EXHIBIT 10.35
CONFORMED COPY
LOAN AMENDMENT AGREEMENT
(POUNDS)64,000,000 REVOLVING LOAN FACILITY
BEING AMENDED TO (POUNDS)150,000,000 TERM AND REVOLVING LOAN FACILITIES
DATE: 18th June, 1999
PARTIES
1. CASTLE TRANSMISSION INTERNATIONAL LTD. (formerly known as Castle
Transmission Services Limited), a company incorporated in England (number
3196207), of Warwick Technology Park, Gallows Hill, Xxxxxxxxx Xxxx, Xxxxxxx
XX00 0XX, as borrower
2. CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD, a company incorporated in
England (number 3242381), of Warwick Technology Park, Gallows Hill,
Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX and MILLENNIUM COMMUNICATIONS LIMITED, a
company incorporated in England (number 2903056), of Warwick Technology
Park, Gallows Hill, Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX, as guarantors
3. THE LENDERS listed in Schedule 1, as lenders
4. CREDIT SUISSE FIRST BOSTON, as lead arranger
5. CREDIT LYONNAIS, THE INDUSTRIAL BANK OF JAPAN, LIMITED, THE ROYAL BANK OF
SCOTLAND PLC AND SCOTIABANK EUROPE PLC, as arrangers
6. CREDIT SUISSE FIRST BOSTON, as agent (the "AGENT")
BACKGROUND
(A) On 28th February, 1997 the loan agreement (in the form it was in at that
date) was entered into between the Borrower, the Parent, certain lenders,
the Agent and others and under its terms the lenders agreed to provide term
and revolving loan facilities of (Pounds)162,500,000 to the Borrower. On
21st May, 1997 the parties to the loan agreement (except Millennium)
amended the loan agreement. Under the loan agreement (as amended at that
date) the lenders under it agreed to provide revolving loan facilities of
(Pounds)64,000,000 to the Borrower. These loan facilities are guaranteed
by the Parent and secured by charges granted by the Borrower and the
Parent. With effect from 27th October, 1998 Millennium acceded to the
Existing Loan Agreement as an additional guarantor and acceded to the
Debenture (in the form it was in at that date) as an additional chargor.
(B) At the request of the Borrower the parties have agreed to amend the terms
of the Existing Loan Agreement on the terms of this Agreement.
The parties agree as follows:
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1. INTERPRETATION
1.1 LOAN AGREEMENT
The interpretation provisions contained in Part I of the Amended Loan
Agreement are deemed to be incorporated expressly in this Agreement, and
apply to this Agreement accordingly.
1.2 DEFINITIONS
In this Agreement:
"AMENDMENT DATE" means 18th June, 1999
"AMENDED LOAN AGREEMENT" means the Existing Loan Agreement as it will be
amended under the terms of this Agreement with effect from the Amendment
Date and as set out in Schedule 2 to this Agreement.
"DEPOSIT CHARGE AMENDMENT AGREEMENT" means the deposit charge amendment
agreement expected to be dated the same date as this Agreement and made
between the Borrower and Credit Suisse First Boston.
"EXISTING LOAN AGREEMENT" means the loan agreement dated 28th February,
1997 as amended on 21st May, 1997 and as acceded to by Millennium, made
between the Borrower, the Parent, the lenders named in it, Credit Suisse
First Boston and others under which the lenders agreed to provide
(Pounds)64,000,000 revolving loan facilities.
"LENDERS" means the lenders whose names are set out in Schedule 1 to this
Agreement.
"INTER-COMPANY LOAN AMENDMENT AGREEMENT" means the agreement expected to be
dated the same date as this Agreement and made between the Borrower and CT
Finance which amends and restates the Inter-Company Loan Agreement.
"SUPPLEMENTAL AND AMENDMENT DEED" means the supplemental and amendment deed
expected to be dated the same date as this Agreement which supplements and
amends the Debenture.
1.3 SCOPE
This Agreement is supplemental to and amends the Existing Loan Agreement.
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2. CONDITIONS PRECEDENT
2.1 CONDITIONS PRECEDENT
The Borrower agrees to deliver all the items listed in Schedule 3 to the
Amended Loan Agreement to the Agent by 8.00 a.m. on the Amendment Date, in
a form satisfactory to the Agent
2.2 REPAYMENT
The Amendment Date must be a date on which all the Advances outstanding
under the Existing Loan Agreement are due to be repaid.
2.3 NOTICE OF BORROWING
The Borrower agrees to deliver to the Agent on or before the Amendment Date
a notice of borrowing in accordance with the provisions of Clause 6 of the
Amended Loan Agreement requesting a drawing of at least (Pounds)55,500,000
on the Amendment Date.
3. AMENDMENT OF THE LOAN AGREEMENT
3.1 NOTICE TO THE LENDERS
This Clause applies if:
(A) the Agent receives the items described in Clause 2.1 by 8.00 a.m. on
the Amendment Date;
(B) the Agent receives the notice or notices of borrowing described in
Clause 2.3 on or before the Amendment Date; and
(C) the requirements of Clause 6.4 of the Amended Loan Agreement are
satisfied at the Amendment Date.
In this event the Agent will notify the Lenders of this in writing at the
Amendment Date.
3.2 EFFECT OF NOTICE
With effect from the Agent giving (or being obliged to give) the notice
described in Clause 3.1, each of the following will occur:
(A) The Existing Loan Agreement will be amended so that it will be read
and construed as is set out in Schedule 2. The Existing Loan Agreement
as amended will remain in full force and effect. References to the
Loan
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Agreement, however expressed, will be read and construed as references
to both the Existing Loan Agreement as amended by this Agreement and
(unless the context otherwise requires) to this Agreement.
(B) The Supplemental and Amendment Deed, the Deposit Charge Amendment
Agreement and the Inter-Company Loan Amendment Agreement will take
effect in accordance with their respective terms.
(C) Each Lender will advance its participation in the Advance or Advances
requested in the notice or notices of borrowing described in Clause
2.3 on the Amendment Date. The Advance or Advances will be made under
the terms of the Amended Loan Agreement.
(D) The Borrower will pay on the Amendment Date the amount of commitment
fee which accrued but has not yet been paid under the Existing Loan
Agreement as at the Amendment Date.
4. MISCELLANEOUS
4.1 EXPIRY
The obligations and rights constituted by this Agreement will be
extinguished on the date one month after the date of this Agreement if the
conditions set out in Clause 3.1 have not been satisfied on or prior to
that date.
4.2 LAW
This Agreement is to be governed by and construed in accordance with
English law.
4.3 COUNTERPARTS
There may be several signed copies of this Agreement. There is intended to
be a single Agreement and each signed copy is a counterpart of that
Agreement.
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SIGNATURES
BORROWER
--------
CASTLE TRANSMISSION INTERNATIONAL LTD.
Address: Warwick Technology Park,
Gallows Hill,
Xxxxxxxxx Xxxx,
Xxxxxxx XX00 0XX.
Fax Number: 00000 000000
Attention: Company Secretary
By: XXXX XXXX
PARENT AND GUARANTOR
--------------------
CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD
Address: Warwick Technology Park,
Gallows Hill,
Xxxxxxxxx Xxxx,
Xxxxxxx XX00 0XX.
Fax Number: 00000 000 000
Attention: Company Secretary
By: XXXX XXXX
ADDITIONAL GUARANTOR
--------------------
MILLENNIUM COMMUNICATIONS LIMITED
Address: Warwick Technology Park,
Gallows Hill,
Xxxxxxxxx Xxxx,
Xxxxxxx XX00 0XX.
Fax Number: 00000 000 000
Attention: Company Secretary
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By: XXXX XXXX
LEAD ARRANGER
-------------
CREDIT SUISSE FIRST BOSTON
By: XXX XXXXXXX XXXXX XXXXX
ARRANGERS
---------
CREDIT LYONNAIS
By: XXXXX XXXXX AS ATTORNEY
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: XXXXX XXXXX AS ATTORNEY
THE ROYAL BANK OF SCOTLAND PLC
By: XXXXX XXXXX AS ATTORNEY
SCOTIABANK EUROPE PLC
By: XXXXX XXXXX AS ATTORNEY
LENDERS
-------
CREDIT SUISSE FIRST BOSTON
Address: Five Xxxxx Xxxxxx, Xxxxxx, X00 0XX
Fax Number: 0000 000 0000
Telex Number: 887 322
Attention: Client Services Unit
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By: XXX XXXXXXX XXXXX XXXXX
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CREDIT LYONNAIS
Operations Contact Credit Contact
------------------ ----------------
Address: Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 634 8353 0171 214 7159
Telex Number: 885479 885479
Attention: Xxxxx Xxxxx Xxxxx Xxxxxx
By: XXXXX XXXXX AS ATTORNEY
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Operations Contact Credit Contact
------------------ ----------------
Address: Xxxxxxx House, Xxxxxxx House,
One Friday Street, One Friday Street,
London EC4M 9JA. Xxxxxx XX0X 0XX.
Fax Number: 0171 815 2288/9 0171 815 2245
Telex Number: 886939 KOGINL G 886939 KOGINL G
Attention: Xxxx Xxx Xxxx Xxxxxx
By: XXXXX XXXXX AS ATTORNEY
THE ROYAL BANK OF SCOTLAND PLC
Operations Contact Credit Contact
------------------ ----------------
Address: CBO, XX Xxx 000, Xxxxxxxxxx Xxxxxx,
0-00 Great Tower St., 138-142 Holborn,
London EC3P 3HX. Xxxxxx XX0X 0XX.
Fax Number: 0171 220 7370 0171 427 9920
Telex Number: 8956751 8956751
Attention: Xxxxx Xxxx Xxxxxxx Xxxxx
By: XXXXX XXXXX AS ATTORNEY
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SCOTIABANK EUROPE PLC
Operations Contact Credit Contact
------------------ ----------------
Address: Scotia House, Scotia House,
33 Finsbury Square, 00 Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 826 5857 0171 826 5987
Telex Number: 885188/9 885188/9
Attention: Xxxxx Xxxxx/Xxxxxx Caller Xxxx Xxxxxxx/Xxxxx Xxxxxxx
By: XXXXX XXXXX AS ATTORNEY
ALLIED IRISH BANKS PLC (LONDON BRANCH)
Operations Contact Credit Contact
------------------ ----------------
Address: 00, Xxx Xxxxx, XXX Xxxxxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX. XXXX Xxxxxx,
Xxxxxx 0,
Xxxxxxx.
Fax Number: 0171 726 8735 00 353 1 829 0269
Attention: Xxxxx X Xxxxxxxx/ Xxxxxxxx Xxxxxxxx/
Xxxxxx Xxxxxx Xxxxx Xxxxx
By: XXXXX XXXXX AS ATTORNEY
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
X.X. Xxx 00, Xxxxx Xxxx, Xxxxxxx XX00 0XX
Operations Contact Credit Contact
------------------ ----------------
Address: BOIIF Loans Project Finance,
Administration, Bank of Ireland
Xxxx House, International Finance,
Ballsbridge, La Xxxxxx Xxxxx,
Xxxxxx 0, XXXX,
Xxxxxxx. Xxxxxx 0,
Xxxxxxx.
