proceeds would not be breached if such financial ratio was tested for that most recent Ratio Period taking into account (on a pro-forma basis) the amount of such prepayment (but ignoring such Net Proceeds),

provided that there shall be no requirement to make a prepayment if the financial ratio set out in Clause 22.2 (Financial Ratio) was not required to be tested for the most recent Ratio Period ending prior to the receipt of such Net Proceeds.

Any such amount shall be applied against the Facilities in accordance with Clause 12.3 (Application of mandatory prepayments and cancellations).

 

  (b) No prepayment in accordance with paragraph (a) above is required:

 

  (i) where the amount of any such prepayment would be less than the greater of £200,000,000 and two per cent. of Total Assets; or

 

  (ii) in connection with any Permitted Disposal where an amount equal to the amount of such prepayment is reinvested in assets in the Business (for the avoidance of doubt, including Permitted Acquisitions, Capital Expenditure, Operational Expenditure and Permitted Joint Ventures). Any amount that has not been:

 

  (A) contracted to be so reinvested within 12 months of the relevant Permitted Disposal; and

 

  (B) so reinvested within 18 months of the relevant Permitted Disposal (“Reinvestment End Date”),

shall be applied in prepayment of the Facilities in accordance with Clause 12.3 (Application of mandatory prepayments and cancellations) provided that on the Reinvestment End Date, the Company shall procure that an amount of the Facilities is prepaid which is the lesser of:

 

  (1) the amount of the Net Proceeds of such a disposal; and

 

  (2) an amount so as to ensure that the financial ratio set out in Clause 22.2 (Financial Ratio) for the most recent Ratio Period ending prior to the Reinvestment End Date would not be breached if such financial ratio was tested for that most recent Ratio Period taking into account (on a pro-forma basis) the amount of such prepayment (but ignoring such Net Proceeds),

provided that there shall be no requirement to make a prepayment if the financial ratio set out in Clause 22.2 (Financial Ratio) was not required to be tested for the most recent Ratio Period ending prior to the Reinvestment End Date.

 

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  (c) The Facility Agent may, with the approval of the Instructing Group, waive the requirement for the Borrowers to make a prepayment in accordance with paragraph (a). Notwithstanding any such waiver, the Borrowers shall in any event be required to prepay an amount of the Facilities to ensure that the financial ratio set out in Clause 22.2 (Financial ratio) for the Latest Ratio Period (as defined in Clause 23.11(d)) (Disposals)) in respect of the relevant disposal would not be breached if such financial ratio were tested for that Latest Ratio Period taking into account all disposals made since the last day of that Latest Ratio Period and the amount of such prepayment.

 

12.3 Application of mandatory prepayments and cancellations

 

  (a) A prepayment of Utilisations or cancellation of Available Commitments made under Clause 12.2 (Mandatory prepayment from disposal proceeds) shall be applied in the following order:

 

  (i) first, in prepayment of Advances made under the Term Facilities as contemplated in paragraphs (b) to (e) inclusive below;

 

  (ii) secondly, in prepayment of, at the election of the Company, Revolving Facility Outstandings and/or outstanding Additional Facility Advances in relation to an Additional Facility that is a revolving facility such that:

 

  (A) they are prepaid on a pro rata basis; and

 

  (B) Revolving Facility Advances and applicable Additional Facility Advances shall be prepaid before any Outstanding L/C Amounts (which shall then be prepaid on a pro rata basis)),

and cancellation, in each case, of the corresponding Revolving Facility Commitments and Additional Facility Commitments; and

 

  (iii) then, in:

 

  (A) repayment of the Ancillary Facility Outstandings (and cancellation of corresponding Ancillary Facility Commitments); and

 

  (B) cancellation of Ancillary Facility Commitments; and

 

  (iv) finally, (on a pro rata basis) cancellation of the Revolving Facility Commitments and the Additional Facility Commitments in relation to any Additional Facility that is a revolving facility.

 

  (b) Unless the relevant Borrower makes an election under paragraph (d) below or notifies the Facility Agent that it intends to reinvest the Net Proceeds in assets in the Business of the Bank Group in accordance with Clause 12.2 (Mandatory prepayment from disposal proceeds) above, it shall prepay Advances promptly upon receipt of the Net Proceeds of the Acquisition.

 

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  (c) A prepayment under Clause 12.2 (Mandatory prepayment from disposal proceeds) shall prepay the Advances made under the Term Facilities at the discretion of the relevant Borrower.

 

  (d) Subject to paragraph (e) below, a Borrower may elect that any prepayment under Clause 12.2 (Mandatory prepayment from disposal proceeds) be applied in prepayment of an Advance on the last day of the Interest Period or Term relating to that Advance. If the relevant Borrower makes that election then a proportion of the Advance equal to the amount of the relevant prepayment will be due and payable on the last day of its Interest Period or Term.

 

  (e) If a Borrower has made an election under paragraph (d) above but a Default has occurred and is continuing, that election shall no longer apply and a proportion of the Advance in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Instructing Group otherwise agree in writing).

 

12.4 Right of prepayment and cancellation in relation to a single Lender

 

  (a) If:

 

  (i) any sum payable to any Lender by a Borrower is required to be increased under Clause 17.1 (Tax Gross-up); or

 

  (ii) any Lender claims indemnification from a Borrower under Clause 17.3 (Tax Indemnity) and Clause 18.1 (Increased Costs),

the relevant Borrower may, whilst the circumstance giving rise to the requirement or indemnification continues, in respect only of the Facilities made available to it, give the Facility Agent notice of cancellation of the relevant Facility Commitment (as applicable) of that Lender and its intention to procure the repayment of that Lender’s participation in all relevant Advances.

 

  (b) On receipt of a notice referred to in paragraph (a) above, the relevant Facility Commitment of that Lender shall each immediately be reduced to zero.

 

  (c) On the last day of each Interest Period which ends after the relevant Borrower has given notice under paragraph (a) above (or, if earlier, the date specified by that Borrower in that notice), the relevant Borrower shall repay that Lender’s participation in all relevant Advances.

 

  (d) Prepayments made pursuant to this Clause 12.4 (Right of prepayment and cancellation in relation to a single Lender) shall be applied against the outstanding Advances pro rata.

 

12.5 Miscellaneous provisions

 

  (a) All prepayments under this Agreement shall be made together with accrued interest on the amount prepaid and any other amounts due under this Agreement in respect of that prepayment and, subject to Clause 30.2 (Break Costs), without premium or penalty.

 

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  (b) No prepayment or cancellation is permitted except in accordance with the express terms of this Agreement.

 

  (c) Any prepayment in part of any Advance shall be applied against the participations of the Lenders in that Advance pro rata.

 

  (d) Any Lender may waive its right to be prepaid any amount under this Clause 12 (Mandatory Prepayment and Cancellation) and such amount may, subject to the terms of any other Relevant Finance Document, be retained or applied in any manner by the Company in its sole discretion.

 

13. INTEREST ON REVOLVING FACILITY ADVANCES

 

13.1 Interest Payment Date for Revolving Facility Advances

On (a) each Repayment Date (and, if the Term of any Revolving Facility Advance or Interest Period of an Additional Facility Advance in relation to a revolving facility exceeds six months, on the expiry of each period of six months during such Term) or (b) if Clause 17.2(d) (Lender Tax Status) applies, the relevant Confirmation Date, the relevant Borrowers shall pay accrued interest on each Revolving Facility Advance and Additional Facility Advance in relation to a revolving facility made to it.

 

13.2 Interest Rate for Revolving Facility Advances

The rate of interest applicable to each Revolving Facility Advance during its Term shall be the rate per annum which is the sum of the Revolving Facility Margin and, in relation to any Revolving Facility Advance denominated in euro, EURIBOR, or in relation to any Revolving Facility Advance denominated in any other currency, LIBOR, for the relevant Term.

 

14. INTEREST ON TERM FACILITY ADVANCES

 

14.1 Interest Periods for Term Facility Advances

The period for which a Term Facility Advance is outstanding shall be divided into successive periods (each an “Interest Period”) each of which (other than the first) shall start on the last day of the preceding such period.

 

14.2 Duration

The duration of each Interest Period shall, save as otherwise provided in this Agreement, be one, two, three or six months in respect of each Term Facility, or, in each case, such other period of up to 12 months as all the Lenders holding Commitments (in the case of the first Interest Period for a Term Facility Advance, and thereafter, Outstandings) under the relevant Facility may agree with the Borrower, in each case, as the Borrower may select by no later than 9:30am on the date falling three Business Days before the first day of the relevant Interest Period, provided that:

 

  (a) if such Borrower fails to give such notice of selection in relation to an Interest Period, the duration of that Interest Period shall, subject to the other provisions of this Clause 14 (Interest on Term Facility Advances), be three months; and

 

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  (b) any Interest Period that would otherwise end during the month preceding or extend beyond a Repayment Date relating to the Term Facility Outstandings shall be of such duration that it shall end on that Repayment Date if necessary to ensure that there are Advances under the relevant Term Facility with Interest Periods ending on the relevant Repayment Date in a sufficient aggregate amount to make the repayment due on that Repayment Date.

 

14.3 Consolidation and Division of Term Facility Advances

 

  (a) Subject to paragraph (b) below, if two or more Interest Periods:

 

  (i) relate to Term Facility Advances under the same Term Facility made to the same Borrower in the same currency; and

 

  (ii) end on the same date,

those Term Facility Advances will, unless that Borrower (or the Company on its behalf) specifies to the contrary for the next Interest Period, be consolidated into, and treated as, a single Term Facility Advance on the last day of the Interest Period.

 

  (b) Subject to the requirements of Clause 14.2 (Duration), a Borrower (or the Company on its behalf) may, by no later than 9:30am on the date falling three Business Days before the first day of the relevant Interest Period, direct that any Term Facility Advance borrowed by it shall, at the beginning of the next Interest Period relating to it, be divided into (and thereafter, save as otherwise provided in this Agreement, be treated in all respects as) two or more Advances in such amounts (equal in aggregate to the Sterling Amount of the Term Facility Advance being so divided) as shall be specified by that Borrower or the Company in such notice provided that no such direction may be made if:

 

  (i) as a result of so doing, there would be more than 10 Advances outstanding under the relevant Term Facility; or

 

  (ii) any Term Facility Advance thereby coming into existence would have a Sterling Amount of less than £25,000,000.

 

14.4 Payment of Interest for Term Facility Advances

On (a) the last day of each Interest Period (or if such day is not a Business Day, on the immediately succeeding Business Day in the then current month (if there is one) or the preceding Business Day (if there is not)), and if the relevant Interest Period exceeds six months, on the expiry of each six month period during that Interest Period, or (b) if Clause 17.2(d) (Lender Tax Status) applies, the relevant Confirmation Date, the relevant Borrower shall pay accrued interest on the Term Facility Advance to which such Interest Period relates.

 

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14.5 Interest Rate for Term Facility Advances

The rate of interest applicable to a Term Facility Advance at any time during an Interest Period relating to it shall be the rate per annum which is the sum of the Margin and, LIBOR, for such Interest Period.

 

14.6 Interest on Additional Facilities

The rate of interest on any Additional Facility and the timing of payment of such interest shall be regulated by the relevant Additional Facility Accession Deed.

 

14.7 Notification

The Facility Agent shall promptly notify the relevant Borrowers and the Lenders of each determination of LIBOR, EURIBOR and any change to the proposed length of a Term or Interest Period or any interest rate occasioned by the operation of Clause 15 (Market Disruption and Alternative Interest Rates).

 

15. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES

 

15.1 Unavailability of Screen Rate

 

  (a) Interpolated Screen Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for the Interest Period or Term of an Advance, the applicable LIBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Advance.

 

  (b) Shortened Interest Period: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for:

 

  (i) the currency of an Advance; or

 

  (ii) the Interest Period or Term of an Advance and it is not possible to calculate the Interpolated Screen Rate,

the Interest Period of that Advance shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable LIBOR or EURIBOR for that shortened Interest Period shall be determined pursuant to the definition of “LIBOR” or “EURIBOR” as applicable.