Fax Number: 00 353 1 618 7470 00 353 1 829 0129
Attention: Xxxxxx Xxxxxxx Xxxxx Xxxx/
Deiordre Xxxxxxxx
By: XXXXX XXXXX AS ATTORNEY
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THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
Operations Contact Credit Contact
------------------ ----------------
Address: Bank of Scotland Bank of Scotland
International Division, International Division,
00 Xxxxxxxxxxx Xxxx, 00 Xxxxxxxxxxx Xxxx,
Xxxxxxxxx XX0 0XX. Xxxxxxxxx XX0 0XX.
Fax Number: 0131 343 7080 0131 343 7026
Attention: Xxxxx Xxxxxx, Loans Xxxxxxx X. Xxxxx,
Administration Assistant Manager,
Project & Specialised
Finance
By: XXXXX XXXXX AS ATTORNEY
BAYERISCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
Operations Contact Credit Contact
------------------ ----------------
Address: Xxxxxxx Xxxxx, Xxxxxxx Xxxxx,
00/00 Xxxxxx Xxxxxx, 00/00 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 955 5173 0171 955 5700
Telex Number: 886437 886437
Attention: Xxxxx Xxxxxxxx, Loan Xxxxx Xxxxxxxx,
Administration Structured Finance
By: XXXXX XXXXX AS ATTORNEY
DE NATIONALE INVESTERINGSBANK N.V., LONDON BRANCH
Operations Contact Credit Contact
------------------ ----------------
Address: 00 Xxxxxxxxx, 00 Xxxxxxxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 929 4009 0171 929 4009
Telex Number: 920090 920090
Attention: Xxxxx Xxxx, Operations Xxxxxx Xxxx, Manager
Manager
By: XXXXX XXXXX AS ATTORNEY
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DEXIA PROJECT & PUBLIC FINANCE INTERNATIONAL BANK, LONDON BRANCH
Operations Contact Credit Contact
------------------ ----------------
Address: 00 Xxxxxx Xxxxxx, 55 Tufton Street,
Westminster, Westminster,
London SW1P 3QF. Xxxxxx XX0X 0XX.
Fax Number: 0171 799 2117 0171 976 0976
Attention: Xxxxxx Xxxxx, Senior Xxxxxxxx Xxxxx, Manager,
Manager, Operations Project Finance
By: XXXXX XXXXX AS ATTORNEY
THE FUJI BANK, LIMITED
Operations Contact Credit Contact
------------------ ----------------
Address: River Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxx,
0-00 Xxxxxxxx Circus, 0-00 Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 588 1400 0171 588 1400
Telex Number: 886352/886317 FUJIBK G 886352/886317 FUJIBK G
Attention: Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Senior
Manager, Credit & Manager, Corporate
Loans Department Relations Management Group
By: XXXXXX XXXXXXX
KBC BANK N.V. LONDON BRANCH
Operations Contact Credit Contact
------------------ ----------------
Address: 7th Floor, KBC Finance Ireland,
Exchange House, KBC House,
Primrose Street, International Financial
Xxxxxx XX0X 0XX. Services Centre,
Xxxxxx 0,
Xxxxxxxx of Ireland.
Fax Number: 0171 256 4846 00 353 1 670 0855
Attention: Xxxxxx Xxxxxxx/ Fiacra Xxxxx/
Xxxxxx Xxxxxx Xxxx Xxxxxx
By: XXXXX XXXXX AS ATTORNEY
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LLOYDS BANK PLC
Operations Contact Credit Contact
------------------ ----------------
Address: Xxxx Xxxxx, XX Xxx 000,
Xxxx Xxxxxx, 6-8 Eastcheap,
Bristol BS1 2AM. Xxxxxx XX0X 0XX.
Fax Number: 0117 923 3367 0171 661 4852
Telex Number: 888301 888301
Attention: Xxx Xxxxxxxx, Xxxx Xxxxx/Xxx Xxxxxx,
Loans Administration Corporate Banking
By: XXXX XXXXX
THE CO-OPERATIVE BANK P.L.C.
Credit and Operations Contacts
------------------------------
Address: XX Xxx 000,
0 Xxxxxxx Xxxxxx,
Xxxxxxxxxx X00 0XX.
Fax Number: 0161 832 8274
Telex Number: 567274 COOPBKG
Attention: Xxxxxx X. Xxxxxx,
Business Development Manager
By: XXXXX XXXXX AS ATTORNEY
SOCIETE GENERALE, LONDON BRANCH
Operations Contact Credit Contact
------------------ ----------------
Address: XX Xxxxx, XX Xxxxx,
00 Xxxxx Xxxx, 00 Xxxxx Xxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 638 6517 0171 680 9478
Attention: Xxxxx Xxxxxxxx Xxxxx Xxxxx
By: XXXXX XXXXX AS ATTORNEY
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THE SUMITOMO BANK, LIMITED
Operations Contact Credit Contact
------------------ ----------------
Address: Xxxxxx Xxxxx, Xxxxxx Xxxxx,
00 Xxxxx Xxxxxxxx Street, 00 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 786 1569 0171 248 3187
Telex Number: 887667 887667
Attention: Manager, Loans Xxxx Xxxxx
Administration
By: XXXXX XXXXX AS ATTORNEY
THE DAI-ICHI KANGYO BANK, LTD
Operations Contact Credit Contact
------------------ ----------------
Address: XXX Xxxxx, XXX Xxxxx,
00 Xxxx Xxxxxxx Xxxxxx, 00 Xxxx Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX. Xxxxxx XX0X 0XX.
Fax Number: 0171 626 3648 0171 200 9494
Attention: Xxxxxxxxx Xxxxxxx, Xxxxx Xxxxxxxx,
Manager Senior Manager
By: XXXXX XXXXX AS ATTORNEY
ULSTER BANK LIMITED
Operations Contact Credit Contact
------------------ ----------------
Address: Ulster Bank Markets, Ulster Bank Markets,
00-00 Xxxxxxxx Xxxxxx Xxxx, Xxxxxx Xxxx Group Centre,
Belfast BT1 5HD, George's Quay,
Ireland. Xxxxxx 0,
Xxxxxxx.
Fax Number: 00 353 1 608 4199 00 353 1 608 4145
Telex Number: 93980 93980
Attention: Xxxxxxxxx Xxxxx/ Xxxxx Xxxxx/
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx
By: XXXXX XXXXX AS ATTORNEY
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AGENT
-----
CREDIT SUISSE FIRST BOSTON
Address: Five Xxxxx Xxxxxx,
Xxxxxx X00 0XX
Fax Number: 0000 000 0000
Attention: Agency Services Unit
By: XXX XXXXXXX XXXXX XXXXX
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SCHEDULE 1
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LENDERS
-------
Credit Suisse First Boston
Credit Lyonnais
The Industrial Bank of Japan, Limited
The Royal Bank of Scotland plc
Scotiabank Europe plc
Allied Irish Banks PLC (London Branch)
The Governor and Company of the Bank of Ireland
The Governor and Company of the Bank of Scotland
Bayerische Landesbank Girozentrale, London Branch
De Nationale Investeringsbank N.V., London Branch
Dexia Project & Public Finance International Bank, London Branch
The Fuji Bank, Limited
KBC Bank N.V., London Branch
Lloyds Bank Plc
The Co-operative Bank p.l.c.
Societe Generale, London Branch
The Sumitomo Bank Limited
The Dai-Ichi Kangyo Bank, Ltd
Ulster Bank Limited
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SCHEDULE 2
----------
AMENDED LOAN AGREEMENT
See following pages.
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DATE: 28TH FEBRUARY, 1997 AS AMENDED ON 21ST MAY, 1997 AND ON 18TH JUNE, 1999
CASTLE TRANSMISSION INTERNATIONAL LTD.
AS BORROWER
CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD.
AND
MILLENNIUM COMMUNICATIONS LIMITED
AS GUARANTORS
THE LENDERS LISTED IN SCHEDULE 1
CREDIT SUISSE FIRST BOSTON
AS LEAD ARRANGER
CREDIT LYONNAIS
THE INDUSTRIAL BANK OF JAPAN, LIMITED
THE ROYAL BANK OF SCOTLAND PLC
AND
SCOTIABANK EUROPE PLC
AS ARRANGERS
CREDIT SUISSE FIRST BOSTON
AS AGENT
_________________________________________________________________________
(Pounds)150,000,000 TERM AND REVOLVING LOAN FACILITIES WITH A EURO OPTION
__________________________________________________________________________
Xxxxxxxxx and May
00 XXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
(AGB/HZM)
CC983390.001
CONFORMED COPY
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CONTENTS
CLAUSE PAGE
PART I: INTERPRETATION 2
1. INTERPRETATION AND CALCULATIONS 2
PART II : THE FACILITIES 15
2. THE FACILITIES 15
3. THE LENDERS AND THE BORROWER 16
4. FEES AND EXPENSES 16
5. CANCELLATION 19
PART III : THE LOAN 22
6. ADVANCE OF FUNDS 22
7. CURRENCY OPTION 25
8. INTEREST 26
9. REPAYMENT 30
10. PREPAYMENT 33
PART IV: CHANGES OF CIRCUMSTANCES AND PAYMENTS 39
11. CHANGES OF CIRCUMSTANCES 39
12. PAYMENTS 44
13. LATE PAYMENT 46
14. SHARING AMONG LENDERS 46
PART V : GUARANTEE AND INDEMNITY 48
15. GUARANTEE 48
16. GUARANTOR'S INDEMNITY 50
PART VI : REPRESENTATIONS, COVENANTS AND TERMINATION EVENTS 51
17. REPRESENTATIONS 51
18. INFORMATION COVENANTS 55
19. FINANCIAL COVENANTS 59
20. GENERAL COVENANTS 64
21. TERMINATION EVENTS 75
PART VII : MISCELLANEOUS 80
22. THE AGENT AND THE ARRANGERS 80
23. EVIDENCE AND CERTIFICATES 84
24. NOTICES 85
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25. ASSIGNMENT AND NOVATION 85
26. WAIVERS, AMENDMENTS AND RELEASES OF SECURITY 87
27. MISCELLANEOUS 88
28. LAW 88
SCHEDULE 1: LENDERS AND COMMITMENTS 89
SCHEDULE 2: COSTS RATE 91
SCHEDULE 3: CONDITIONS PRECEDENT TO DRAWING ON OR AFTER THE AMENDMENT
DATE 93
SCHEDULE 4: FORM OF SUBSTITUTION CERTIFICATE 95
SCHEDULE 5: FORM OF NOTICE FOR THE ADVANCE 97
SCHEDULE 6: FORM OF ADDITIONAL GUARANTOR AGREEMENT 98
SCHEDULE 7: FORM OF CONFIDENTIALITY UNDERTAKING 100
SCHEDULE 8: FORM OF OPINION OF XXXXXXXXX AND MAY 102
SCHEDULE 9: FORM OF OVERDRAFT BANK AGREEMENT 110
SCHEDULE 10: FORM OF HEDGING BANK AGREEMENT 115
SCHEDULE 11: REQUIREMENTS FOR HEDGING CONTRACTS 121
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DATE: 18th June, 1999
CASTLE TRANSMISSION INTERNATIONAL LTD.
AS BORROWER
CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD.
AND
MILLENNIUM COMMUNICATIONS LIMITED
AS GUARANTORS
THE LENDERS LISTED IN SCHEDULE 1
CREDIT SUISSE FIRST BOSTON
AS LEAD ARRANGER
CREDIT LYONNAIS
THE INDUSTRIAL BANK OF JAPAN, LIMITED
THE ROYAL BANK OF SCOTLAND PLC
SCOTIABANK EUROPE PLC
AS ARRANGERS
CREDIT SUISSE FIRST BOSTON
AS AGENT
_________________________________________________________
LOAN AMENDMENT AGREEMENT
(Pounds)64,000,000 REVOLVING LOAN FACILITY
BEING AMENDED TO (Pounds)150,000,000 TERM AND REVOLVING LOAN FACILITIES
_________________________________________________________
XXXXXXXXX AND MAY
00 XXXXXXXXXX XXXXXX
XXXXXX
XX0X 0XX
(AGB/HZM)
CONFORMED COPY
LOAN AGREEMENT
DATE: 28th February, 1997 as amended on 21st May, 1997 and on 18th June, 1999
PARTIES
1. CASTLE TRANSMISSION INTERNATIONAL LTD. (formerly known as Castle
Transmission Services Limited), a company incorporated in England (number
3196207), of Warwick Technology Park, Gallows Hill, Xxxxxxxxx Xxxx, Xxxxxxx
XX00 0XX, as borrower
2. CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD., a company incorporated in
England (number 3242381), of Warwick Technology Park, Gallows Hill,
Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX and MILLENNIUM COMMUNICATIONS LIMITED, a
company incorporated in England (number 2903056), of Warwick Technology
Park, Gallows Hill, Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX, as guarantors
3. THE LENDERS listed in Schedule 1, as lenders
4. CREDIT SUISSE FIRST BOSTON, as lead arranger
5. CREDIT LYONNAIS, THE INDUSTRIAL BANK OF JAPAN, LIMITED, THE ROYAL BANK OF
SCOTLAND PLC and SCOTIABANK EUROPE PLC as arrangers
6. CREDIT SUISSE FIRST BOSTON, as agent
BACKGROUND
(A) At the request of the Borrower the Lenders are willing to provide a
(Pounds)100,000,000 revolving facility which will convert into a term loan
facility on the third anniversary of the Amendment Date and a
(Pounds)50,000,000 revolving loan facility to the Borrower on the terms of
this Agreement. The loan facilities will contain a euro option. In
addition, the loan facilities are to be guaranteed by the Guarantors and
secured by the Charges granted by the Borrower and the Guarantors.
(B) The Borrower has utilised all the amounts advanced to it under this
Agreement before the Amendment Date for the purpose of acquiring "DTT
Equipment", as defined in the Bonds.
The parties agree as follows:
PART I: INTERPRETATION
1. INTERPRETATION AND CALCULATIONS
1.1 DEFINITIONS
In this Agreement:
"ADVANCE" means an advance made, or to be made, under Clause 6.
"ADVANCE DATE" means the date, or proposed date, of an Advance.
"AGENT" means Credit Suisse First Boston, in its capacity as agent for the
Lenders, acting through its office at Five Xxxxx Xxxxxx, Xxxxxx X00 0XX or
any other office in England which it may notify to the Borrower and the
Lenders. If there is a change of Agent in accordance with Clause 22.12,
"AGENT" will instead mean the new Agent appointed under that Clause.
"AMENDMENT DATE" has the meaning described in Clause 0.
"ANALOGUE TRANSMISSION AGREEMENT" means the agreement between the Borrower
and the BBC dated 27th February, 1997 as amended by an amending agreement
dated 16th July, 1998 relating to the analogue transmission by the Borrower
of television and radio programmes produced by the BBC.
"ANALOGUE TRANSMISSION BUSINESS" means the business previously carried on
by the BBC and assumed by the Borrower under the transfer scheme dated 24th
February, 1997 made by the BBC in favour of, among others, the Borrower.
This business is the provision of broadcasting, transmission and signal
distribution services for radio and analogue television.
"APPLICABLE MARGIN" means the rate determined in accordance with Clause
8.8.
"ARRANGERS" means each of Credit Suisse First Boston in its capacity as
lead arranger and Credit Lyonnais, The Industrial Bank of Japan, Limited,
The Royal Bank of Scotland plc and Scotiabank Europe Plc, in their
capacities as arrangers of the Facilities.
"AUTHORISED PERSON" means a person authorised to sign documents on behalf
of a Company under this Agreement by virtue of a resolution of the
directors of that Company a certified copy of which has been delivered to
the Agent. A person will cease to be an "AUTHORISED PERSON" upon notice by
the appointing Company to the Agent.
"AVAILABLE COMMITMENT" means Available Facility A Commitment or Available
Facility B Commitment or both.
"AVAILABLE FACILITY A COMMITMENT" means the amount of a Lender's Facility A
Commitment which is available for the Borrower. On any day, it is the
Facility A Commitment of that Lender less that Lender's participation in
all outstanding Facility A Advances. Participations in Facility A Advances
in the Optional Currency will be taken at their Original Sterling Amount.
"AVAILABLE FACILITY B COMMITMENT" means the amount of a Lender's Facility B
Commitment which is available to the Borrower. On any day it is that
Lender's Facility B Commitment on that day less that Lender's aggregate
participation in all outstanding Facility B Advances. Participations in
Facility B Advances in the Optional Currency will be taken at their
Original Sterling Amount.
"BBC" means The British Broadcasting Corporation.
"BBC DTT TRANSMISSION AGREEMENT" means the DTT transmission agreement
entered into between the Borrower and BBC dated 10th February, 1998 under
which the Borrower has agreed to provide, amongst other things,
distribution and transmission services to the BBC in relation to multiplex
facilities for DTT.
"BONDS" means the (Pounds)125,000,000 Guaranteed Bonds due 2007 issued on
21st May, 1997 by CT Finance.
"BORROWER" means Castle Transmission International Ltd., the first party to
this Agreement.
"BORROWER'S GROUP" means:
(A) if the Borrower has no Subsidiaries, the Borrower; and
(B) if the Borrower has Subsidiaries, the Borrower and its Subsidiaries
taken as a whole.
"BORROWER'S RESTRICTED GROUP" has the meaning described in Clause 19.1.
"BUSINESS DAY" means a day on which banks are open for inter-bank payments
in London.
"CCIC" means Crown Castle International Corporation.
"CCIC AFFILIATE" means a wholly-owned Subsidiary of CCIC other than a
member of the Borrower's Group.
"Certifying Financial Officer" means:
(A) the senior financial officer of the Borrower; or
(B) any other person authorised to sign certificates under this Agreement
on behalf of the Borrower in place of the senior financial officer and
who is so authorised by virtue of a resolution of the directors of the
Borrower (a certified copy of which has been delivered to the Agent).
"CHARGED ACCOUNT" means the account of the Borrower with the Agent which is
the subject of the Deposit Agreement and Charge on Cash Deposits.
"CHARGES" means:
(A) the Debenture;
(B) the Deposit Agreement and Charge on Cash Deposits;
(C) each deed of accession executed and delivered pursuant to Clause 28.2
of the Debenture including the deed of accession entered into between
Millennium, the Parent and the Agent as of 27th October, 1998;
(D) any other document creating in any foreign jurisdiction a form of
security similar to that created under the Debenture in a form
satisfactory to the Agent but which shall not contain terms materially
more onerous than the Debenture;
(E) the Scottish Charge;
(F) the Northern Irish Charge; and
(G) any other document executed in accordance with the terms of a "CHARGE"
or this Agreement and expressed to be, or to be supplemental to, a
Charge.
"COMMITMENTS" means Facility A Commitments and Facility B Commitments.
"COMPANY" means any of the Borrower and each Guarantor.
"CONTRACT OF SERVICES" means the contract of services in the agreed form
between the Borrower and CCIC.
"CONVERSION DATE" means the third anniversary of the Amendment Date. If
this date is not a Business Day the "CONVERSION DATE" will instead be the
next Business Day, unless that day is in another calendar month. Where it
is in another calendar month that "CONVERSION DATE" will instead be the
preceding Business Day.
"CONVERTED FACILITY A ADVANCE" means a Facility A Advance(s) outstanding
with effect from the Conversion Date or any Facility A Advance into which
this Converted Facility A Advance is split or consolidated in accordance
with Clause 8.1(B).
"COSTS RATE" means a rate per annum determined by the Agent and notified to
the Borrower. This rate will be applied to an outstanding amount in
sterling for a particular period. It will be calculated in accordance with
Schedule 2.
"CT FINANCE" means Castle Transmission (Finance) plc (a company
incorporated in England and Wales with registered number 3347387).
"DEBENTURE" means the debenture creating fixed and floating charges or, in
the case of the Parent, a charge over the shares held by it in the Borrower
dated 28th February, 1997 and made between the Parent, the Borrower and
Credit Suisse First Boston as trustee for the Lenders as acceded to by
Millennium as of 27th October, 1998 and as supplemented and amended by the
Supplemental and Amendment Deed.
"DEBT COVERAGE" has the meaning described in Clause 19.1.
"DEPOSIT AGREEMENT AND CHARGE ON CASH DEPOSITS" means the agreement dated
28th February, 1997 and amended with effect from 21st May, 1997 and further
amended by the Deposit Charge Amendment Agreement with effect from the
Amendment Date and made between the Borrower as depositor and Credit Suisse
First Boston as agent and trustee for the Lenders.
"DEPOSIT CHARGE AMENDMENT AGREEMENT" means the agreement dated on or before
the Amendment Date and made between the Borrower as depositor and Credit
Suisse First Boston as agent and trustee for the Lenders amending the
Deposit Agreement and Charge on Cash Deposits (as in effect before the
Amendment Date).
"DISTRIBUTION" means any dividend or other distribution (as defined in
section 263(2) of the Companies Xxx 0000, but ignoring section 263(2)(b))
or any loan to shareholders.
"DTT" means digital terrestrial television.
"DTT TRANSMISSION BUSINESS" means the business of providing DTT
distribution and transmission services.
"EBITDA" has the meaning described in Clause 19.1.
"EMU LEGISLATION" means the legislative measures of the Council of the
European Union providing for the introduction of, changeover to, or
operation of, the euro.
"EQUITY CONSORTIUM" means CCIC, TeleDiffusion de France International S.A.,
Berkshire Partners LLC and funds managed by it and Candover Investments plc
and funds managed by it.