 

  (c) Shortened Interest Period and Historic Screen Rate: If the Interest Period of an Advance is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for LIBOR or, if applicable EURIBOR for:

 

  (i) the currency of that Advance; or

 

  (ii) the Interest Period or Term of that Advance and it is not possible to calculate the Interpolated Screen Rate, the applicable LIBOR or EURIBOR shall be the Historic Screen Rate for that Advance.

 

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  (d) Shortened Interest Period and Interpolated Historic Screen Rate: If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period or Term of that Advance, the applicable LIBOR or EURIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period or Term of that Advance.

 

  (e) Reference Bank Rate: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period or Term of that Advance shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable LIBOR or EURIBOR shall be the Reference Bank Rate as of the Specified Time for the currency of that Advance and for a period equal in length to the Interest Period or Term of that Advance.

 

  (f) Alternative Reference Bank Rate: If paragraph (e) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period or Term the applicable LIBOR or EURIBOR shall be the Alternative Reference Bank Rate as of the Specified Time for the currency of that Advance and for a period equal in length to the Interest Period or Term of that Advance.

 

  (g) Cost of funds: If paragraph (f) above applies but no Alternative Reference Bank Rate is available for the relevant currency or Interest Period or Term there shall be no LIBOR or EURIBOR for that Advance and Clause 15.4 (Cost of funds) shall apply to that Advance for that Interest Period or Term.

 

15.2 Calculation of Reference Bank Rate and Alternative Reference Bank Rate

 

  (a) Subject to paragraph (b) below, if LIBOR or EURIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

 

  (b) If at or about noon on the Quotation Date none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period or Term.

 

  (c) Subject to paragraph (d) below, if LIBOR or EURIBOR is to be determined on the basis of an Alternative Reference Bank Rate but an Alternative Reference Bank does not supply a quotation by the Specified Time, the Alternative Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Alternative Reference Banks.

 

  (d) If before close of business in London on the date falling one Business Day after the Quotation Date none or only one of the Alternative Reference Banks supplies a quotation, there shall be no Alternative Reference Bank Rate for the relevant Interest Period or Term.

 

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15.3 Market disruption

 

  (a) If LIBOR or, if applicable, EURIBOR is determined otherwise than on the basis of an Alternative Reference Bank Rate and before close of business in London on the Quotation Date for the relevant Interest Period or Term, the Facility Agent receives notifications from a Lender or Lenders (whose participations in an Advance exceed 40 per cent. of that Advance) that the cost to it of funding its participation in that Advance from whatever source it may reasonably select would be in excess of LIBOR or, if applicable, EURIBOR then the applicable LIBOR or EURIBOR shall be the Alternative Reference Bank Rate as of the Specified Time for the currency of the Advance and for a period equal in length to the Interest Period or Term of that Advance and if no Alternative Reference Bank Rate is available for the relevant currency or Interest Period or Term there shall be no LIBOR or EURIBOR for that Advance and Clause 15.4 (Cost of funds) shall apply to that Advance for the relevant Interest Period or Term.

 

  (b) If LIBOR or, if applicable, EURIBOR is determined on the basis of an Alternative Reference Bank Rate and before close of business in London on the date falling one Business Day after the Quotation Date for the relevant Interest Period or Term of the Advance the Facility Agent receives notifications from a Lender or Lenders (whose participations in an Advance exceed 40 per cent. of that Advance) that the cost to it of funding its participation in that Advance from whatever source it may reasonably select would be in excess of LIBOR or, if applicable, EURIBOR then Clause 15.4 (Cost of funds) shall apply to that Advance for the relevant Interest Period or Term.

 

15.4 Cost of funds

 

  (a) If this Clause 15.4 (Cost of funds) applies, the rate of interest on each Lender’s share of the relevant Advance for the relevant Interest Period or Term shall be the percentage rate per annum which is the sum of:

 

  (i) the Margin; and

 

  (ii) the rate notified to the Facility Agent by that Lender as soon as practicable and in any event within one Business Day of the first day of that Interest Period (or, if earlier, on the date falling five Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Advance from whatever source it may reasonably select.

 

  (b) If this Clause 15.4 (Cost of funds) applies and the Facility Agent or the Company so requires, the Facility Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

  (c) Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

 

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  (d) If this Clause 15.4 (Cost of funds) applies pursuant to Clause 15.3 (Market disruption): and

 

  (i) a Lender’s Funding Rate is less than LIBOR or, in relation to any Advance in euro, EURIBOR; or

 

  (ii) a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,

the cost to that Lender of funding its participation in that Advance for that Interest Period or Term shall be deemed, for the purposes of paragraph (a) above, to be LIBOR or, in relation to an Advance in euro, EURIBOR.

 

  (e) If this Clause 15.4 (Cost of funds) applies pursuant to Clause 15.1 (Unavailability of Screen Rate) but any Lender does not supply a quotation by the time specified in paragraph (a)(ii) above the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.

 

15.5 Notification to Company

If Clause 15.4 (Cost of funds) applies or if LIBOR or, if applicable, EURIBOR is to be determined on the basis of an Alternative Reference Bank Rate the Facility Agent shall, as soon as is practicable, notify the Company.

 

16. COMMISSIONS AND FEES

 

16.1 Commitment Fees

 

  (a) The Company shall pay (or procure the payment of) to the Facility Agent for the account of each relevant Lender (other than an Ancillary Facility Lender or any Additional Facility Lender) a commitment fee on the aggregate amount of such Lender’s Available Revolving Facility Commitment made available by it (other than any Ancillary Facility or any Additional Facility) from day to day during the period beginning on the Closing Date and ending on the Termination Date for the Revolving Facility. Such commitment fee shall be calculated at the rate of 40 per cent. of the Revolving Facility Margin and shall be payable in arrears on the last day of each successive period of three months which ends during such period and on the Termination Date for the Revolving Facility.

 

  (b) No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Available Revolving Facility Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

16.2 Arrangement, Ticking and Underwriting Fee

 

  (a) The Company shall pay (or procure the payment of) to the Bookrunners and Mandated Lead Arrangers, as applicable, the fees specified in the Fee Letter at the times and in the amounts specified in such letter.

 

  (b) The Company shall pay (or procure the payment of) to any Additional Facility Lenders the fees specified in the relevant Additional Facility Accession Deed at the times and in the amounts specified in such Additional Facility Accession Deed.

 

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16.3 Agency Fee

The Company shall pay (or procure the payment of) to the Facility Agent and the Security Trustee for their own account the fees specified in the letter dated on or about the date of this Agreement between the Facility Agent, the Security Trustee and the Company at the times and in the amounts specified in such letter.

 

16.4 Documentary Credit Fee

Each Borrower shall, in respect of each Documentary Credit issued on its behalf pay (or procure the payment of) to the Facility Agent for the account of each L/C Lender (for distribution in proportion to each L/C Lender’s L/C Proportion of such Documentary Credit) a documentary credit fee in the currency in which the relevant Documentary Credit is denominated at a rate equal to the applicable Revolving Facility Margin applied on the Outstanding L/C Amount in relation to such Documentary Credit (less any amount which has been repaid or prepaid). Such documentary credit fee shall be paid in arrears on each Quarter Date during the Term of the relevant Documentary Credit and on the relevant Expiry Date (or the date of its repayment, prepayment or cancellation, if earlier) for that Documentary Credit.

 

16.5 L/C Bank Fee

Each relevant Borrower shall pay (or procure the payment of) to any other L/C Bank a fronting fee in respect of each Documentary Credit requested by it and issued by that L/C Bank, in the amount and at the times agreed in any letter entered into between such L/C Bank and such Borrower.

 

17. TAXES

 

17.1 Tax Gross-up

 

  (a) Each payment made by the Parent or an Obligor under a Relevant Finance Document shall be made by it without any Tax Deduction, unless a Tax Deduction is required by Law. Any Tax Deduction in relation to any payment due in any currency other than Sterling shall be calculated using the Facility Agent’s Spot Rate of Exchange on the date such payment is made and the Parent and the Obligors shall have no liability if any subsequent credit or refund received by any Lender from any tax authority in relation thereto is in a different amount (when converted to the non-Sterling currency on any date).

 

  (b) As soon as it becomes aware that the Parent or an Obligor is or will be required by Law to make a Tax Deduction (or that there is any change in the rate at which or the basis on which such Tax Deduction is to be made) the Parent or the relevant Obligor shall notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent and the Parent upon becoming so aware in respect of a payment payable to that Lender.

 

  (c)

If a Tax Deduction is required by Law to be made by the Parent or an Obligor, the amount of the payment due shall, unless paragraph (f) below applies, be

 

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  increased to an amount so that, after the required Tax Deduction is made, the payee receives an amount equal to the amount it would have received had no Tax Deduction been required.

 

  (d) If a Tax Deduction is required by Law to be made by the Facility Agent or the Security Trustee (other than by reason of the Facility Agent or the Security Trustee performing its obligations as such under this Agreement through an office located outside the United Kingdom) from any payment to any Relevant Finance Party which represents an amount or amounts received from the Parent or an Obligor, either the Parent or that Obligor, as the case may be, shall, unless paragraph (f) below applies, pay directly to that Relevant Finance Party an amount which, after making the required Tax Deduction enables the payee of that amount to receive an amount equal to the payment which it would have received if no Tax Deduction had been required.

 

  (e) If a Tax Deduction is required by Law to be made by the Facility Agent or the Security Trustee from any payment to any Relevant Finance Party under paragraph (d) above, the Facility Agent or the Security Trustee as appropriate shall unless paragraph (g) below applies, make that Tax Deduction and any payment required in connection with that Tax Deduction to the relevant taxing authority within the time allowed and in the minimum amount required by Law and within 30 days of making either a Tax Deduction or any payment in connection with that Tax Deduction, the Facility Agent or the Security Trustee, as appropriate, making that Tax Deduction or other payment shall deliver to the relevant Borrower evidence that the Tax Deduction or other payment has been made or accounted for to the relevant tax authority.

 

  (f) Neither the Parent nor any Obligor is required to make a Tax Payment to a Lender under paragraphs (c) or (d) above for a Tax Deduction in respect of Tax imposed by the United Kingdom on a payment of interest by a UK Borrower in respect of a participation in an Advance by that Lender to any UK Borrower where that Lender is not a Qualifying UK Lender on the date on which the relevant payment of interest is due (otherwise than as a consequence of a Change in Tax Law) to the extent that payment could have been made without a Tax Deduction if that Lender had been a Qualifying UK Lender on that date.

 

  (g) The Parent or the relevant Obligor (as the case may be) which is required to make a Tax Deduction shall make that Tax Deduction and any payment required in connection with that Tax Deduction to the relevant taxing authority within the time allowed and in the minimum amount required by Law.

 

  (h) Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, either the Parent or the relevant Obligor making that Tax Deduction or other payment shall deliver to the Facility Agent for the Relevant Finance Party entitled to the interest to which such Tax Deduction or payment relates, evidence that the Tax Deduction or other payment has been made or accounted for to the relevant tax authority.

 

  (i)

Each party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA

 

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  Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

17.2 Lender Tax Status

 

  (a) Each Lender to any UK Borrower represents and warrants to the Facility Agent and to each UK Borrower:

 

  (i) in the case of an Original Lender, that as at the date of this Agreement, it has the tax status set out opposite its name in Part 2 of Schedule 1 (Lenders Tax Status); or

 

  (ii) in the case of any other Lender, that as at the relevant Transfer Date, Increase Date or the date of the relevant Additional Facility Accession Deed, it is:

 

  (A) a UK Bank Lender;

 

  (B) a UK Non-Bank Lender and falls within paragraph (a) or (b) of the definition thereof; or

 

  (C) a UK Treaty Lender,

as the same shall be expressly indicated in the relevant Transfer Deed, Transfer Agreement, Increase Confirmation or Additional Facility Accession Deed.