"EQUIVALENT AMOUNT" means the amount in the Optional Currency equivalent to
a specified amount in sterling. The "EQUIVALENT AMOUNT" will be calculated
using the Exchange Rate applicable to the date on which the amount in the
Optional Currency is to be or was advanced.
"EURIBOR" means a rate per annum determined by the Agent and notified to
the Borrower. This rate will be applied to an outstanding amount in euros
for a particular period. It will be determined as follows:
(A) "EURIBOR" will be the Screen Rate for deposits in euro for that
period. This rate will be determined at or about 11.00 a.m. (Brussels
time) on the Rate Fixing Date relating to the first day of that
period.
(B) If there is no Screen Rate for euro for that period, "EURIBOR" will be
calculated using the rate at which deposits in euro are offered to the
Reference Banks for that period by leading banks in the European
inter-bank market. Each Reference Bank will notify the Agent of this
rate when requested by the Agent. The rate notified will be the rate
as at 11.00 a.m. (Brussels time) on the Rate Fixing Date relating to
the first day of that period. The Agent will calculate the arithmetic
mean of these rates, rounded upwards to five decimal places. This
will be "EURIBOR" for the period. If fewer than two Reference Banks
provide the Agent with notifications for a particular period, this
method of determining "EURIBOR" will not be used for that period and
Clause 11.3 will apply instead.
"EURO" or "E" means the single currency of the participating member states
in the Third Stage.
"EURO UNIT" means a unit of the euro as defined in the EMU legislation.
"EXCEPTIONAL ITEMS" has the meaning described in Clause 19.1.
"EXCESS CASH FLOW" has the meaning described in Clause 10.3(G).
"EXCHANGE RATE" means a rate of exchange for converting an amount in
sterling into an amount in the Optional Currency. The "EXCHANGE RATE"
applicable to any date will be the Agent's spot rate for the purchase of
euro using sterling at or around 11.00 a.m. on the third Business Day
before that date.
"EXTRAORDINARY ITEMS" has the meaning described in Clause 19.1.
"FACILITIES" means the loan facilities provided by this Agreement.
"FACILITY A" means the loan facility described in Clause 2.1(A).
"FACILITY A ADVANCE" means an Advance made or outstanding, or to be made,
under Facility A.
"FACILITY A COMMITMENT" means the amount which each Lender has committed to
Facility A. Each Lender's initial "FACILITY A COMMITMENT" is the amount
set out next to its name in the column numbered (1) of Schedule 1. This
may be reduced or revised in accordance with this Agreement. In addition
the amount of a Lender's "FACILITY A COMMITMENT" may be adjusted by
assignments and assumptions in accordance with Clause 25.2 and novations in
accordance with Clause 25.3.
"FACILITY A COMMITMENT AVAILABILITY TERMINATION DATE" means the Conversion
Date or, if earlier, the date Facility A is cancelled in full in accordance
with the terms of this Agreement.
"FACILITY A LOAN" means the principal amount borrowed and not repaid under
Facility A.
"FACILITY A REPAYMENT DATE" means each of the nine dates set out in Clause
9.3. If any of those dates is not a Business Day that "FACILITY A REPAYMENT
DATE" will instead be the next Business Day, unless that day is in another
calendar month. Where it is in another calendar month that "FACILITY A
REPAYMENT DATE" will instead be the preceding Business Day.
"FACILITY B" means the revolving loan facility described in Clause 2.1(B).
"FACILITY B ADVANCE" means an Advance made, or to be made, under the
Facility B.
"FACILITY B COMMITMENT" means the amount which a Lender has committed to
Facility B. Each Lender's initial "FACILITY B COMMITMENT" is the amount
set out next to its name in the column numbered (2) of Schedule 1. This
may be reduced or revised in accordance with this Agreement. In addition
the amount of a Lender's "FACILITY B COMMITMENT" may be adjusted by
assignments and assumptions in accordance with Clause 25.2 and novations in
accordance with Clause 25.3.
"FACILITY B LOAN" means the principal amount borrowed and not repaid under
Facility B.
"FACILITY TERMINATION DATE" means the seventh anniversary of the Amendment
Date or, if earlier, the first date on which both Facility A is cancelled
in full and Facility B is cancelled in full, in either case, in accordance
with the terms of this Agreement.
"FINANCIAL INDEBTEDNESS" has the meaning described in Clause 19.1.
"FINANCIAL MODEL" means the management case model dated 9th June, 1999
which is described on its face as "Management Case, printed on 9th June,
1999 at 11.49 a.m." in the agreed form.
"FINANCING DOCUMENT" means each of this Agreement and each Charge (and
includes each amending agreement relating to any of them).
"FIXED CHARGE COVERAGE SERVICE RATIO" has the meaning described in Clause
19.1.
"FURTHER ACQUISITION" has the meaning described in Clause 20.1(L).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, at any time, accounting
principles generally accepted and adopted in England at such time.
"GROUP" means the Parent and its Subsidiaries.
"GUARANTEE" means the guarantee of amounts due under this Agreement
contained in Clause 15.
"GUARANTOR" means:
(A) the Parent, Millennium and each Restricted Subsidiary which has become
an additional guarantor in accordance with Clause 20.1(R); and
(B) the Borrower in respect of the obligations of each Restricted
Subsidiary under an Overdraft Bank Agreement.
"HEDGING BANK" means any Lender or any affiliate of any Lender which is
from time to time a party to a Hedging Contract.
"HEDGING BANK AGREEMENT" means an agreement substantially in the form of
Schedule 10.
"HEDGING CONTRACT" means a contract entered into by the Borrower as part of
its implementation of the Hedging Policy and includes all transactions
entered into under that contract.
"HEDGING POLICY" means the hedging policy of the Borrower and in a form
satisfactory to the Agent which is delivered by the Borrower under
paragraph 17 of Schedule 3.
"HOLDING COMPANY" has the meaning described in section 736 of the Companies
Xxx 0000.
"INDEBTEDNESS FOR BORROWED MONEY" of any person means:
(A) all obligations of that person for borrowed money,
(B) any indebtedness under any acceptance credit opened on behalf of that
person,
(C) the face amount of any bills of exchange (issued for the purposes of
raising finance) for which that person is liable,
(D) all obligations of that person under any bond, debenture, note or
similar instrument (but excluding any of the same which are issued in
connection with the performance of obligations under contracts which
are not payment obligations),
(E) all obligations of that person in respect of any interest rate or
currency swap or forward currency sale or purchase or other form of
interest or currency hedging transaction (including without limit
caps, collars and floors),
(F) all payment obligations of that person under any finance lease,
(G) all liabilities of that person (actual or contingent) under any
guarantee, bond, security, indemnity or other agreement in respect of
any Indebtedness for Borrowed Money of any other person, and
(H) any other liability (actual or contingent) undertaken by that person
for the purpose of raising finance.
"INFORMATION MEMORANDUM" means the information memorandum dated May, 1999
prepared to assist in the syndication of the Facilities.
"INSTRUCTING GROUP" means Lenders whose Facility A Commitments and Facility
B Commitments in aggregate exceed 66.6% of the total. If, however, an
Advance has been made "INSTRUCTING GROUP" means Lenders whose
participations in the Loan in aggregate exceed 66.6%. The amount of
participations in Advances in the Optional Currency will be taken at their
Original Sterling Amount.
"INTER-COMPANY LOAN AGREEMENT" means the inter-company loan agreement dated
21st May, 1997, between CT Finance and the Borrower as amended on or around
the Amendment Date.
"INTEREST" has the meaning described in Clause 19.1.
"INTEREST PERIOD" means each period described in Clause 8.1.
"INVESTMENT AMOUNTS" means, in relation to any period, the aggregate of:
(A) Indebtedness for Borrowed Money incurred by, provided by or otherwise
made available during that period by members of the Borrower's
Restricted Group in
relation to Unrestricted Entities. For this purpose any contingent
liabilities will be taken at their maximum amount;
(B) loans or other credit provided during that period by members of the
Borrower's Restricted Group (to the extent not already included in
paragraph (A) and with any contingent liabilities taken at their
maximum amount);
(C) any investments made during that period by members of the Borrower's
Restricted Group; and
(D) consideration paid during that period by members of the Borrower's
Restricted Group in respect of Further Acquisitions. For this purpose
the aggregate consideration paid will include any deferred purchase
price payable (which, in the case of any earn-out, will be a fair
estimate of the value of this earn-out) and any fair estimate of
contingent costs or liabilities assumed in connection with the Further
Acquisition (which shall include, in the case of joint ventures, any
obligation of the type referred to in Clause 20.1(L)(i)(c)) details of
which, in each case, must be set out in reasonable detail in the
certificate delivered to the Agent by the Certifying Financial Officer
under Clause 18.1(n). To the extent that amounts have already been
taken into account in respect of any deferred purchase price payable
or contingent costs or liabilities assumed these amounts will not be
again taken into account during the period when they are paid,
in each case, calculated so as to eliminate any double counting.
"LENDER" means a lender listed in Schedule 1 acting through the office
appearing under its name on the signature pages or any other office in the
United Kingdom which it may notify to the Agent. A lender which acquires
an interest in the Facilities by way of assignment or novation will become
a "LENDER" and will act through its office notified to the Agent. The
expression also includes a successor in title to a Lender. A Lender will
cease to be a "LENDER" if it assigns or novates its entire interest in the
Facilities.
"LENDER GROUP COMPANY" means a Lender or any Holding Company of a Lender.
"LIBOR" means a rate per annum determined by the Agent and notified to the
Borrower. This rate will be applied to an outstanding amount in sterling
for a particular period. It will be determined as follows:
(A) "LIBOR" will be the Screen Rate for deposits in sterling for that
period. This rate will be determined at or about 11.00 a.m. on the
Rate Fixing Date relating to the first day of that period.
(B) If there is no Screen Rate for deposits in sterling for that period,
"LIBOR" will be calculated using the rate at which deposits in
sterling are offered to the Reference Banks for that period by leading
banks in the London inter-bank market. Each Reference Bank will notify
the Agent of this rate when requested by the Agent. This rate will be
determined at or about 11.00 a.m. on the Rate Fixing Date relating to
the first day of that period. The Agent will calculate the arithmetic
mean of these rates rounded upwards to five decimal places. This will
be "LIBOR" for the period. If fewer than two Reference Banks provide
the Agent with notifications for a particular period, this method of
determining "LIBOR" will not be used for that period and Clause 11.3
applies.
"LOAN" means the aggregate principal amount borrowed and not repaid under
the Facilities.
"MATERIAL CONTRACT" means each Transmission Agreement, the NTL Site Sharing
Agreement and any other contract generating 10% or more of the Borrower's
gross
revenues (measured annually on the basis of the latest set of annual
audited accounts of the Borrower delivered to the Agent under Clause
18.1(a)).
"MILLENNIUM" means Millennium Communications Limited, one of the second
parties to this Agreement.