 

  (b) Each Lender expressed to be a “UK Non-Bank Lender” in Part 2 of Schedule 1 (Lenders Tax Status) or in the Transfer Deed, Transfer Agreement, Additional Facility Accession Deed or Increase Confirmation pursuant to which it becomes a Lender represents and warrants to:

 

  (i) the Facility Agent and to each UK Borrower, on the date of this Agreement, or on the relevant Transfer Date, Increase Date or the date of the relevant Additional Facility Accession Deed (as the case may be) that it is within paragraph (a) of the definition of UK Non-Bank Lender on that date (unless, if it is not within such paragraph (a), it is within paragraph (b) of such definition on that date, and has notified the Facility Agent of the circumstances by virtue of which it falls within such paragraph (b) and has provided evidence of the same to the Company if and to the extent requested to do so, by the Facility Agent or the Company); and

 

  (ii) the Facility Agent and to each UK Borrower, that unless it notifies the Facility Agent and the Company to the contrary in writing prior to any such date, its representation and warranty in paragraph (i) above is true in relation to that Lender’s participation in each Advance made to such Borrowers, on each date that such UK Borrower makes a payment of interest in relation to such Advance.

 

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  (c)        (i) A Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Facility Agent and without liability to any Parent Entity or any Obligor) by including its scheme reference number and its jurisdiction of tax residence opposite its name in Part 2 of Schedule 1 (Lenders Tax Status).

 

  (i) A New Lender, an Additional Facility Lender or an Increase Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Facility Agent and without liability to any Parent Entity or any Obligor) by including its scheme reference number and its jurisdiction of tax residence in the Transfer Deed, Transfer Agreement, Additional Facility Accession Deed or Increase Confirmation which it executes.

 

  (ii) If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (c)(i) or (ii) above, then neither any Parent Entity nor any Obligor shall make any filing under or in relation to the HMRC DT Treaty Passport Scheme in respect of that Lender’s Commitment(s) or is participation in any Advance unless that Lender otherwise agrees.

 

  (iii) The Parent or the relevant Obligor that makes a payment to which that Lender is entitled shall cooperate with the Lender in completing any procedural formalities as may be necessary for either the Parent or the relevant Obligor to obtain authorisation to make that payment without a Tax Deduction (including where a Lender includes the indication described in paragraphs (c)(i) or (ii) above, filing with HMRC, within any applicable time limit, a form DTTP2 or such equivalent or other HMRC form(s) as may be required to be filed pursuant to the HMRC DT Treaty Passport Scheme in respect of that Lender, completed in accordance with the information provided by that Lender); provided, however, that nothing in this paragraph (c)(iii) shall require a Lender to disclose any confidential information or information regarding its business, tax affairs or tax computations (including, without limitation, its tax returns or its calculations).

 

  (d)        (i) If, in relation to any interest payment to a Lender on an Advance made to a UK Borrower:

 

  (A) that Lender has confirmed to the relevant UK Borrower and to the Facility Agent before that interest payment would otherwise fall due that:

 

  (1) it has completed, where applicable, the necessary procedural formalities referred to in, and otherwise complied with, paragraph (c) above; and

 

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  (2) H.M. Revenue & Customs has not declined to issue the authorisation referred to in the definition of “UK Treaty Lender” (the “Authorisation”) in respect of that Lender in relation to that Advance, or if H.M. Revenue & Customs has declined, the Lender is disputing that decision in good faith; and

 

  (B) the relevant UK Borrower has not received the Authorisation,

then, such Lender may elect, by not less than five Business Days prior confirmation in writing to the Facility Agent, that such interest payment (the “Relevant Interest Payment”) shall not be due and payable under Clause 13.1 (Interest Payment Date for Revolving Facility Advances) or Clause 14.4 (Payment of Interest for Term Facility Advances) (as applicable) until the date (the “Confirmation Date”) which is five Business Days after the earlier of:

 

  (C) the date on which the Authorisation is received by the relevant UK Borrower;

 

  (D) the date that Lender confirms to the relevant UK Borrower and the Facility Agent that it is not entitled to claim full relief from liability to taxation otherwise imposed by the United Kingdom (in relation to that Lender’s participation in Advances made to that UK Borrower) on interest under a Double Taxation Treaty in relation to the relevant Interest Payment; and

 

  (E) the earlier of (1) the date which is six months after the date on which the relevant Interest Payment had otherwise been due and payable and (2) the date of final repayment (whether scheduled, voluntary or mandatory) of principal in respect of the relevant Interest Payment.

 

  (ii) For the avoidance of doubt, in the event that paragraph (i) above applies, the Interest Period or Term to which the relevant Interest Payment relates shall not be extended and the start of the immediately succeeding Interest Period or Term shall not be delayed.

 

  (e) Any Lender which was a Qualifying UK Lender when it became party to this Agreement but subsequently ceases to be a Qualifying UK Lender (other than by reason of a Change in Tax Law in the United Kingdom) shall promptly notify the UK Borrowers of that event, provided that if there is a Change in Tax Law in the United Kingdom which in the reasonable opinion of such UK Borrowers may result in any Lender which was a Qualifying UK Lender when it became a party to this Agreement ceasing to be a Qualifying UK Lender, such Qualifying UK Lender shall co-operate with such UK Borrowers and provide reasonable evidence requested by such UK Borrowers in order for such UK Borrowers to determine whether such Lender has ceased to be a Qualifying UK Lender provided, however, that nothing in this paragraph (e) shall require a Lender to disclose any confidential information or information regarding its business, tax affairs or tax computations (including without limitation, its tax returns or its calculations).

 

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  (f) For the purposes of paragraphs (a) to (e) above, each Lender shall promptly deliver such documents evidencing its corporate and tax status as the Facility Agent or the Company may reasonably request, provided that in the event that any Lender fails to comply with the foregoing requirement, any UK Borrower shall be permitted:

 

  (i) to withhold and retain an amount in respect of the applicable withholding tax estimated in good faith by the Borrower to be required to be withheld in respect of interest payable to such Lender; or

 

  (ii) subject to the provisions of paragraph (a) of Clause 36.4 (Assignments or Transfers by Lenders), to refuse to grant its consent to such transfer.

 

  (g) In the event that either the Facility Agent or the Company has reason to believe that any representation given by a Lender in accordance with this Clause 17.2 (Lender Tax Status) is incorrect or inaccurate, the Facility Agent or the Company (as the case may be) shall promptly inform the other party and the relevant Lender, and may thereafter request such documents relating to the corporate and tax status of such Lender as the Facility Agent or the Company may reasonably require for the purposes of determining whether or not such representation was indeed incorrect.

 

  (h) If, following delivery of such documentation and following consultation between the Facility Agent, the Company and the relevant Lender, the Company concludes (acting reasonably and in good faith) that there is insufficient evidence to determine the relevant tax status of such Lender, the UK Borrower shall be permitted in respect of such Lender, to withhold and retain an amount in respect of the applicable withholding tax estimated in good faith by the UK Borrower to be required to be withheld in respect of interest payable to such Lender until such time as that Lender has delivered sufficient evidence of its tax status to the Facility Agent and the Company.

 

  (i) Each Relevant Finance Party shall confirm whether it is entitled to receive payments under the Relevant Finance Documents free from withholding under FATCA and shall provide any documentation, forms and other information relating to its status under FATCA reasonably requested by the Facility Agent or a Borrower sufficient for the Facility Agent and the Borrowers to comply with their obligations under FATCA and to determine whether such Relevant Finance Party has complied with such applicable reporting requirements.

 

  (j) Solely in the case of a Tax Deduction imposed by a jurisdiction other than the United Kingdom, and notwithstanding any other provision of this Clause 17 (Taxes):

 

  (i)

any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made by a Borrower under any Relevant Finance Document shall deliver to the Borrowers and the Facility Agent, at the time or times reasonably requested by the

 

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  Borrowers or the Facility Agent (and promptly after the occurrence of a change in the Lender’s circumstance requiring a change in the most recent documentation previously delivered), such properly completed and executed documentation reasonably requested by the Borrower or the Facility Agent as will permit such payments to be made without withholding or at a reduced rate of withholding; and

 

  (ii) any Lender, if reasonably requested by the Borrowers or the Facility Agent, shall deliver such other documentation prescribed by an applicable requirement of law or reasonably requested by the Borrowers or the Facility Agent as will enable the Borrowers or the Facility Agent to determine whether or not such Lender is subject to withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. In the event that any Lender fails to comply with the foregoing requirement, any Borrower shall be permitted to withhold and retain an amount in respect of the applicable withholding tax (excluding for the avoidance of doubt, any withholding tax imposed by the United Kingdom) estimated in good faith by the Borrowers to be required to be withheld in respect of interest payable to such Lender. Neither any Parent Entity nor any Obligor is required to make a Tax Payment to a Lender under paragraphs (c) or (d) above to the extent such Taxes are attributable to a failure by a Lender to provide the documentation required to be delivered pursuant to the first sentence of this Clause 17.2(j) (Lender Tax Status). For the avoidance of doubt, nothing in this Clause 17.2(j) (Lender Tax Status) shall be understood to affect the rights of Lenders to a gross-up in respect of a Tax Deduction levied in the United Kingdom, but only to the extent permitted under Clause 17.1 (Tax Gross-up).

 

17.3 Tax Indemnity

 

  (a) Subject to paragraph (b) below, the Company shall (within 10 Business Days of written demand by the Facility Agent) pay (or procure that either the Parent or the relevant Obligor pays) for the account of a Protected Party an amount equal to any Tax Liability which that Protected Party reasonably determines has been or will be suffered by that Protected Party (directly or indirectly) in connection with any Relevant Finance Document. The Protected Party shall within five Business Days’ of request by the Company provide to the Company reasonable written details explaining the loss, liability or cost and the calculation of the amount claimed by the Protected Party.

 

  (b) Paragraph (a) above shall not apply:

 

  (i) with respect to any Tax Liability of a Protected Party in respect of Tax on Overall Net Income of that Protected Party;

 

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  (ii) to the extent that any Tax Liability has been compensated for by an increased payment or other payment under paragraphs (c) or (d) of Clause 17.1 (Tax Gross-up) or would have been compensated for by such an increased payment or other payment, but for the application of paragraph (f) of Clause 17.1 (Tax Gross-up);

 

  (iii) relates to a FATCA Deduction required to be made by a Party; or

 

  (iv) to the extent that any Tax Liability is suffered or incurred by a Finance Party in respect of a Bank Levy.

 

  (c) A Protected Party making, or intending to make, a claim pursuant to paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim together with supporting evidence, following which the Facility Agent shall notify the Company and provide such evidence to it.

 

  (d) A Protected Party shall, on receiving a payment from either the Parent or an Obligor under this Clause 17.3 (Tax Indemnity), notify the Facility Agent.

 

  (e) In this Clause 17.3 (Tax Indemnity):

Tax Liability” means, in respect of any Protected Party:

 

  (i) any liability or any increase in the liability of that person to make any payment of or in respect of tax;

 

  (ii) any loss of any relief, allowance, deduction or credit in respect of tax which would otherwise have been available to that person;

 

  (iii) any setting off against income, profits or gains or against any tax liability of any relief, allowance, deduction or credit in respect of tax which would otherwise have been available to that person; and

 

  (iv) any loss or setting off against any tax liability of a right to repayment of tax which would otherwise have been available to that person.

For this purpose, any question of whether or not any relief, allowance, deduction, credit or right to repayment of tax has been lost or set off in relation to any person, and if so, the date on which that loss or set off took place, shall be conclusively determined by that person, acting reasonably and in good faith and such determination shall be binding on the relevant parties to this Agreement.

Tax on Overall Net Income” means, in relation to a Protected Party, tax (other than tax deducted or withheld from any payment) imposed on the net income received or receivable (but not any sum deemed to be received or receivable) by that Protected Party by the jurisdiction in which the relevant Relevant Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which the Relevant Finance Party is treated as residing for tax purposes or in which the relevant Relevant Finance Party’s Facility Office or head office is situated.

 

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17.4 Tax Credit

 

  (a) If either the Parent or an Obligor makes a Tax Payment and the relevant Relevant Finance Party determines, in its sole opinion, that:

 

  (i) a Tax Credit is attributable to that Tax Payment; and

 

  (ii) that Relevant Finance Party has obtained, utilised and retained that Tax Credit,

the Relevant Finance Party shall (subject to paragraph (b) below and to the extent that such Relevant Finance Party can do so without prejudicing the availability and/or the amount of the Tax Credit and the right of that Relevant Finance Party to obtain any other benefit, relief or allowance which may be available to it) pay to either the Parent or the relevant Obligor such amount which that Relevant Finance Party determines, in its sole opinion, will leave it (after that payment) in the same after-tax position as it would have been in had the Tax Payment not been required to be made by the Parent or the relevant Obligor.

 

  (b) Each Relevant Finance Party shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilises any Tax Credits and shall not be obliged to arrange its business or its tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit.

 

  (c) No Relevant Finance Party shall be obliged to disclose to any other person any information regarding its business, tax affairs or tax computations (including, without limitation, its tax returns or its calculations).

 

  (d) If a Relevant Finance Party has made a payment to the Parent or an Obligor pursuant to this Clause 17.4 (Tax Credit) on account of a Tax Credit and it subsequently transpires that Relevant Finance Party did not receive that Tax Credit, or received a reduced Tax Credit, either the Parent or such Obligor, as the case may be, shall, on demand, pay to that Relevant Finance Party the amount which that Relevant Finance Party determines, acting reasonably and in good faith, will put it (after that payment is received) in the same after-tax position as it would have been in had no such payment or a reduced payment been made to the Parent or such Obligor.

 

  (e) No Relevant Finance Party shall be obliged to make any payment under this Clause 17.4 (Tax Credit) if, by doing so, it would contravene the terms of any applicable Law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).

 

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18. INCREASED COSTS

 

18.1 Increased Costs

Subject to Clause 18.3 (Exceptions), the Company shall, within three Business Days of a demand by the Facility Agent, pay (or procure the payment of) for the account of a Relevant Finance Party the amount of any Increased Cost incurred by that Relevant Finance Party or any of its Affiliates as a result (direct or indirect) of:

 

  (a) the introduction or implementation of or any change in (or any change in the interpretation, administration or application of) any Law, regulation, practice or concession or any directive, requirement, request or guideline (whether or not having the force of law but where such law, regulation, practice, concession, directive, requirement, request or guideline does not have the force of law, it is one with which banks or financial institutions subject to the same are generally accustomed to comply) of any central bank, including the European Central Bank, the Financial Services Authority or any other fiscal, monetary, regulatory or other authority after the date of this Agreement; or

 

  (b) compliance with any Law, regulation, practice, concession or any such directive, requirement, request or guideline made after the date of this Agreement.

 

18.2 Increased Costs Claims

 

  (a) A Relevant Finance Party intending to make a claim pursuant to Clause 18.1 (Increased Costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.

 

  (b) Each Relevant Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its, or if applicable, its Affiliate’s Increased Costs and setting out in reasonable detail the circumstances giving rise to such claim and its calculations in relation to such Increased Costs.

 

18.3 Exceptions

 

  (a) Clause 18.1 (Increased Costs) does not apply to the extent any Increased Cost:

 

  (i) is attributable to a Tax Deduction required by Law to be made by the Parent or an Obligor, as the case may be;

 

  (ii) is compensated for by Clause 17.3 (Tax Indemnity) (or would have been compensated for by Clause 17.3 (Tax Indemnity) but was not so compensated solely because Clause 17.3(b) (Tax Indemnity) applied) or because of any failure to complete necessary procedural formalities under Clause 17.2(c) (Lender Tax Status);

 

  (iii) is attributable to the gross negligence of or wilful breach by, the Relevant Finance Party or, if applicable, any of its Affiliates of any law, regulation, practice, concession, directive, requirement, request or guideline, to which the imposition of such Increased Cost relates;

 

  (iv) suffered by a Relevant Finance Party and in respect of which that Relevant Finance Party intends to make a claim pursuant to Clause 18.2(a) (Increased Costs Claims), is not (and its claim under Clause 18.2(a) (Increased Costs Claims) is not) notified by that Relevant Finance Party to the Facility Agent within 30 days of that Relevant Finance Party becoming aware that it had suffered the relevant Increased Cost; or

 

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  (v) is attributable to the implementation of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the Signing Date (“Basel II”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Relevant Finance Party or any of its Affiliates).

 

  (vi) attributable to a FATCA Deduction required to be made by a Party;

 

  (vii) is attributable to any Bank Levy but only to the extent that such Bank Levy is no more onerous than in respect of:

 

  A. a Bank Levy not yet enacted into law, any draft of such proposed Bank Levy as at the date of this Agreement; or

 

  B. any other Bank Levy, as set out under existing law as at the date of this Agreement; or

 

  (viii) attributable to the implementation or application of, or compliance with, Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV to the extent that a Finance Party knew about or could reasonably be expected to have known about the relevant Increased Cost on or prior to the date on which it became a Finance Party.

 

  (b) In this Clause 18.3 (Exceptions):

Basel III” means: (a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; (b) the rules for global systematically important banks contained in “Global systematically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended supplemented or restated; and (c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to implementing or modifying “Basel III” (in each case, whether such implementations, application or compliance is by a government, regulator, a Finance Party or any of its Affiliates).

CRD IV” means: (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and the prudential supervision of credit institutions and investment firms.

 

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19. ILLEGALITY

 

19.1 Illegality of a Lender

If at any time after a Lender becomes a party to this Agreement it becomes unlawful in any applicable jurisdiction for such Lender to perform any of its obligations as contemplated by this Agreement or any Ancillary Facility Document respectively or to make, fund, issue or maintain its participation in any Utilisation or, in the case of an Ancillary Facility Lender, any utilisation under any Ancillary Facility:

 

  (a) that Lender shall promptly notify the Facility Agent upon becoming aware of that event;

 

  (b) upon the Facility Agent notifying the Company, the Commitments of that Lender shall immediately be reduced to zero and cancelled or, if required by the Company, on such date transferred to another bank or institution willing to accept that transfer; and

 

  (c) upon the Facility Agent notifying the Company, the Company shall procure that each Borrower will, on such date as the Facility Agent shall have specified (being no earlier than the last day permitted by law):

 

  (i) repay that Lender’s participation in the Utilisations utilised by that Borrower (together with accrued interest on and all other amounts owing to that Lender under the Relevant Finance Documents) or, if required by the Company, that Lender’s participations shall on such date be transferred at par to another bank or institution willing to accept that transfer (to the extent it is lawful for such Lender to undertake such transfer); and/or

 

  (ii) repay each amount payable or, as the case may be, provide full cash cover in respect of each contingent liability under each Ancillary Facility of that Ancillary Facility Lender.

 

19.2 Illegality in Relation to an L/C Bank

If it becomes unlawful in any relevant jurisdiction for an L/C Bank to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Documentary Credit (an “Affected Documentary Credit”):

 

  (a) that L/C Bank shall promptly notify the Facility Agent upon becoming aware of that event:

 

  (b) upon the Facility Agent notifying the Company, that L/C Bank shall not be obliged to issue any future Documentary Credit that would give rise to such unlawfulness; and

 

  (c) upon the Facility Agent notifying the Company, each relevant Borrower shall use its best endeavours to procure the release of any Affected Documentary Credit.

 

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20. MITIGATION

 

20.1 Mitigation

 

  (a) Each Relevant Finance Party shall in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under, or pursuant to, or cancelled pursuant to, any of Clause 17 (Taxes), Clause 18 (Increased Costs) or Clause 19 (Illegality) including (but not limited to) transferring its rights and obligations under the Relevant Finance Documents to another Affiliate or Facility Office or financial institution acceptable to the Company which is willing to participate in any Facility in which such Lender has participated.

 

  (b) Paragraph (a) above does not in any way limit the obligations of the Parent or any Obligor under the Relevant Finance Documents.

 

20.2 Limitation of Liability

 

  (a) With effect from the Signing Date, each of the Borrowers agrees to indemnify each Relevant Finance Party for all costs and expenses reasonably incurred by that Relevant Finance Party as a result of steps taken by it under Clause 20.1 (Mitigation).

 

  (b) A Relevant Finance Party is not obliged to take any steps under Clause 20.1 (Mitigation) if, in the opinion of that Relevant Finance Party (acting reasonably), to do so might in any way be prejudicial to it.

 

21. REPRESENTATIONS AND WARRANTIES

 

21.1 Representations and warranties

The Parent and each Obligor, in relation to themselves and the Company, in relation to each other member of the Bank Group and member of the Joint Venture Group, in each case to the extent expressed to be applicable to them, makes the representations and warranties set out in this Clause 21 (Representations and warranties), other than Clauses 21.9 (Accounts), 21.10 (Financial condition) and Clause 21.14 (Tax liabilities), which shall only be made by the Company.

 

21.2 Status

 

  (a) It is a company duly organised or a partnership duly formed, in either case, validly existing under the laws of its jurisdiction of incorporation or establishment.

 

  (b) It has the power to own its assets and carry on its business as it is being conducted.

 

21.3 Powers and authority

It has the power:

 

  (a) to enter into and comply with all obligations expressed on its part under the Relevant Finance Documents; and

 

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  (b) (in the case of a Borrower) to borrow under this Agreement; and

 

  (c) (in the case of a Guarantor) to give the guarantee in Clause 28 (Guarantee and Indemnity),

 

  (d) and has taken all necessary actions to authorise the execution, delivery and performance of the Relevant Finance Documents to which it is a party.

 

21.4 Legal validity

 

  (a) Each Relevant Finance Document to which it is or will be a party constitutes, or when executed in accordance with its terms will constitute, its legal, valid and binding obligations enforceable, subject to any relevant reservations or qualifications as to matters of law contained in any legal opinion delivered under this Agreement, in accordance with its terms.

 

  (b) The choice of English law, or as the case may be, Delaware law, or as the case may be Scots law, as the governing law of the Relevant Finance Documents and its irrevocable submission to the jurisdiction of the courts of England in respect of any proceedings relating to the Relevant Finance Documents (in each case other than any Relevant Finance Document which is expressly to be governed by a law other than English law, or as the case may be, Delaware law, or as the case may be Scots law) will be recognised and enforced in its jurisdiction of incorporation, subject to any relevant reservation or qualification as to matters of law contained in any legal opinion referred to in paragraph (a) above.

 

  (c) Any judgment obtained in England in relation to a Relevant Finance Document (in each case other than any Security Document which is expressly to be governed by a law other than English law) will be recognised and enforced in its jurisdiction of incorporation, subject to any relevant reservation or qualification as to matters of law contained in any legal opinion referred to in paragraph (a) above.

 

21.5 Non-violation

The execution and delivery by it of, the Relevant Finance Documents to which it is a party, and its performance of the transactions contemplated thereby, will not violate:

 

  (a) in any material respect, any law or regulation or official judgment or decree applicable to it;

 

  (b) in any material respect, its constitutional documents; or

 

  (c) any agreement or instrument to which it is a party or binding on any of its assets or binding upon any other member of the Bank Group or any other member of the Bank Group’s assets, where such violation would or is reasonably likely to have a Material Adverse Effect.

 

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21.6 Consents

 

  (a) Subject to any relevant reservations or qualifications contained in any legal opinion referred to in Clause 21.4(a) (Legal validity) above, all material and necessary authorisations, registrations, consents, approvals, licences (other than the Licences), and filings required by it in connection with the execution, validity or enforceability of the Relevant Finance Documents to which it is a party and performance of the transactions contemplated by the Relevant Finance Documents have been obtained (or, if applicable, will be obtained within the required time period) and are validly existing.

 

  (b) The Licences are in full force and effect and each member of the Bank Group is in compliance in all material respects with all provisions thereof such that the Licences are not the subject of any pending or, to the best of its knowledge, threatened attack, suspension or revocation by a competent authority except, in each case, to the extent that any lack of effect, non-compliance or attack, suspension or revocation of a Licence would not have or not be reasonably likely to have a Material Adverse Effect.