"NATIONAL CURRENCY UNIT" or "NCU" means a unit of the euro (other than the
euro unit) as defined in the EMU legislation.
"NET CASH INTEREST" has the meaning described in Clause 19.1.
"NET DISPOSAL PROCEEDS" means, in respect of a disposal, the gross proceeds
of that disposal minus:
(A) reasonable costs of the disposal;
(B) liabilities (including, without limitation, liabilities to the BBC)
which are required to be discharged as a result of the disposal (other
than liabilities incurred in contemplation of it);
(C) provisions which the directors reasonably determine need to be made
for taxes arising as a result of the disposal; and
(D) where the asset which is the subject of the disposal is being
replaced, the cost of the replacement asset to the extent that it is
acquired for cash within the period 6 months before or after the
disposal.
If the "NET DISPOSAL PROCEEDS" would be a negative number it will be taken
to be zero. Where a disposal is made for non-cash consideration, the gross
proceeds of that disposal will be calculated as the market value of the
assets disposed of, as certified to the Agent by the Borrower and, if the
Agent requests, the Borrower's auditors.
"NEW SUBSIDIARY" has the meaning given to it in Clause 20.1(R)(ii).
"NORTHERN IRISH CHARGE" means the agreement to be executed after the
Amendment Date and made by the Borrower in favour of the Agent creating a
first fixed charge over certain real properties located in Northern
Ireland.
"NTL SITE SHARING AGREEMENT" means the deed dated 10th September, 1991
between National Transcommunications Limited and the BBC relating to site
sharing.
"ONDIGITAL" means ONDIGITAL PLC (formerly known as British Digital
Broadcasting PLC).
"ONDIGITAL DTT TRANSMISSION AGREEMENT" means the DTT transmission agreement
entered into between the Borrower and ONDIGITAL dated 18th December, 1997
under which the Borrower has agreed to provide, amongst other things,
distribution and transmission services to ONDIGITAL in relation to three
multiplex facilities for DTT.
"OPTIONAL CURRENCY" means euro.
"ORIGINAL STERLING AMOUNT" means the sterling equivalent of an amount in
the Optional Currency. The "ORIGINAL STERLING AMOUNT" will be derived by
using the Exchange Rate applicable to the date on which the amount in the
Optional Currency is to be or was advanced.
"OVERDRAFT BANK" means any Lender or any affiliate of any Lender which from
time to time provides Overdraft Facilities.
"OVERDRAFT BANK AGREEMENT" means an agreement substantially in the form of
Schedule 9.
"OVERDRAFT FACILITIES" means any overdraft facilities (which may be in
sterling or other currencies) provided to the Borrower or any other member
of the Borrower's Restricted Group by Overdraft Banks which have signed
Overdraft Bank Agreements with the Borrower or, as the case may be, the
other member of the Borrower's Restricted Group.
"PARENT" means Castle Transmission Services (Holdings) Ltd., one of the
second parties to this Agreement.
"PARTICIPATING MEMBER STATES" means those member states of the European
Union from time to time which adopt a single, shared currency in the Third
Stage, as defined and identified in the EMU legislation.
"POTENTIAL TERMINATION EVENT" means an event or state of affairs which is
mentioned in Clause 21.1 but which has not become a Termination Event
because a period has not elapsed or a notice has not been given.
"QUARTER" means a financial quarter of the Borrower's financial year.
"RATE FIXING DATE" means the day on which quotes are customarily taken for
the relevant period:
(A) in the case of LIBOR, for deposits in sterling in the London inter-
bank market; or
(B) in the case of EURIBOR, for deposits in euros in the European inter-
bank market,
in either case for delivery on the Advance Date (which, in relation to
euro, means a day on which the Trans-european Automated Real time Gross
settlement Express Transfer system (TARGET) is open).
"Reference Banks" means, initially, the principal London (or, in the case
of an amount in euros, Brussels) offices of Credit Suisse First Boston, The
Royal Bank of Scotland plc and Scotiabank Europe plc. The Agent, following
consultation with the Borrower and the Lenders, may replace a "REFERENCE
BANK" with another Lender or an affiliate of a Lender. This replacement
will take effect when notice is delivered to the Borrower and the Lenders.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Borrower which is not
then an Unrestricted Subsidiary and which, accordingly, is either:
(A) required to become a Guarantor for the purposes of Clause 20.1(R); or
(B) not required to become a Guarantor for the purposes of Clause 20.1(R)
as a result of Clause 20.1(R)(v).
"Scottish Charge" means the agreement to be executed after the Amendment
Date and made by the Borrower in favour of the Agent creating a first fixed
charge over certain real properties located in Scotland.
"SCREEN RATE" means the rate shown on:
(A) in the case of LIBOR, Telerate page 3750; or
(B) in the case of EURIBOR, Telerate page 248.
If either of these pages is replaced by another which displays the rates
for inter-bank deposits offered by leading banks in London (in the case of
LIBOR) or Europe (in the case of EURIBOR) the Agent may nominate an
alternative page for the affected page.
"SECURITY" means security of any type created or existing over any asset.
"SECURITY" will also include retention of title arrangements, rights to
retain possession and any arrangement providing a creditor with a prior
right to an asset, or its proceeds of sale, over other creditors in a
liquidation.
"SHARE SALE AGREEMENT" means the Share Sale Agreement dated 23rd January,
1997 and made between the BBC and the Parent concerning the acquisition by
the Parent of the Borrower. It also includes any disclosure letters.
"SHAREHOLDERS AGREEMENT" means the Shareholders' Agreement dated 21st
August, 1998 (replacing a shareholders agreement dated 23rd January, 1997)
and made between CCIC, TeleDiffusion de France International S.A. and the
Parent and to which Digital Future Investments B.V. acceded and replaced
TeleDiffusion de France International S.A. as a party under a deed of
adherence dated 6th April, 1999.
"SUBORDINATED LOAN AGREEMENT" means the agreement dated 27th February, 1997
between the Borrower, the Parent and the Agent relating to the provision of
subordinated loans by the Parent to the Borrower.
"SUBSIDIARY" has the meaning described in section 736 of the Companies Xxx
0000.
"SUBSTITUTION CERTIFICATE" means a document substantially in the form set
out in Schedule 4.
"SUPPLEMENTAL AND AMENDMENT DEED" means the deed dated on or before the
Amendment Date and made between the Parent, the Borrower, Millennium and
Credit Suisse First Boston as trustee for the Lenders supplementing and
amending the Debenture (as in effect before the Amendment Date).
"TDF ROLL-UP" has the meaning described in Clause 20.1(EE).
"TERMINATION EVENT" has the meaning described in Clause 21.1.
"THIRD STAGE" means the third stage of European economic and monetary union
pursuant to the Treaty establishing the European Community (as amended from
time to time).
"TOTAL ANNUAL INVESTMENT LIMIT" means, in each financial year, the figure
which is 10% of the gross assets of the Borrower's Restricted Group (as
shown in the latest set of annual audited consolidated financial statements
delivered to the Agent under Clause 18.1(b) at the time the relevant
calculation in respect of the financial year in question is being made).
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments of all the Lenders.
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments of all the Lenders.
"TOTAL INTEREST PAYABLE" has the meaning described in Clause 19.1.
"TRANSMISSION AGREEMENTS" means the Analogue Transmission Agreement, the
BBC DTT Transmission Agreement and the ONDIGITAL DTT Transmission Agreement
or such one of them as the context requires.
"UNRESTRICTED ENTITY" means Unrestricted Subsidiaries and any other entity
in which a member of the Restricted Group holds a less than majority
interest.
"UNRESTRICTED ENTITIES INVESTMENT LIMIT" means, at any time, the figure
which is 10% of the gross assets of the Borrower's Restricted Group (as
shown in the latest set of annual audited consolidated financial statements
delivered to the Agent under Clause 18.1(b) at the time the relevant
calculation in respect of the financial year in question is being made).
"UNRESTRICTED SUBSIDIARY" has the meaning described in Clause 20.1(R)(ii).
"YEAR 2000 PROGRAMME REPORT" means the report issued by the Borrower on 1st
June, 1999 in relation to Year 2000 readiness (as amended and updated from
time to time).
1.2 INTERPRETATION OF CERTAIN REFERENCES
Unless a contrary intention is indicated:
(A) References to Clauses and Schedules are to Clauses of, and the
Schedules to, this Agreement. References to paragraphs are to
paragraphs in the same sub-clause. References to sub-paragraphs are to
sub-paragraphs in the same paragraph.
(B) References to other documents include those documents as they may be
amended in the future.
(C) References to times are to London time.
(D) References to assets are to present and future assets and include
revenues.
(E) References to "(Pounds)", to "POUNDS" and to "STERLING" are to UK
pounds sterling.
(F) References to fees or expenses include any value added tax on those
fees or expenses.
(G) References to statutes and statutory instruments are to those statutes
and statutory instruments as amended and in force from time to time.
(H) References to any document in "AGREED FORM" are to that document in
the form agreed between the parties, as evidenced by the form of that
document being initialled for the purpose of identification by Xxxxxx
Xxxx and Xxxxxxxxx and May.
(I) References to a "FINANCIAL YEAR" of the Borrower are references to a
year starting on 1st January and ending on 31st December. This applies
even where the Borrower's statutory accounting reference date is a
date other than 31st December.
(J) References to:
(i) "THIS AGREEMENT" are references to the Loan Agreement dated
28th February, 1997 between the Borrower, the Parent, the
Lenders, the Agent and others as amended by the amendment
agreements dated 21st May, 1997 and 18th June, 1999 and as
supplemented by the additional guarantor agreement dated with
effect from 27th October, 1998 under which Millennium acceded
as a party to this Agreement.
However, the reference to "this Agreement" in Clause 2.2(A) is
to the Loan Agreement referred to above before the Amendment
Date.
(ii) the "AMENDMENT DATE" are references to the date on which the
second amendment to this Agreement becomes effective, which is
expected to be 18th June, 1999.
1.3 HEADINGS
All headings and titles are inserted for convenience only. They are to be
ignored in the interpretation of this Agreement.
1.4 CALCULATIONS
Interest and commitment fee will be calculated using the following formula:
I= D/Y x R x A
where:
I = interest or commitment fee accrued
D = number of days in the period for which the interest or commitment
fee is to be calculated, including the first day but excluding
the last day
R = the rate of interest or commitment fee, expressed as a fraction
A = the amount on which interest or commitment fee is being
calculated
Y = 365 or, in the case of an amount in euro, 360.
Interest and commitment fee will be treated as accruing uniformly over each
period on a daily basis.
In some cases "R" or "A" may change during a period for which interest and
commitment fee is to be calculated. In this case the interest and
commitment fee will be calculated for successive periods and then
aggregated. These successive periods will be the periods during which "R"
and "A" were constant.
1.5 REIMBURSEMENTS
If a party wishes to claim reimbursement of any amount to which it is
entitled it will deliver a demand to the reimbursing party. This will set
out the losses, expenses or other amounts to be reimbursed. It must also
specify the currency of reimbursement. The reimbursing party agrees to pay
those amounts to the party entitled to them no later than two Business Days
after the delivery of the demand to the reimbursing party. Where there is
an outstanding Termination Event, payment will be due instead on delivery
of this demand.
1.6 IMPACT OF THE INTRODUCTION AND OPERATION OF THE EURO
Market practice relating to the inter-bank deposit market, the method and
timing of rate fixing and the calculation of interest may change during the
Third Stage. As a result, it may differ from the method of rate fixing and
the calculation of interest prescribed under the terms of this Agreement
and may also change in relation to drawings in sterling if it is
substituted by the euro after the Amendment Date. In this event, the
Agent may notify the Borrower and the Lenders of the amendments to this
Agreement which are required
or reasonably desirable to reflect and conform to these changes. The
amendments may provide for the use of London inter-bank market offered
rates or inter-bank market offered rates from a wider European market (or,
in either case, screen rates reflecting these offered rates). They may also
change, amongst other things, the rate fixing time, the definition of
"Business Day" and "Rate Fixing Date" and any elements of the formula set
out in Clause 1.4. The amendments set out in the Agent's notice will take
effect on the later of the date specified in the notice, the date not less
than 10 Business Days after the date of that notice and (in the case of
such changes being made due to a country becoming a participating member
state after the Amendment Date) the date on which that participation
commences. The amendments will not apply to interest which is computed by
reference to any period starting before the date the amendments take
effect. This clause may, in appropriate circumstances, be invoked more than
once.
PART II : THE FACILITIES
2. THE FACILITIES
2.1 AMOUNT AND NATURE
The Facilities comprise:
(A) A seven-year (Pounds)100,000,000 revolving loan facility with a euro
option which converts into a term loan facility on the Conversion Date
under which advances may (subject to the terms and conditions of this
Agreement) be made by the Lenders to the Borrower.
(B) A seven-year (Pounds)50,000,000 revolving loan facility with a euro
option under which advances may (subject to the terms and conditions
of this Agreement) be made by the Lenders to the Borrower.
2.2 PURPOSE
The Borrower agrees to use the proceeds of all Advances to:
(A) refinance existing Indebtedness for Borrowed Money;
(B) finance its working capital, capital expenditure and other related
costs in developing the infrastructure for its DTT transmission
network (including for the purposes of acquiring "DTT Equipment" and
making "Tower Acquisitions", both terms as defined in the Bonds); and
(C) finance its working capital and for its other general corporate
purposes, including for the purpose of making Further Acquisitions
permitted under Clause 20.1(L).
Without prejudice to the obligations of the Borrower under this sub-clause
2.2, neither the Agent nor the Lenders nor any of them shall be obliged to
concern themselves with the application of amounts to be used or raised by
the Borrower under this Agreement.
2.3 AVAILABILITY AFTER THE AMENDMENT DATE
The Borrower may borrow under the Facilities (in their amended form as set
out in this Agreement) on or after the Amendment Date after the Agent has
received all the items listed in Schedule 3 in a form satisfactory to the
Agent or, where the form has been agreed prior to the signing of this
Agreement, in the agreed form.
2.4 EXPIRY OF AVAILABILITY
(A) The Borrower may not borrow under Facility A after the Facility A
Commitment Availability Termination Date.
(B) The Borrower may not borrow under Facility B after the date falling
one month before the Facility Termination Date.
2.5 SECURITY
All amounts owing under this Agreement will be secured by the Charges.
3. THE LENDERS AND THE BORROWER
3.1 RIGHTS AND OBLIGATIONS
The rights and obligations of each Lender under the Financing Documents are
separate and independent from the rights and obligations of each other
Lender. A Lender may take proceedings against the Borrower or a Guarantor
on its own without joining any other Lender to those proceedings.
3.2 FAILURE TO PERFORM
If a Lender fails to perform its obligations the Borrower and the
Guarantors will have rights solely against that Lender. The obligations of
the Borrower and the Guarantors to the Agent, the Arrangers and the other
Lenders will not be affected by this failure.
3.3 PARTICIPATIONS
The participation of a Lender in an Advance will be calculated using the
following formula:
P = C/F x A
where:
P = the participation of that Lender in the Advance
C = the Available Commitment of that Lender on the Advance Date for
that Advance
F = the aggregate Available Commitments of all the Lenders on that
Advance Date
A = the amount of the Advance.
References above to Available Commitments are to:
(A) Available Facility A Commitments in the case of an Advance under
Facility A; and
(B) Available Facility B Commitments in the case of an Advance under
Facility B.
The Agent may round participations upwards or downwards to the nearest unit
of currency.
4. FEES AND EXPENSES
4.1 FRONT-END FEE
The Borrower agrees to pay a front-end fee to the Arrangers. The amount of
this fee, the timing of payment and the payees are described in a letter
from Credit Suisse First Boston to the Borrower dated 28th April, 1999.
This fee may be shared amongst the Arrangers and Lenders in accordance with
the agreement between the Arrangers and each Lender (but that agreement
shall be of no concern to the Borrower, who shall obtain a good discharge
by making payment in accordance with the above-mentioned letter).
4.2 AGENCY FEE
The Borrower agrees to pay an agency fee to the Agent. The amount of this
fee and the timing of payment are described in a letter from the Agent to
the Borrower dated 28th April, 1999.
4.3 COMMITMENT FEE
A commitment fee will accrue on the aggregate of the Available Facility A
Commitments and the Available Facility B Commitments of each Lender. This
fee will accrue from the Amendment Date until:
(A) in the case of Available Facility A Commitment, the Facility A
Commitment Availability Termination Date; and
(B) in the case of Available Facility B Commitment, the date falling one
month before the Facility Termination Date.
The Borrower agrees to pay the fee to each Lender in arrears at three-
monthly intervals and on the Facility Termination Date.
The rate of the fee applicable to each three-monthly period or shorter
period ending on the Facility Termination Date will be:
(A) in the case of the Available Facility A Commitment, half the
Applicable Margin which would apply on the first day of the relevant
period if an amount was advanced under Facility A on that date; and
(B) in the case of the Available Facility B Commitment, half the
Applicable Margin which would apply if an amount was advanced under
Facility B on that date.
4.4 REIMBURSEMENT OF INITIAL EXPENSES
The Arrangers and the Agent have incurred and will incur expenses in
connection with the arrangement of the Facilities. The Borrower agrees to
reimburse each of the Arrangers and the Agent for the amount of these
expenses. They include the legal fees incurred in the negotiation,
preparation and signature of the Financing Documents. They also include
expenses incurred (after as well as before the Amendment Date) in
perfecting any security constituted by the Charges and as part of the
syndication process of the amended Facilities arranged by the Arrangers.
4.5 DOCUMENTARY TAXES
This sub-clause applies if any registration fee, stamp duty or other
documentary tax is required to be paid on or in connection with a Financing
Document, any document referred to in or contemplated by a Financing
Document or any judgment obtained in connection with a Financing Document.
It also applies if a fee, duty or tax is payable in order for any of these
documents to be valid, binding and enforceable, for the Security under the
Charges to be perfected or for the Financing Documents to be admitted as
evidence in court. In these circumstances the Borrower agrees to pay the
fee, duty or tax together with any interest or penalty for late payment.
Alternatively, the Agent or a Lender may make the payment. If it does so,
the Borrower agrees to reimburse the Agent or that Lender for the amount
paid and the losses and expenses incurred as a result of the payment.
4.6 PROTECTION OF RIGHTS
An Arranger, the Agent or a Lender may incur expenses in protecting,
preserving or (if any Company is in breach of its obligations under the
Financing Documents) enforcing its rights under the Financing Documents.
The Borrower agrees to reimburse that Arranger, the Agent or that Lender
for the amount of these expenses.
4.7 EXPENSES RELATING TO AMENDMENTS
The Borrower agrees to reimburse the Agent for the expenses that it or any
of the Lenders incurs as a result of:
(A) any request made by the Borrower to waive or amend a term of the
Financing Documents; or
(B) any amendments to the Financing Documents made as a result of the
introduction or operation of the euro, including pursuant to Clause
1.6 and Clause 6.2(E).
4.8 FSA AND ECB FEES
(A) REIMBURSEMENT: This sub-clause applies if, whether now or in the
future, either:
(i) a requirement to pay fees is imposed by the Financial Services
Authority under the Fees Regulations; or
(ii) a reserve requirement is imposed by the European Central Bank,
which, in either case, is applied to any Lender (and would be applied
generally to banks or financial institutions of a similar nature to
that Lender) as a consequence of its Commitments, participation in
the Facilities or the arrangements made by it in funding its
participation in the Facilities. If, as a result, that Lender's
effective return on its overall capital is reduced, the Borrower
agrees to reimburse that Lender for the amount claimed.
(B) NOTIFICATION PERIOD: In the event that paragraph (A) applies, each
Lender may submit a certificate setting out a calculation of the
amount claimed by it to the Agent within the period (the
"CERTIFICATION PERIOD") of 10 Business Days after the end of each
Relevant Period. The Agent will notify the Borrower of the amount
claimed by that Lender within five Business Days after the end of the
relevant Certification Period. The Borrower agrees to reimburse that
Lender as provided in Clause 1.5.
(C) RELEVANT PERIOD: In this sub-clause a "RELEVANT PERIOD" is, as
appropriate:
(i) the period beginning on the Amendment Date and ending on 31st
December, 1999; or
(ii) each subsequent period of six months starting on the previous
day of preceding period and ending on 30th June or, as the case
may be, 31st December; and
(iii) the period shorter than six months which starts on 30th June or
31st December in a year and ends on the Facility Termination
Date.
(D) FEES REGULATIONS: In this sub-clause "Fees Regulations" means, as
appropriate, either:
(i) the Banking Supervision (Fees) Regulations 1999; or
(ii) such regulations as from time to time may be in force, relating
to the payment of fees for banking supervision in respect of
periods subsequent to 31st March, 2000.
5. CANCELLATION
5.1 VOLUNTARY CANCELLATION
The Borrower may cancel the whole or part of the Total Facility A
Commitments or the whole or part of the Total Facility B Commitments by
giving notice to the Agent. This notice will take effect five Business
Days after it is received by the Agent unless a later date is specified in
the notice. In that case the notice will take effect on the specified
date. A cancellation of anything less than the full amount of the
Facilities will, however, only take effect if the conditions in Clause 5.2
are satisfied. The Borrower may only cancel a part of the Total Facility A
Commitments or a part of the Total Facility B Commitments which, in either
case, is a minimum amount of (Pounds)5,000,000 and an integral multiple of
(Pounds)1,000,000.