 

  (c) All the Necessary Authorisations are in full force and effect, each member of the Bank Group is in compliance in all material respects with all provisions thereof and the Necessary Authorisations are not the subject of any pending or, to the best of its knowledge, threatened attack or revocation by any competent authority except, in each case, to the extent that any lack of effect, non-compliance or attack or revocation of a Necessary Authorisation would not have or not be reasonably likely to have a Material Adverse Effect.

 

21.7 Event of Default

No Event of Default has occurred and is continuing or will result from the making of any Advance.

 

21.8 Telecommunications, Cable and Broadcasting Laws

 

  (a) To the best of its knowledge and belief, it and each member of each Joint Venture Group is in compliance in all material respects with all Telecommunications, Cable and Broadcasting Laws (but excluding, for these purposes only, breaches of Telecommunications, Cable and Broadcasting Laws which have been expressly waived by the relevant regulatory authority), in each case, where failure to do so would reasonably be expected to have a Material Adverse Effect.

 

  (b) To the best of its knowledge and belief, it and each member of each Joint Venture Group is in compliance in all material respects with any conditions set by the Director General of Telecommunications or by OFCOM under section 45 of the Communications Act 2003 as are applicable to it or such member of the Joint Venture Group (as the case may be), in each case, where failure to do so would reasonably be expected to have a Material Adverse Effect.

 

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21.9 Accounts

 

  (a) The consolidated financial statements of the Reporting Entity most recently delivered to the Facility Agent (which, at the date of this Agreement are the Original Financial Statements):

 

  (i) present fairly in all material respects its financial position and the consolidated financial position of the Company as at the date to which they were drawn up; and

 

  (ii) have been prepared in all material respects in accordance with the Relevant Accounting Principles (except that such consolidated financial statements do not include all consolidated Subsidiaries to the extent they are Unrestricted Subsidiaries); and

 

  (b) the consolidated financial statements and other information related to the financial position of the Bank Group provided under this Agreement and most recently delivered to the Facility Agent are correct in all material respects.

 

21.10 Financial condition

There has been no material adverse change in the consolidated financial position of the Bank Group (taken as a whole) since the date of the Original Financial Statements which would or is reasonably likely to have a Material Adverse Effect.

 

21.11 Environmental laws

 

  (a) Each member of the Bank Group is in compliance with Clause 23.33 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect.

 

  (b) No Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against any member of the Bank Group where that claim has or is reasonably likely, if determined against that member of the Bank Group, to have a Material Adverse Effect.

 

21.12 Security Interests

Its execution and delivery of this Agreement does not necessitate and will not result in the creation or imposition of any Security Interest over any of its material assets or those of any member of the Bank Group (except for any Security Interest created pursuant to the Security Documents).

 

21.13 Litigation and insolvency proceedings

 

  (a) No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency have been started against any member of the Bank Group and, to its knowledge, no such proceedings are threatened, where in any such case, there is a reasonable likelihood of an adverse outcome to any member of the Bank Group where that outcome is of a nature which would or is reasonably likely to have a Material Adverse Effect.

 

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  (b) None of the circumstances referred to in Clause 26.7 (Insolvency proceedings) have been commenced against it or any member of the Bank Group which is a Material Subsidiary.

 

21.14 Tax liabilities

No claims are being asserted against it or any member of the Bank Group with respect to Tax Liabilities which are reasonably likely to be determined adversely to it or to such member and which, if so adversely determined, would or is reasonably likely to have a Material Adverse Effect. It is not materially overdue in the filing of any Tax returns required to be filed by it (where such late filing might result in any material fine or penalty on it) and it has paid within any period required by law all Taxes shown to be due on any Tax returns required to be filed by it or on any assessments made against it (other than Tax liabilities being contested by it in good faith and where it has made adequate reserves for such liabilities or where such overdue filing, or non-payment, or a claim for payment, of which in each such case would not have or not be reasonably likely to have a Material Adverse Effect).

 

21.15 Ownership of assets

Save to the extent disposed of in a manner permitted by the terms of any of the Relevant Finance Documents with effect from and after the Signing Date, it has good title to or valid leases or licences of or is otherwise entitled to use all material assets necessary to conduct its business taken as a whole in a manner consistent with the Business to the extent that the failure to have such title, leases or licences or to be so entitled has or is reasonably likely to have a Material Adverse Effect.

 

21.16 Intellectual Property Rights

The Intellectual Property Rights owned by or licensed to it are all the material Intellectual Property Rights required by it in order to carry out, maintain and operate its business, properties and assets, and so far as it is aware, it does not infringe, in any way any Intellectual Property Rights of any third party, in each case, where the failure to own or license the relevant Intellectual Property Rights or any infringement thereof has or is reasonably likely to have a Material Adverse Effect.

 

21.17 Bank Group structure

The Group Structure Chart sets out a description which is true and complete in all material respects as at the Closing Date of the corporate ownership structure of the Bank Group and of the ownership of the Borrowers.

 

21.18 ERISA

Neither it nor any member of the Bank Group or ERISA Affiliate maintains, contributes to or has any obligation to contribute to or any liability under, any Plan, or in the past five years has maintained or contributed to or had any obligation to, or liability under, any Plan.

 

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21.19 Anti-Terrorism Laws

Neither it nor any member of the Bank Group nor any of their respective Affiliates:

 

  (a) is, or is controlled by, a Designated Party;

 

  (b) to its knowledge, has received funds or other property from a Designated Party; or

 

  (c) to its knowledge, is in breach of any Anti-Terrorism Law.

It and each of its Affiliates have taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws.

 

21.20 Margin stock

No Obligor is engaged, nor does it intend to engage, principally or as one of its important activities, in the business of purchasing or carrying any Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, in each case in violation of any Margin Regulations, and no proceeds of any borrowing or drawings under any Documentary Credit will be used for any purpose that violates any Margin Regulations.

 

21.21 Investment Company Act

Neither it nor any member of the Bank Group is required to register as an “investment company” or a company “controlled” by such an “investment company”, as such terms are defined in the United States Investment Company Act of 1940, as amended.

 

21.22 Claims Pari Passu

Subject to any relevant reservations or qualifications contained in any legal opinion referred to in Clause 21.4 (Legal validity), the claims of the Relevant Finance Parties against it under the Relevant Finance Documents to which it is party rank and will rank at least pari passu with the claims of all its unsecured and unsubordinated creditors save those whose claims are preferred by any bankruptcy, insolvency, liquidation or similar laws of general application.

 

21.23 No Immunity

In any legal proceedings taken in its jurisdiction of incorporation or establishment and, if different, England in relation to any of the Relevant Finance Documents to which it is party it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.

 

21.24 Centre of Main Interests

Its Centre of Main Interests is the place in which its registered office is situated or, if different, another place in the country in which its registered office is situated, or England.

 

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21.25 Broadcasting Act 1990

Neither it nor any member of any Joint Venture Group is a “disqualified person” for the purposes of Part 1 of Schedule 2 (The Original Guarantors) to such Act.

 

21.26 No Material Misstatements

No information or financial statement furnished by or on behalf of any member of the Bank Group or the Parent to the Facility Agent or any Lender in connection with the negotiation of any Relevant Finance Document or included therein or delivered pursuant thereto contained, contains or will contain any material misstatement of fact or omitted, omits or will omit to state any material fact necessary to make the statements therein, taken as a whole and in the light of the circumstances under which they were, are or will be made, not misleading, in each case as at the date of the document containing such information or the date of such financial statement; provided that, to the extent any such information or financial statement was based on or constitutes a forecast or projection, each member of the Bank Group and the Parent represents only that it acted in good faith and utilized assumptions believed to be reasonable at the time in the preparation of such information or financial statement, it being understood that such forecasts and projections may vary from actual results and that such variances may be material.

 

21.27 Solvency

On the Signing Date, and immediately following the making of each Advance and the issuance of each Documentary Credit, and after giving effect to the application of the proceeds of each Advance and Documentary Credit, and after taking into account all rights of indemnity, subrogation and contributions available to the US Obligors under the terms of the Relevant Finance Documents and applicable law, (a) the fair value of the assets of each US Obligor, at a fair valuation, will exceed its debts and other liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each US Obligor will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) each US Obligor will be able to pay its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; and (d) each US Obligor will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Signing Date.

 

21.28 Sanctions

No Obligor or any of its respective subsidiaries or any other member of the Bank Group, to the best knowledge of the Borrowers and the Obligors, any director, officer, agent, employee or other person acting on behalf of any member of a Borrower and/or any Obligor or any other member of the Bank Group or any of their respective subsidiaries has caused the Company or any Obligor or any other member of the Bank Group or any of their respective subsidiaries to be in violation of any applicable law, directive, national statute or administrative regulation relating to money-laundering, unlawful financial activities or unlawful use or appropriation of corporate funds including economic or financial sanctions or trade embargoes imposed by the US (including those administered by the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”) or equivalent European Union measure).

 

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21.29 Pension Plans

 

  (a) Each UK DB Scheme has been valued by an actuary appointed by the trustees of such plan in all material respects in accordance with all laws applicable to it and using actuarial assumptions and recommendations complying with statutory requirements or approved by the actuary and since the most recent valuation the relevant employers have paid contributions to the plan in accordance with the schedule of contributions in force from time to time in relation to the plan, in the case of each of the foregoing, save to the extent that any failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

  (b) Neither it nor any ERISA Affiliate has, at any time, maintained or contributed to, and is not obliged to maintain or contribute to, any Plan that is subject to Title IV or Section 302 of ERISA and/or Section 412 of the Code or any Multiemployer Plan.

 

21.30 Times for making representations and warranties

 

  (a) The representations and warranties set out in this Clause 21 (Representations and warranties) are made by each Obligor, the Company (as applicable) and the Parent regarding itself (other than those contained in Clauses 21.9 (Accounts), 21.10 (Financial condition) and Clause 21.14 (Tax liabilities) which shall only be made by the Company) on the Signing Date and the representations and warranties set out in Clauses 21.2 (Status), 21.3 (Powers and authority), 21.4 (Legal validity), 21.9 (Accounts), 21.20 (Margin stock), 21.23 (No Immunity) and 21.24 (Centre of Main Interests) are deemed to be made again by each relevant Obligor, the Company (as applicable) or the Parent, as applicable on the date of each Utilisation Request and on each Utilisation Date with reference to the facts and circumstances then existing and the representations and warranties set out in Clause 21.27 (Solvency) are deemed to be made by the US Obligors on the dates set out in that clause with reference to the facts and circumstances then existing.

 

  (b) The representations and warranties set out in this Clause 21 (Representations and warranties) (except Clauses 21.9 (Accounts), 21.10 (Financial condition), 21.17 (Bank Group structure) and 21.22 (Claims Pari Passu)) are repeated by each Acceding Obligor with respect to itself on the date of the Obligor Accession Agreement relating to that Acceding Obligor, with reference to the facts and circumstances then subsisting.

 

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22. FINANCIAL COVENANT

 

22.1 Financial definitions

In this Clause 22 (Financial Covenant):

Annualised EBITDA” means:

 

  (a) for the purposes of the definition of Permitted Acquisition, Clause 23.11 (Disposals) and Clause 12.2 (Mandatory prepayment from disposal proceeds) in respect of any person, in respect of any six month period, two times EBITDA of that person (calculated on a consolidated basis) for that period; and

 

  (b) for all other purposes, in respect of any Ratio Period, two times EBITDA of the Bank Group for that Ratio Period.