5.2 CONDITIONS PRECEDENT TO VOLUNTARY CANCELLATION
A voluntary cancellation of anything less than the full amount of the
Facilities under Clause 5.1 will only be effective if both the following
are true:
(A) The Agent has received a certificate signed by the Certifying
Financial Officer or a director of the Borrower. The certificate must
relate to the proposed cancellation. It must state that, after the
cancellation takes effect, the Borrower will have sufficient sources
of liquidity in existence to meet its ongoing working capital and
general corporate requirements. The certificate must be received by
the Agent no later than the time it receives the notice of
cancellation.
(B) Reasonable evidence of the sources of liquidity referred to in
paragraph (A) has been delivered to the Agent before the cancellation
is due to take effect. This is only required if Lenders comprising an
Instructing Group request the Agent to demand this evidence. These
requests must be received by the Agent by no later than 5.00 p.m. on
the third Business Day before the date the proposed cancellation would
otherwise take effect.
5.3 MANDATORY CANCELLATION ON DISPOSALS
(A) OBLIGATION TO CANCEL: The Borrower agrees to cancel all or part of the
Total Facility A Commitments and the Total Facility B Commitments in
accordance with this sub-clause.
(B) CIRCUMSTANCES IN WHICH OBLIGATION TO CANCEL ARISES: The Borrower will
be obliged to make a cancellation under this sub-clause following the
disposal of any of the assets of the Borrower or any of its Restricted
Subsidiaries (a "DISPOSAL EVENT"). This does not apply to the
following disposals:
(i) A disposal of obsolete assets.
(ii) Disposals on arm's length terms where the aggregate fair market
value of the assets disposed of in any financial year of the
Borrower is no more than (Pounds)1,000,000.
(iii) A disposal between the Borrower and any Restricted Subsidiary
(which is a wholly-owned member of the Borrower's Restricted
Group) or
between Restricted Subsidiaries (each of which is a wholly-owned
member of the Borrower's Restricted Group).
(iv) Disposals for non-cash consideration. This exception will only
apply to the extent of a maximum amount in Net Disposal Proceeds
of (Pounds)2,500,000 during the period from the Amendment Date
until the Facility Termination Date.
(v) Disposals where the asset which is the subject of the disposal
is being replaced to the extent that the Net Disposal Proceeds
are applied to acquire the replacement asset within the period 6
months before or after the disposal.
(vi) A disposal by a Restricted Subsidiary where each of the
following is true:
(a) the Restricted Subsidiary is prevented by applicable law
from making an amount equal to the Net Disposal Proceeds
available to the Borrower for it to make any payment
resulting from a Disposal Event,
(b) the Borrower and that Restricted Subsidiary have used all
reasonable endeavours to enable an amount equal to the Net
Disposal Proceeds to be made available to the Borrower so
that any payment resulting from the Disposal Event can be
made, and
(c) the Borrower or that Restricted Subsidiary pays an amount
equal to the Net Disposal Proceeds into a blocked interest-
bearing account held with the Agent or a nominee of the
Agent and charged to the Agent as trustee or agent (or both)
for the Lenders under a document expressed to be a Charge.
(C) AMOUNT OF MANDATORY CANCELLATION: The amount of the Total Facility A
Commitments and the Total Facility B Commitments which will be
cancelled under this sub-clause will be an amount equal to the Net
Disposal Proceeds which will be applied first to cancel the Total
Facility A Commitments and thereafter to cancel the Total Facility B
Commitments.
(D) TIMING OF MANDATORY CANCELLATION: The amount of the Total Facility A
Commitments and/or the Total Facility B Commitments due to be
cancelled under this sub-clause will be cancelled on the date two
Business Days after receipt by a member of the Borrower's Restricted
Group of the proceeds of the disposal.
Where the disposal proceeds are received as deferred cash
consideration, the due date for cancellation will be deferred until
the date two Business Days after the Borrower or any of its Restricted
Subsidiaries realises cash from those proceeds.
Where the disposal proceeds are applied towards the cost of a
replacement asset as described in Clause 5.3(B)(v) and in paragraph
(D) of the definition of "NET DISPOSAL PROCEEDS" in Clause 1.1, the
due date for cancellation will be deferred (by no more than 6 months)
until the date two Business Days after the replacement asset is
acquired (if this occurs after receipt by a member of the Borrower's
Restricted Group of the Net Disposal Proceeds).
(E) INSUFFICIENT UNDRAWN COMMITMENTS: Clause 10.2 applies to the extent
that the amount of the cancellation exceeds the Available Facility A
Commitment or the Available Facility B Commitment, as the case may be.
(F) SUSPENSION OF MANDATORY CANCELLATION OBLIGATION: The requirement to
make a cancellation under this sub-clause will, however, no longer
apply after the date on which annualised Debt Coverage (computed in
accordance with Clause 8.8(B)) is below 3:1 for two successive
Quarters and for so long as:
(i) the annualised Debt Coverage remains at no more than 3:1; and
(ii) the Certifying Financial Officer confirms in writing in a
certificate delivered to the Agent under Clause 18.1(r), at the
same time as the delivery of each set of monthly management
accounts under Clause 18.1(e), that, to the best of his
knowledge, having made all reasonable enquiries, and without
personal liability, the Disposal Events which are proposed to
take place in the month following that to which the monthly
management accounts delivered relate will not result in the
Borrower failing to maintain annualised Debt Coverage at below
3:1 at any time during the next four full Quarters following the
date on which the last of proposed Disposal Events specified in
the certificate is due to take place.
5.4 MANDATORY CANCELLATION OF FACILITIES ON FLOTATION
The Facilities will be cancelled automatically upon the occurrence of the
circumstances giving rise to an obligation to prepay the Loan as described
in Clause 10.4.
5.5 NO REBORROWING AFTER CANCELLATION
The Borrower may not borrow any part of the Total Facility A Commitments or
the Total Facility B Commitments which has been cancelled or which is the
subject of a notice of voluntary cancellation.
5.6 EFFECT OF CANCELLATION
When any cancellation takes effect:
(A) In relation to Facility A, the Facility A Commitments of the Lenders
will be reduced by an aggregate amount equal to the reduction of the
Total Facility A Commitments. Each Lender's Facility A Commitment will
be reduced in the same proportion.
(B) In relation to Facility B, the Facility B Commitments of the Lenders
will be reduced by an aggregate amount equal to the reduction of the
Total Facility B Commitments. Each Lender's Facility B Commitment will
be reduced in the same proportion.
This does not apply to a cancellation under Clause 11.1(B), Clause 11.2(D)
or Clause 11.4(E). Those Clauses set out the manner in which cancellation
under their terms takes effect.
PART III : THE LOAN
6. ADVANCE OF FUNDS
6.1 NOTICE TO THE AGENT
When the Borrower wishes to borrow under a Facility it will deliver a
notice to the Agent. This notice must be substantially in the form of
Schedule 5. The notice must specify:
(A) the Facility under which the borrowing is to be made;
(B) the amount to be borrowed;
(C) the currency of the borrowing;
(D) the length of the Interest Period; and
(E) the date of the borrowing. This date must be no sooner than
(i) in relation to Advances in sterling, the first Business Day
after the date the Agent receives the notice; or
(ii) in relation to Advances in the Optional Currency, the third
Business Day after the date the Agent receives the notice.
For these purposes if the Agent receives the notice on a day which is not a
Business Day or after 10.00 a.m. on a Business Day, it will be treated as
having received the notice on the following Business Day. This does not
apply to an Advance to be made on the Amendment Date so long as this
Advance is made in sterling and that the notice is received by 8.00 a.m. on
the Amendment Date.
6.2 LIMITATIONS ON ADVANCES
The following limitations apply to Advances:
(A) FACILITY A ADVANCES: In the case of Facility A Advances:
(i) No Facility A Advance may exceed the Available Facility A
Commitments of all the Lenders. This limitation will be applied
as at the Advance Date. For this purpose, before the Conversion
Date:
(a) any part of the Total Facility A Commitments which is
subject to a notice of voluntary cancellation will be
treated as cancelled;
(b) the amount of any Facility A Advance due to be repaid on the
Advance Date will be treated as having been repaid;
(c) any other Facility A Advance due to be made on the Advance
Date will be treated as having been made; and
(d) Facility A Advances in the Optional Currency will be taken
into account at their Original Sterling Amount.
(ii) Each Facility A Advance must be a minimum of (Pounds)5,000,000
and an integral multiple of (Pounds)1,000,000 or be the
aggregate of the Available
Facility A Commitments. A Facility A Advance in the Optional
Currency must be either:
(a) a minimum of the Equivalent Amount of (Pounds)5,000,000 and an
integral multiple of the Equivalent Amount of (Pounds)1,000,000;
or
(b) the Equivalent Amount of the uncancelled and undrawn amount of
Facility A.
(iii) The Advance Date of any Facility A Advance must be a Business
Day on or after the Amendment Date and before the Facility A
Commitment Availability Termination Date.
(iv) The Interest Period of each Facility A Advance must comply with
Clause 8.
(v) Clause 6.2(C) applies.
(vi) If the Facility A Advance is not to be in sterling, Clause 7
applies.
(B) FACILITY B ADVANCES: In the case of Facility B Advances:
(i) No Facility B Advance may exceed the amount of the aggregate of
the Available Facility B Commitments of all the Lenders. This
limitation will be applied as at the Advance Date. For this
purpose:
(a) any part of the Total Facility B Commitments which is
subject to a notice of voluntary cancellation will be
treated as cancelled;
(b) the amount of any Facility B Advance due to be repaid on the
Advance Date will be treated as having been repaid;
(c) any other Facility B Advance due to be made on the Advance
Date will be treated as having been made; and
(d) Facility B Advances in the Optional Currency will be taken
into account at their Original Sterling Amount.
(ii) A Facility B Advance must be a minimum of (Pounds)5,000,000 and
an integral multiple of (Pounds)1,000,000 or be the aggregate of
the Available Facility B Facility Commitments of all the
Lenders. A Facility B Advance in the Optional Currency must be
either:
(a) a minimum of the Equivalent Amount of (Pounds)5,000,000 and
an integral multiple of the Equivalent Amount of
(Pounds)1,000,000; or
(b) the Equivalent Amount of the uncancelled and undrawn amount
of Facility B.
(iii) The Advance Date of a Facility B Advance must be a Business Day
on or after the Amendment Date and at least one month before the
Facility Termination Date.
(iv) The Interest Period of each Facility B Advance must comply with
Clause 8.
(v) Clause 6.2(C) applies.
(vi) If the Facility B Advance is not to be in sterling, Clause 7
applies.
(C) FACILITY A ADVANCES AND FACILITY B ADVANCES: There must be no more
than ten Advances outstanding at any one time. For this purpose, as at
any Advance Date:
(i) any Facility B Advance due to be repaid on any Advance Date will
be treated as having been repaid on that Advance Date;
(ii) any Facility A Advance due to be repaid on any Advance Date
before the Conversion Date will be treated as having been repaid
on that Advance Date; and
(iii) any other Facility A Advance or Facility B Advance due to be
made on the Advance Date will be treated as having been made.
There must be no more than three Converted Facility A Advances
outstanding after the Conversion Date.