EBITDA” means, in relation to any Ratio Period, operating income (expense) plus, at the Company’s option (except with respect to paragraphs (a) and (b) below):

 

  (a) depreciation;

 

  (b) amortisation;

 

  (c) non-cash stock compensation expenses;

 

  (d) other non-cash impairment charges;

 

  (e) one off reorganisation or restructuring charges;

 

  (f) direct acquisition costs, losses (gains) on the sale of operating assets;

 

  (g) accrued Management Fees (whether paid or not paid);

 

  (h) non-cash charges;

 

  (i) any stock based compensation expenses;

 

  (j) direct or related acquisition, disposal, recapitalisation, debt incurrence or equity offering costs;

 

  (k) any non-recurring, exceptional, extraordinary, one-off or unusual items (including one-off reorganisation and restructuring charges);

 

  (l) the effects of adjustments pursuant to Relevant Accounting Principles attributable to the application of recapitalisation accounting or acquisition accounting, as the case may be , in relation to any consummated merger or acquisition or joint venture investment or the amortisation or write-off or write-down of amounts thereof, net of taxes;

 

  (m) Holding Company Expenses paid to the extent that they were permitted to be paid under this Agreement for such Ratio Period;

 

  (n) Specified Legal Expenses;

 

  (o) the amount of loss on sale of assets or transfer of any assets in connection with an asset securitisation programme receivables factoring transaction or other receivables transaction;

 

  (p) any net earnings or losses attributable to non-controlling interests;

 

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  (q) any share of income or loss on equity investments;

 

  (r) any deferred financing costs written off and premiums paid to extinguish debt early;

 

  (s) any unrealised gains or losses in respect of hedging;

 

  (t) tangible or intangible asset impairment charges;

 

  (u) capitalised interest on Subordinated Funding;

 

  (v) accruals and reserves established or adjusted within twelve months after the closing date of any acquisition required to be established or adjusted in accordance with the Relevant Accounting Principles;

 

  (w) any expense to the extent covered by insurance or indemnity and actually reimbursed;

 

  (x) any realised and unrealised gains and losses due to changes in the fair value of equity investments;

 

  (y) realised gains (losses) (to the extent not already included) arising at maturity or on termination of forward foreign exchange and other currency hedging contracts entered into with respect to operational cash flows;

 

  (z) any up-front installation fees associated with commercial contract installations completed during such Ratio Period (less any portion of such fees included in earnings);

 

  (aa) earn out payments to the extent such payments are treated as capital payments under the Relevant Accounting Principles;

 

  (bb) any fees or other amounts charged or credited to the Company’s and the guarantors related to Intra-Group Services may be excluded to the extent such fees or other amounts:

 

  (i) are not included in the Company’s externally reported operating cash flow or equivalent measure; or

 

  (ii) are deemed to be exceptional or unusual item;

 

  (cc) to the extent not already included in operating income, the amount received from business interruption insurance and reimbursements of any expenses covered by indemnification or other reimbursement in connection with a Permitted Acquisition, any investment or any Permitted Disposal;

 

  (dd) any gross margin (revenue minus cost of goods sold) recognised by any Affiliate of the Company in relation to the sale of goods and services relating to the Business;

 

  (ee) Receivables Fees;

 

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  (ff) any charges or costs in relation to any long-term incentive plan and any interest component of pension or post-retirement benefits schemes; and

 

  (gg) fees and related expenses in relation to any Intra-Group Services paid in a relevant Ratio Period to any Restricted Person,

as reflected in the pro forma statement of operations identified as such in the financial statements delivered to the Facility Agent pursuant to Clause 23.2(a)(ii) (Financial information) and all as determined in accordance with the Relevant Accounting Principles and as shown in the relevant financial statements prepared and delivered to the Facility Agent pursuant to Clause 23.2 (Financial information).

Interest” means:

 

  (a) interest and amounts in the nature of interest (including without limitation, the interest element of finance leases) accrued;

 

  (b) discounts suffered and repayment premiums payable in respect of Financial Indebtedness (other than repayment premiums in respect of the High Yield Notes and Senior Secured Notes), in each case to the extent that the applicable Relevant Accounting Principles require that such discounts and premiums be treated as or in like manner to interest;

 

  (c) discount fees and acceptance fees payable or deducted in respect of any Financial Indebtedness (including all commissions payable in connection with any letters of credit); and

 

  (d) any net payment (or, if appropriate in the context, receipt) under any interest rate hedging agreement or instrument (including without limitation under the Hedging Agreements), taking into account any premiums payable.

Ratio Period” means each period of approximately six months covering two quarterly Accounting Periods of the Bank Group ending on each date to which each set of financial statements required to be delivered under Clause 23.2 (Financial information) are prepared.

Senior Debt” means, at any time (without double counting and as would be set forth in accordance with the Relevant Accounting Principles on the balance sheet of the Bank Group prepared and delivered to the Facility Agent pursuant to Clauses 23.2(a)(ii) and (iii) (Financial information) the aggregate principal, capital or nominal amounts (including any Interest capitalised as principal) of Financial Indebtedness of any member of the Bank Group (including, without limitation, Financial Indebtedness arising under or pursuant to the Relevant Finance Documents) excluding:

 

  (a) any Financial Indebtedness of any member of the Bank Group to another member of the Bank Group (including contingent obligations) or under any Subordinated Funding, to the extent not prohibited under this Agreement;

 

  (b) any Financial Indebtedness arising by reason only of mark to market fluctuations in respect of interest rate and foreign exchange hedging arrangements since the original date on which such hedging arrangements were consummated;

 

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  (c) any Financial Indebtedness referred to in Clauses 23.13(b)(viii), 23.13(b)(xii), 23.13(b)(xiii) 23.13(b)(xvii), 23.13(b)(xxvii) and 23.13(b)(xxxiii) (Restrictions on Financial Indebtedness), and for a period of six months following the date of completion of an acquisition referred to in Clause 23.13(b)(xi) only and to the extent outstanding as at the relevant time, Clause 23.13(b)(xi) (Restrictions on Financial Indebtedness);

 

  (d) any Financial Indebtedness up to a maximum amount equal to the Credit Facility Excluded Amount (or its equivalent in other currencies) at the relevant time incurred under any Permitted Credit Facility; and

 

  (e) any Financial Indebtedness which is a contingent obligation.

Senior Net Debt” means, at any time, Senior Debt less Cash of the Bank Group.

Specified Legal Expenses” means, to the extent not constituting an extraordinary, non-recurring or unusual loss, charge or expense, all attorneys’ and experts’ fees and expenses and all other costs, liabilities (including all damages, penalties, fines and indemnification and settlement payments) and expenses paid or payable in connection with any threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative, governmental or investigative).

Total Debt” means at any time (without double counting and as would be set forth in accordance with the Relevant Accounting Principles on the balance sheet of the Bank Group prepared and delivered to the Facility Agent pursuant to Clauses 23.2(a)(ii) (Financial information)) the aggregate principal, capital or nominal amounts (including any Interest capitalised as principal) of Financial Indebtedness of any member of the Bank Group (including, without limitation, Financial Indebtedness arising under or pursuant to the Relevant Finance Documents), excluding:

 

  (a) any Financial Indebtedness of any member of the Bank Group to another member of the Bank Group (including contingent obligations) or under any Subordinated Funding, to the extent not prohibited under this Agreement;

 

  (b) any Financial Indebtedness arising by reason only of mark to market fluctuations in respect of interest rate and foreign exchange hedging arrangements since the original date on which such hedging arrangements were consummated;

 

  (c) any Financial Indebtedness referred to in Clauses 23.13(b)(viii), 23.13(b)(xii), 23.13(b)(xiii), 23.13(b)(xvii), 23.13(b)(xxxiii) and, for a period of six months following the date of completion of an acquisition referred to in Clause 23.13(b)(xi) only and to the extent outstanding as at the relevant time, Clause 23.13(b)(xi) (Restrictions on Financial Indebtedness);

 

  (d) any Financial Indebtedness up to a maximum amount equal to the Credit Facility Excluded Amount (or its equivalent in other currencies) at the relevant time incurred under any Permitted Credit Facility; and

 

  (e) any Financial Indebtedness which is a contingent obligation,

 

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plus any Parent Debt outstanding from time to time (excluding any Financial Indebtedness arising by reason only of mark to market fluctuations in respect of interest rate and foreign exchange hedging arrangements since the original date on which such hedging arrangements were consummated).

Total Net Debt” means, at any time, Total Debt less Cash of the Bank Group and the Parent or any other issuer of Parent Debt.

 

22.2 Financial Ratio

Subject to Clause 26.5 (Cross default) and Clause 42.5(c) (Technical and Operational Amendments), in the event that on the last day of a Ratio Period the aggregate of the Revolving Facility Outstandings and any Additional Facility Outstandings in relation to an Additional Facility that is a revolving facility and the net indebtedness outstanding under each Ancillary Facility exceed an amount equal to 33  13 per cent. of the aggregate of the Revolving Facility Commitments and any Additional Facility Commitments in relation to an Additional Facility that is a revolving facility and each Ancillary Facility Commitment, the Company shall procure that the ratio of Total Net Debt to Annualised EBITDA on that day shall not exceed 5.50:1 unless otherwise agreed in writing by the Composite Revolving Facility Instructing Group and the Company.

 

22.3 Calculations

Senior Net Debt or Total Net Debt for any Ratio Period will be calculated by reference to the relevant financial statements required to be delivered under Clause 23.2 (Financial information).

 

22.4 Cure provisions

 

  (a) The Company may cure a breach of the financial ratio set out in Clause 22.2 (Financial Ratio) by procuring that additional equity is injected into the Bank Group by one or more Restricted Persons and/or additional Subordinated Funding are/is provided to the Bank Group in an aggregate amount equal to the amount which:

 

  (i) if it had been deducted from Total Net Debt (as applicable) for the Ratio Period in respect of which the breach arose, would have avoided the breach; or

 

  (ii) if it had been added to EBITDA for the Ratio Period in respect of which the breach arose, would have avoided the breach.

 

  (b) A cure under this Clause 22.4 (Cure provisions) will not be effective unless the required amount of additional equity or the proceeds of any Subordinated Funding is/are received by one or more members of the Bank Group within 15 Business Days of delivery of the financial statements delivered under Clause 23.2 (Financial information) which show that Clause 22.2 (Financial Ratio) has been breached.

 

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  (c) No cure may be made under this Clause 22.4 (Cure provisions):

 

  (i) in respect of more than five Ratio Periods during the life of the Facilities; or

 

  (ii) in respect of consecutive Ratio Periods.

 

  (d) The Company shall be under no obligation to apply any equity injected or the proceeds of any Subordinated Funding into the Bank Group under paragraph (a) in prepayment of the Facilities and to the extent not applied such amount will be deemed to be deducted from Total Net Debt or added to EBITDA for the purposes of Clause 22.2 (Financial Ratio) (as applicable).

 

  (e) For the purpose of ascertaining compliance with Clause 22.2 (Financial Ratio), the ratio set out in Clause 22.2 (Financial Ratio), will be tested or retested, as applicable, giving effect to the adjustment referred to in paragraph (d) above. If, after giving effect to the adjustment, the requirements of Clause 22.2 (Financial Ratio) are met, then the requirements under Clause 22.2 (Financial Ratio) shall be deemed to have been satisfied as at the relevant original date of determination.

 

22.5 Determinations

For the purpose of testing compliance with any ratios in this Agreement:

 

  (a) Financial Indebtedness of the Bank Group or the Parent and any other issuer of Parent Debt originally denominated in any currency other than Sterling that has been swapped, directly or indirectly through one or more foreign exchange hedging transactions, into Sterling, will be taken into account at its Sterling equivalent using the effective exchange rate in the relevant foreign exchange hedging transactions;

 

  (b) subject to Clause 1.2 (Accounting Expressions), all the terms used above are to be calculated in accordance with the Relevant Accounting Principles;

 

  (c) notwithstanding paragraphs (a) and (b) above, Hedged Debt (as defined below) will be taken into account at its Sterling equivalent calculated using the same weighted average exchange rates for the relevant ratio period used in the profit and loss statements of the relevant accounts of the Bank Group or the Parent and any other issuer of Parent Debt for calculating the Sterling equivalent of EBITDA denominated in the same currency as the currency in which that Hedged Debt is denominated or into which it has been swapped, as described below:

Hedged Debt” means:

 

  (i) Financial Indebtedness of the Bank Group or the Parent or any other issuer of Parent Debt originally denominated in any currency other than Sterling in which any member of the Bank Group or the Parent or any other issuer of Parent Debt earns EBITDA (a functional currency) and that has not been swapped, directly or indirectly through one or more foreign exchange hedging transactions, into Sterling; and

 

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  (ii) Financial Indebtedness of the Bank Group or the Parent or any other issuer of Parent Debt that has been swapped, directly or indirectly through one or more foreign exchange hedging transactions, into a functional currency; and

 

  (d) if there is a dispute as to any interpretation of or computation for Clause 22.1 (Financial definitions), the interpretation or computation of the Auditors shall prevail.

 

22.6 Pro forma calculations

For the purposes of testing compliance with the financial ratio set out in this Clause 22 (Financial Covenant) and any other ratio in this Agreement:

 

  (a) the calculations shall be determined in good faith by a responsible financial or accounting officer of the Bank Group and shall be made on a pro forma basis giving effect to all material acquisitions and disposals made by the Bank Group (including in respect of anticipated expense and cost reductions) and including as a result of, or that would result from, any actions taken, committed to be taken or with respect to which substantial steps have been taken, by the Company or any other member of the Bank Group in connection with any cost reduction synergies or cost savings plan or program or in connection with any transaction, investment, acquisition, disposition, restructuring, corporate reorganization or otherwise (regardless of whether such cost reduction synergies and cost savings plans or programs could then be reflected in pro forma financial statements to the extent prepared);

 

  (b) unless otherwise specified in this Agreement, all references to Annualised EBITDA shall be for the most recent Ratio Period for which financial statements have been delivered to the Facility Agent under this Agreement;

 

  (c) EBITDA for the relevant period will be calculated after giving pro forma effect thereto as if such transaction, investment, acquisition, disposition, restructuring, corporate reorganization or otherwise occurred on the first day of such period; and

 

  (d) interest on any indebtedness that bears interest at a floating rate and that is being given pro forma effect shall be calculated as if the rate in effect on the date of calculation had been applicable for the entire period (taking into account any hedging in respect of such indebtedness).

 

23. UNDERTAKINGS

 

23.1 Duration

The undertakings in this Clause 23 (Undertakings) will remain in force from the Signing Date for so long as any amount is or may be outstanding under any Relevant Finance Document or any Commitment is in force.

 

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23.2 Financial information

 

  (a) The Company shall provide to the Facility Agent in sufficient copies for all the Lenders the following financial information relating to the Reporting Entity or the Bank Group, as the case may be (provided however, that to the extent any reports are filed on the SEC’s website or the Company’s website, such reports shall be deemed supplied to the Facility Agent in sufficient copies for all the Lenders):

 

  (i) as soon as they become available but in any event within 150 days after the end of each of the Reporting Entity’s financial years, the audited consolidated financial statements for such financial year for the Reporting Entity; and

 

  (ii) as soon as they become available but in any event within 60 days after the end of each of the first three Financial Quarters of each financial year (and within 150 days after the end of the last Financial Quarter), the unaudited balance sheet, statement of cash flows and statement of operations for such Financial Quarter in respect of the Reporting Entity with such adjustments as may be necessary to include the balance sheet, statement of cash flows and statement of operations of members of the Bank Group that are not Subsidiaries of the Reporting Entity.

 

  (b) Together with any financial statements provided in accordance with paragraph (a) above, the Company shall provide to the Facility Agent a certificate signed by an authorised signatory of the Reporting Entity:

 

  (i) confirming that no Default is outstanding or if a Default is outstanding, specifying the Default and the steps, if any, being taken to remedy it;

 

  (ii) if as at the last day of the Ratio Period ending on or immediately prior to the date of such financial statements the aggregate of the Revolving Facility Outstandings and any Additional Facility Outstandings in relation to an Additional Facility that is a revolving facility and the net indebtedness outstanding under each Ancillary Facility exceeds an amount equal to 33 13 per cent. of the aggregate of the Revolving Facility Commitments and any Additional Facility Commitments in relation to an Additional Facility that is a revolving facility and each Ancillary Facility Commitment, setting out in reasonable detail computations establishing as at the date of such financial statements, compliance (or detailing any non-compliance) with the financial ratio set out in Clause 22.2 (Financial Ratio) and showing figures representing the actual financial ratio then in effect, together with a schedule containing the components and amounts of Parent Debt; and

 

  (iii) certifying compliance with Clause 23.12(a) (Acquisitions and mergers).

 

  (c) Without prejudice to Clause 23.4 (Change in Accounting Practices) the financial information delivered pursuant to paragraphs (b)(ii) and (b)(iii) above shall be prepared in good faith using the same methodologies applied in preparing the audited consolidated financial statements of the Reporting Entity delivered to the Facility Agent pursuant to paragraph (b)(i) above.

 

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  (d) If at any time the Company is not the Reporting Entity, the Company shall provide to the Facility Agent, together with the financial statements delivered under paragraph (a) above, in sufficient copies for all the Lenders, the Bank Group Reconciliation for the relevant Accounting Period (provided however, that to the extent the Bank Group Reconciliation for the relevant Accounting Period is filed on the SEC’s website or the Company’s website, such Bank Group Reconciliation shall be deemed supplied to the Facility Agent in sufficient copies for all the Lenders).

 

  (e) Any financial statements provided to the Facility Agent pursuant to this Agreement shall be provided together with the accounts of any Permitted Affiliate Parent and any of its Subsidiaries that are members of the Bank Group on a combined basis.

 

23.3 Information – Miscellaneous

The Company shall supply promptly or procure that there shall be supplied (both in hard copy and in electronic form) promptly to the Facility Agent:

 

  (a) all notices, reports or other documents despatched by or on behalf of any Obligor to its creditors generally in relation to it or any of its Subsidiaries;

 

  (b) a copy of any material report or other notice, statement or circular, sent or delivered by any member of the Bank Group whose shares are pledged to the Security Trustee pursuant to any Security Document to any person in its capacity as shareholder of such member of the Bank Group, which materially adversely affects the interest of the Relevant Finance Parties under such Security Document; and

 

  (c) such other material information regarding the Bank Group and which is in the possession or control of any member of the Bank Group as the Facility Agent may from time to time reasonably request.

 

23.4 Change in Accounting Practices

 

  (a) The Company may elect to apply for all purposes of this Agreement, in lieu of GAAP, IFRS. Thereafter, the Company may re-elect to apply for all purposes of this Agreement, in lieu of IFRS, GAAP.

 

  (b) Subject to the provisions of this Clause 23.4 (Change in Accounting Practices), after any such election in accordance with paragraph (a) above all:

 

  (i) accounting expressions not otherwise defined in this Agreement shall be construed in accordance with; and

 

  (ii) ratios, computations, and other determinations based on GAAP contained in this Agreement shall be computed in conformity with,

at the Company’s election, IFRS or GAAP.

 

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  (c) The Company shall ensure that each set of financial information delivered to the Facility Agent pursuant to Clause 23.2(a) (Financial information) is prepared using accounting policies, practices and procedures consistent with that applied in the preparation of the Original Financial Statements, unless in relation to any such set of financial information, the Company elects to notify the Facility Agent that there have been one or more changes in any such accounting policies, practices or procedures (including, without limitation, any change in the basis upon which costs are capitalised or any changes resulting from the Company’s decision at any time to adopt GAAP or IFRS) and:

 

  (i) the Company provides either:

 

  (A) a statement (providing reasonable detail) confirming the changes would have no material effect on the operation of the ratio set out in Clause 22.2 (Financial Ratio); or

 

  (B) (x) a description of the changes and the adjustments that would be required to be made to that financial information in order to cause it to reflect the accounting policies, practices or procedures prior to such change and (y) sufficient information, in such detail and format as may be reasonably required by the Facility Agent, to enable the Lenders to make a comparison between the financial positions indicated by that financial information and the financial information required to be delivered under Clause 23.2 (Financial information);

 

  (ii) following delivery of the notification referred to in paragraph (c) above by the Company to the Facility Agent, if the Facility Agent (acting on the instructions of the Instructing Group) requests it, the Company shall use commercially reasonable efforts to provide, the statement contemplated by sub-paragraph (i)(A) above or the description contemplated by sub-paragraph (i)(B) above, as applicable, relating to the financial information required to be delivered pursuant to Clause 23.2(a) (Financial Information) for the most recently completed financial quarter;

 

  (iii) in the event of any changes to such accounting policies, practices or procedures other than resulting from the Company’s decision to adopt IFRS, if the Company notifies the Facility Agent that it is no longer practicable to test compliance with the financial covenant set out in Clause 22 (Financial Covenant) and/or any other ratio set out in this Agreement against the financial information required to be delivered pursuant to this Clause 23 (Undertakings) or that it wishes to cease preparing the additional information required by paragraph (a) above, in which case:

 

  (A) the Facility Agent and the Company shall enter into negotiations with a view to agreeing an alternative financial covenant and/or ratio to replace the ratio contained in Clause 22 (Financial Covenant) and/or any other ratio set out in this Agreement in order to maintain a consistent basis for such financial covenant or ratio (and for approval by the Instructing Group); and

 

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  (B) if the Facility Agent and the Company agree alternative financial covenant to replace those contained in Clause 22 (Financial Covenant) and/or any other ratio set out in this Agreement which are acceptable to the Instructing Group, such alternative financial covenant shall be binding on all parties hereto; and

 

  (C) if, after three months following the date of the notice given to the Facility Agent pursuant to this paragraph (c), the Facility Agent and the Company cannot agree an alternative financial covenant/and or other ratio set out in this Agreement which are acceptable to the Instructing Group, the Facility Agent shall refer the matter to any of the auditors as may be agreed between the Company and the Facility Agent for determination of the adjustments required to be made to such financial information or the calculation of such ratios to take account of such change, such determination to be binding on the parties hereto, provided that pending such determination (but not thereafter) the Company shall continue to prepare financial information and calculate such financial covenant in accordance with paragraph (i) above; or

 

  (iv) in the event of any changes to such accounting policies, practices or procedures resulting from the Company’s decision to adopt IFRS, if the Company notifies the Facility Agent that it is no longer practicable to test compliance with the financial covenant set out in Clause 22 (Financial Covenant) and/or any other ratio set out in this Agreement against the financial information required to be delivered pursuant to this Clause 23 (Undertakings) or that it wishes to cease preparing the additional information required by paragraph (i) above, in which case:

 

  (A) the Company shall provide the Facility Agent with a revised (1) financial covenant ratio level to replace that contained in Clause 22.2 (Financial Ratio) and/or a revised ratio to replace that set out in any other provision of this Agreement (the “Revised Ratios”) and (2) financial covenant definitions to replace those contained in Clause 22.1 (Financial definitions) (the “Revised Definitions”), in each case resulting from the adoption of IFRS by the Company and that are substantially equivalent to the financial covenant ratio levels and definitions in existence at such time on the basis of GAAP, as confirmed by a report of a reputable accounting firm; and

 

  (B) the Revised Ratios and Revised Definitions shall become effective, and this Agreement be amended accordingly to reflect such amendments without any further consents from any Lender, if the Facility Agent (acting on the instructions of the Instructing Group) has not objected (acting reasonably) to the

 

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  implementation of the Revised Ratios and Revised Definitions within 60 days after receipt thereof provided that, if at any time after the Company has adopted IFRS, it then elects to adopt GAAP, this Agreement shall, immediately upon such election, be amended to reflect such amendments without any further consents by any Relevant Finance Party to implement a deletion of the Revised Ratios and Revised Definitions and to reinstate the financial covenant ratio level contained in Clause 22.2 (Financial Ratio) and/or any other ratio set out in any other provision of this Agreement and the financial covenant definitions contained in Clause 22.1 (Financial definitions), in each case, as at the First Effective Date (updated to reflect any other amendments made since the First Effective Date) subject to any amendments in accordance with paragraphs (i) and (ii) above and provided that the reconciliation required under paragraph (i) above is also provided by the Company,

provided that if the Company wishes to cease preparing additional information in the form of a statement (providing reasonable detail) confirming the changes would have no material effect on the operation of the ratio set out in Clause 22.2 (Financial ratio) and/or any other ratio set out in this Agreement for each set of financial information (the “Statement”), the Company may provide the Facility Agent with a confirmation in writing that (i) the ratio set out in Clause 22.2 (Financial ratio) and/or any other ratio set out in this Agreement can be tested on a substantially equivalent basis or (ii) that there would be no material effect on the operation of the ratio set out in Clause 22.2 (Financial ratio) and/or any other ratio set out in this Agreement, following the adoption of IFRS or GAAP (as applicable) without the need for any amendments to such ratios or the financial definitions set out in Clause 22.1 (Financial definitions) and if the Facility Agent (acting on the instructions of the Instructing Group) has not objected (acting reasonably) within 60 days of the date of such confirmation, the Company will no longer have to provide the Statement for each set of financial information.

 

23.5 Notification of Default and inspection rights

 

  (a) Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of it (unless that Obligor is aware that such a notification has already been provided by another Obligor).

 

  (b) Each Obligor shall, if required by the Facility Agent (acting on the instructions of the Instructing Group), at any time whilst an Event of Default is continuing or the Facility Agent has reasonable grounds to believe that an Event of Default may exist and at other times if the Facility Agent has reasonable grounds for such request, permit representatives of the Facility Agent upon reasonable prior written notice to the Company to:

 

  (i) visit and inspect the properties of any member of the Bank Group during normal business hours;

 

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  (ii) inspect its books and records other than records which the relevant member of the Bank Group is prohibited by law, regulation or contract from disclosing to the Facility Agent; and

 

  (iii) discuss with its principal officers and Auditors its business, assets, liabilities, financial position, results of operations and business prospects provided that (A) any such discussion with the Auditors shall only be on the basis of the audited financial statements of the Bank Group and any compliance certificates issued by the Auditors and (B) representatives of the Company shall be entitled to be present at any such discussion with the Auditors.

 

  (c) Any Obligor must promptly upon becoming aware of it notify the Facility Agent of:

 

  (i) any Reportable Event;

 

  (ii) the termination of or withdrawal from, or any circumstances reasonably likely to result in the termination of or withdrawal from, any Plan subject to Title IV of ERISA; and

 

  (iii) material non-compliance with any law or regulation relating to any Plan which would or is reasonably likely to have a Material Adverse Effect.

 

23.6 Authorisations

Each Obligor will, and will procure that each of its Subsidiaries which is a member of the Bank Group will:

 

  (a) obtain or cause to be obtained, maintain and comply with the terms of:

 

  (i) every material consent, authorisation, licence or approval of, or filing or registration with or declaration to, governmental or public bodies or authorities or courts; and

 

  (ii) every material notarisation, filing, recording, registration or enrolment in any court or public office,

in each case required under any law or regulation to enable it to perform its obligations under, or for the validity, enforceability or admissibility in evidence of the Relevant Finance Document to which it is a party; and

 

  (b) obtain or cause to be obtained every Necessary Authorisation and the Licences and ensure that (i) none of the Necessary Authorisations or Licences is revoked, cancelled, suspended, withdrawn, terminated, expires and is not renewed or otherwise ceases to be in full force and effect and (ii) no Necessary Authorisation or Licence is modified and no member of the Bank Group commits any breach of the terms or conditions of any Necessary Authorisation or Licence which, in each case, would or is reasonably likely to have a Material Adverse Effect.

 

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23.7 Pari passu ranking

Each Obligor will procure that its payment obligations under the Relevant Finance Documents do and will rank at least pari passu with all the claims of its other present and future unsecured and unsubordinated creditors (save for those obligations mandatorily preferred by applicable law applying to companies generally).

 

23.8 Negative pledge

 

  (a) Each Obligor will not permit (and the Company shall procure that no member of the Bank Group shall permit) any Security Interest (other than the Permitted Security Interests) by any member of the Bank 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 Financial Indebtedness of any member of the Bank Group or any other person.

 

  (b) Permitted Security Interest” means any Security Interest:

 

  (i) arising hereunder or under any Finance Document or in respect of liabilities under any Hedging Agreements entered into in connection with the High Yield Notes or High Yield Refinancing;

 

  (ii) which is an Existing Security Interest set out in Part 1 of Schedule 11 (Existing Security Interests) provided that the principal amount secured thereby may not be increased unless any Security Interest in respect of such increased amount would be permitted under another paragraph of this Clause 23.8 (Negative pledge);

 

  (iii) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;

 

  (iv) which is created by any member of the Bank Group in substitution for any Existing Security Interest referred to in paragraph (ii) above, provided that the principal amount secured thereby may not be increased unless any Security Interest in respect of such increased amount would be permitted under another paragraph of this Clause 23.8 (Negative pledge);

 

  (v) which is a lien arising in the ordinary course of business by operation of law or by way of contract which secures indebtedness under any agreement for the supply of goods or services in respect of which payment is not deferred for more than 180 days (or 360 days if such deferral is in accordance with the terms pursuant to which the relevant goods were acquired or services were provided) after the relevant goods were or are to be acquired or the relevant services were or are to be supplied, or after the relevant invoice date;

 

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  (vi) imposed by any taxation or governmental authority in respect of amounts which are being contested in good faith and not yet payable and for which adequate reserves have been set aside in the accounts of the member of the Bank Group in respect of the same in accordance with the Relevant Accounting Principles;

 

  (vii) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:

 

  (A) arises in the ordinary course of business and/or by operation of law;

 

  (B) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;

 

  (C) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other hedging contract permitted or not prohibited by this Agreement;

 

  (D) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group;

 

  (viii) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;

 

  (ix) granted by a member of the Bank Group over its shareholding in any of its Subsidiaries which is not itself a member of the Bank Group;

 

  (x) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 23.13 (Restrictions on Financial Indebtedness);

 

  (xi) over or affecting any asset acquired by a member of the Bank Group after the date of this Agreement and subject to which such asset is acquired, if:

 

  (A) such Security Interest was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and

 

  (B)

the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at

 

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  all times falls within Clauses 23.13(b)(xi) or 23.13(b)(xviii) (Restrictions on Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;

 

  (xii) over or affecting any asset of any company which becomes a member of the Bank Group after the date of this Agreement, where such Security Interest is created prior to the date on which such company becomes a member of the Bank Group, if:

 

  (A) such Security Interest was not created in contemplation of the acquisition of such company; and

 

  (B) to the extent not repaid by close of business on the date upon which such company became a member of the Bank Group, the Financial Indebtedness secured by such Security Interest at all times falls within Clause 23.13(b)(xi) or 23.13(b)(xviii) (Restrictions on Financial Indebtedness);

 

  (xiii) over any property or other assets to satisfy any pension plan contribution liabilities provided that the aggregate value of any such property or other assets, when taken together with the aggregate amount utilised under the basket in Clause 23.11(b)(xv) (Disposals), shall not exceed £100,000,000 at any time;

 

  (xiv) constituted by a rent deposit deed entered into on arm’s length commercial terms and in the ordinary course of business securing the obligations of a member of the Bank Group in relation to property leased to a member of the Bank Group;

 

  (xv) which is granted over the shares of, Indebtedness owed by or other interests held in, or over the assets (including, without limitation, present or future revenues), attributable to a Project Company, a Bank Group Excluded Subsidiary or a Permitted Joint Venture;

 

  (xvi) over cash deposited as security for the obligations of a member of the Bank Group in respect of a performance bond, guarantee, standby letter of credit or similar facility entered into in the ordinary course of business of the Bank Group;

 

  (xvii) in respect of any Permitted Transaction;

 

  (xviii) which is created by any member of the Bank Group in substitution for any Security Interest under any existing Security Document, provided that the principal amount secured thereby may not be increased unless any Security Interest in respect of such increased amount would be permitted under another paragraph of this Clause 23.8 (Negative pledge);

 

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  (xix) securing any Financial Indebtedness on a pari passu or junior ranking basis with respect to any part of the Facilities, provided that:

 

  (A) the ratio of Senior Net Debt to Annualised EBITDA (giving effect to any such Financial Indebtedness and the use of proceeds thereof) would be equal to, or less than, 4.50:1.00 (rounded to the second decimal number), provided that this limitation shall not apply to any Financial Indebtedness the proceeds of which are used to refinance (1) the Facilities (including any Additional Facility), (2) any Senior Secured Notes or (3) any other Financial Indebtedness which is secured by assets that are subject to the Security or such Financial Indebtedness is otherwise Permitted Financial Indebtedness under paragraphs (iv) (as it relates to guarantees permitted under Clause 23.15(e) of this Agreement in respect of any Permitted Financial Indebtedness), (vii), (xi) (provided that at the time of the acquisition or other transaction pursuant to which such Financial Indebtedness was incurred and after giving effect to such incurrence on a pro forma basis (a) an Obligor could incur £1.00 of debt under paragraph (xxiv) of the definition of Permitted Financial Indebtedness or (b) the ratio of Senior Net Debt to Annualised EBITDA would not be greater than it was immediately prior to giving pro forma effect to such acquisition or other transaction and to the incurrence of such Financial Indebtedness), (xxiv), (xv)(D) and (xxxiii) of the definition of Permitted Financial Indebtedness and guarantees thereof; and

 

  (B) any such Financial Indebtedness ranking pari passu with the Facilities outstanding on the Signing Date or any Financial Indebtedness that would have ranked pari passu with (1) the Facilities outstanding on the Signing Date is subject to the Group Intercreditor Agreement and the HYD Intercreditor Agreement and (2) any such Financial Indebtedness which is secured on a junior ranking basis over assets subject to the Security, such junior ranking security shall be granted on terms where the rights of the relevant mortgagee, chargee or other beneficiary of such security in respect of any payment will be subordinated to the rights of the Relevant Finance Parties under an intercreditor agreement (providing for contractual subordination on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt) and, in each case, the Relevant Finance Parties agree to execute such intercreditor agreement as soon as practicable following request from the Company; or

 

  (xx) created with the prior written consent of the Instructing Group;

 

  (xxi) arising under agreements entered into in the ordinary course of business relating to (A) network leases or (B) the leasing of (1) building; (2) cars; and (3) other operational equipment;

 

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  (xxii) securing:

 

  (A) proceeds from the offering of any debt securities or other Financial Indebtedness (and accrued interest thereon) paid into escrow accounts with an independent escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the release of amounts on deposit in such escrow accounts upon satisfaction of certain conditions or the occurrence of certain events for the benefit of the related holders of debt securities or other Financial Indebtedness (or the underwriters or arrangers thereof); or

 

  (B) cash set aside at the time of the incurrence of any Financial Indebtedness or government securities purchased with such cash, in either case, to the extent such cash or government securities prefund the payment of interest on such Financial Indebtedness and are held in escrow accounts or similar arrangement to be applied for such purpose;

 

  (xxiii) created to secure any Financial Indebtedness on a second lien ranking basis provided that:

 

  (A) (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) the Total Net Debt to Annualised EBITDA ratio would not be greater than 5.50:1 or such Financial Indebtedness is otherwise Permitted Financial Indebtedness under paragraphs (iv) (as it relates to guarantees permitted under Clause 23.15(e) of this Agreement in respect of any Permitted Financial Indebtedness), (vii), (xi) (provided that at the time of the acquisition or other transaction pursuant to which such Financial Indebtedness was incurred and after giving effect to such incurrence on a pro forma basis (a) an Obligor could incur £1.00 of debt under paragraph (xxiv) of the definition of Permitted Financial Indebtedness or (b) the ratio of Senior Net Debt to Annualised EBITDA would not be greater than it was immediately prior to giving pro forma effect to such acquisition or other transaction and to the incurrence of such Financial Indebtedness), (xxiv), (xv)(D) and (xxxiii) of the definition of Permitted Financial Indebtedness and guarantees thereof or any Financial Indebtedness the proceeds of which are used to refinance any Financial Indebtedness on a second lien ranking basis by assets subject to the Security; and

 

  (B)

such Financial Indebtedness is subject to intercreditor arrangements on terms satisfactory to the Facility Agent and the Security Trustee (in each case, acting reasonably) and, where the rights of the holders of such Financial Indebtedness will be contractually subordinated to the rights of the Lenders, on terms comparable to the intercreditor agreement precedent most recently entered into by an Affiliate of the Company prior to the incurrence of such Financial Indebtedne