(D) EURO UNITS: Each Advance in euro will be recorded as denominated in
euro units. This does not affect the denomination of any payment
relating to that Advance (subject to Clause 12.3).
(E) SUBSTITUTION OF ALTERNATIVE MINIMUM AND MULTIPLE AMOUNTS
This paragraph applies if the United Kingdom becomes a participating
member state and adopts the euro as its currency. In this case, the
Agent may determine round amounts in euro to be substituted for
amounts in sterling to which reference is made in this Agreement. The
substituted amounts need not be a direct equivalent of the sterling
amounts. In this case, the Agent agrees to notify each substituted
amount to the Borrower and the Lenders. Upon this notification, this
Agreement will be deemed amended accordingly. The substituted amounts
will take effect on the later of the date specified in the notice, the
date not less than 10 Business Days after the date of that notice and
the date on which the United Kingdom so becomes a participating member
state. The substituted amounts will apply to Advances made on or
after that effective date.
6.3 NOTICE TO THE LENDERS
The Agent agrees to provide promptly details of each notice of borrowing to
each Lender. These details will also include the amount of the Lender's
participation in the Advance.
6.4 CONDITIONS TO BORROWING
The Lenders will only be obliged to make an Advance to the Borrower if:
(A) the Facility is available in accordance with Clause 2;
(B) a properly completed and signed notice of borrowing has been received
by the Agent;
(C) the representations in Clause 17.1 (other than, in the case of any
Advance after the first Advance made on or after the Amendment Date,
paragraphs (T) and (U) of Clause 17.1) are true on the Advance Date;
and
(D) there is no outstanding Termination Event or Potential Termination
Event on the Advance Date,
but so that Clause 6.4(D) shall not prevent the rollover of an existing
Advance (without increasing the amount of this Advance) for an Interest
Period of no more than one month at any time when no Termination Event has
occurred and is continuing.
6.5 OBLIGATION TO ADVANCE FUNDS
If the requirements of this Clause are satisfied each Lender agrees to
advance its participation in the Advance to the Borrower. The Advance will
be made on the date specified in the notice of borrowing.
6.6 CONSEQUENCES OF THE ADVANCE NOT BEING MADE
If the notice of borrowing is delivered but no Advance is made the Lenders
may incur losses and expenses as a result. The losses and expenses may
include those incurred in liquidating or otherwise utilising amounts
borrowed by the Lenders to fund the Advance. They may also include the
losses and expenses incurred in terminating commitments relating to the
funding or incurred in hedging open positions resulting from the Advance
not being made. The Borrower agrees to reimburse each Lender for the
amount of these losses and expenses. This sub-clause does not apply if the
Advance is not made by reason of a default of a Lender.
7. CURRENCY OPTION
7.1 REQUEST FOR OPTIONAL CURRENCY
This Clause applies if a notice of borrowing specifies the Optional
Currency. In this case the Advance requested will be made if the Advance
is required to be made under the terms of this Agreement.
7.2 NON-AVAILABILITY OF OPTIONAL CURRENCY
A Lender (an "AFFECTED LENDER") may notify the Agent that it is unable to
make its participation in an Advance available in the Optional Currency for
the requested Interest Period. If a Lender makes this notification it will
set out brief details of the reasons why it is unable to make its
participation available in this notice. Each of the following applies if
this notice is received by the Agent by 2.00 p.m. on the third Business Day
before the day the Advance is due to be made:
(A) The Affected Lender will not be obliged to make its participation in
the Advance available in the Optional Currency. Instead the Affected
Lender agrees to make the participation available in sterling.
(B) The amount the Affected Lender is required to advance will be the
Original Sterling Amount of the participation it would otherwise have
been required to make available in the Optional Currency.
(C) The Agent agrees to notify the Borrower and the other Lenders of the
receipt of the notice from the Affected Lender. This notification will
be made by 5.00 p.m. on the third Business Day before the day the
Advance is due to be made.
7.3 IMPRACTICALITY OF DRAWING IN OPTIONAL CURRENCY
An Advance which was to have been made in the Optional Currency will not be
required to be made if all the following are true:
(A) An event described in Clause 7.4 occurs.
(B) The Agent notifies the Borrower of this event and states that, as a
result, the Advance cannot be made in the Optional Currency.
(C) The notice from the Agent is received by the Borrower by 9.00 a.m. on
the date the Advance is due to be made.
The Agent agrees to deliver a notice under this sub-clause if it is
instructed by an Instructing Group to do so. If the Agent makes this
notification it will set out brief details of any reasons provided to it by
the Instructing Group when instructing the Agent to give this notice. For
the purposes of this sub-clause an Advance will be treated as being made in
the Optional Currency even if part of it was due to be made in sterling by
virtue of Clause 7.2.
7.4 EVENTS MAKING DRAWING IN OPTIONAL CURRENCY IMPRACTICAL
An event referred to in Clause 7.3 occurs if both:
(A) there are changes in national or international financial, political or
economic conditions or in currency exchange rates or exchange
controls; and
(B) these changes would, in the opinion of the Agent, make it
impracticable for the Advance to be denominated in the Optional
Currency.
8. INTEREST
8.1 INTEREST PERIODS
(A) FACILITY A AND FACILITY B ADVANCES: Each Facility A Advance made
before the Conversion Date and each Facility B Advance will have one
Interest Period only.
(B) POST CONVERSION DATE FACILITY A ADVANCES: Interest shall be calculated
on each Converted Facility A Advance by reference to successive
Interest Periods. The first Interest Period will, unless Clause 9.2
applies, commence on the date on which the Facility A Advance to which
it relates was made and will end on the date selected or determined
under Clause 8.3. Each subsequent Interest Period will commence on the
last day of the preceding Interest Period of this Converted Facility A
Advance. A Converted Facility A Advance may be split into up to three
Converted Facility A Advances in the same currency as the Converted
Facility A Advance or consolidated back into a single Converted
Facility A Advance if the Converted Facility A Advances to be
consolidated are all in the same currency and the resultant
consolidated Facility A Advance is also in this currency. A splitting
or consolidation must take effect on the first day of an Interest
Period for all Converted Facility A Advances affected. No split can be
made unless, after that splitting:
(i) no more than three Converted Facility A Advances in total will
be outstanding; and
(ii) the amount of each Converted Facility A Advance is
(Pounds)20,000,000 (or the Equivalent Amount in the Optional
Currency) or more.
8.2 DURATION OF INTEREST PERIODS
Each Interest Period must be a period of 1, 2, 3 or 6 months or any other
period not exceeding 12 months which the Agent (acting on the instructions
of all the Lenders) and the Borrower may agree in writing.
8.3 SELECTION OF INTEREST PERIODS
(A) FACILITY A ADVANCES: The Borrower may select an Interest Period for a
Facility A Advance made before the Conversion Date in its notice of
borrowing. After the Conversion Date the Borrower must notify the
Agent of the duration of each Interest Period by no later than 10.00
a.m. on the third Business Day before the last day of each previous
Interest Period.
(B) FACILITY B ADVANCES: The Borrower may select an Interest Period for
each Facility B Advance in its notice of borrowing.
(C) FAILURE TO SELECT: When the Borrower does not select an Interest
Period in accordance with paragraph (B) or paragraph (A), the Interest
Period will be three months or such other period as will comply with
Clause 8.4.
8.4 ADJUSTMENT OF INTEREST PERIOD
(A) An Interest Period will end on the last Business Day of a calendar
month if it is for a number of complete months and either:
(i) it commenced on the last Business Day of a calendar month; or
(ii) it commenced on a day for which there is no corresponding day in
the month in which it is due to end.
(B) This paragraph applies when an Interest Period for a Converted
Facility A Advance would otherwise begin before but end after a
Facility A Repayment Date. In this case that Interest Period will end
on that Facility A Repayment Date. This paragraph will not apply,
however, in the case of a Converted Facility A Advance where there are
other Converted Facility A Advances with Interest Periods ending on
that Facility A Repayment Date which, in aggregate, equal or exceed
the amount due to be repaid on that Facility A Repayment Date.
(C) Any Interest Period which would otherwise begin before but end after
the Facility Termination Date will, unless paragraph (D) applies, end
on the Facility Termination Date.
(D) Any Interest Period which would otherwise end on a day which is not a
Business Day will be extended to the next Business Day, unless that
day is in another calendar month. Where it is in another calendar
month the Interest Period will end on the preceding Business Day.
8.5 RATE OF INTEREST
The rate of interest applicable during an Interest Period will be:
(A) in respect of an Advance in sterling, a rate per annum equal to LIBOR
for that Advance for that Interest Period plus the Applicable Margin
plus the Costs Rate; and
(B) in respect of an Advance in euros, a rate per annum equal to EURIBOR
for that Advance for that Interest Period plus the Applicable Margin..
8.6 PAYMENT OF INTEREST
(A) The Borrower agrees to pay interest accrued on the outstanding amount
of each Advance in arrear on the last day of each Interest Period in
respect of that Advance. Where an Interest Period is longer than 6
months the Borrower also agrees to pay interest on the day 6 months
after the start of that Interest Period.
(B) The Borrower may give notice to the Agent that it wishes to pay all
accrued interest on the Loan on the last Business Day of its financial
year. This notice must be received by the Agent no later than five
Business Days before that day. In this case the Borrower agrees to pay
that amount of interest on that date. Any amount received by the Agent
will be paid to the Lenders. Payments which would otherwise have been
due under paragraph (A) will be adjusted accordingly.
8.7 NOTIFICATION OF INTEREST RATE
The Agent agrees to notify the Borrower and the Lenders promptly of the
determination of a rate of interest under this Agreement.
8.8 MARGIN ON ADVANCES
(A) COMPUTATION OF MARGIN: The Applicable Margin will be computed in
accordance with this sub-clause.
(B) ANNUALISED DEBT COVERAGE: The Agent agrees to compute the annualised
Debt Coverage as at the end of each Quarter. For this purpose it will
use the figures for Financial Indebtedness and EBITDA contained in the
certificate of the Certifying Financial Officer delivered pursuant to
Clause 18.1(g). In order to work out the annualised Debt Coverage the
Agent will use the following formula:
ADC = the ratio of FI: (EBITDA x 4)
where:
ADC = annualised Debt Coverage
EBITDA = EBITDA for the most recent Quarter
FI = Financial Indebtedness as at the end of the most recent Quarter.
(C) INITIAL APPLICABLE MARGIN: Unless paragraph (F) applies, the
Applicable Margin will be 1.35% for the first six months after the
Amendment Date (the "INITIAL MARGIN PERIOD"). However, the Applicable
Margin during the Initial Margin Period will be 1.50%:
(i) if the certificate of the Certifying Financial Officer delivered
under paragraph 18 of Schedule 3; or
(ii) if, and with effect from the date on which, a certificate of the
Certifying Financial Officer delivered pursuant to Clause
18.1(g) during the Initial Margin Period,
results in the Agent computing annualised Debt Coverage calculated in
accordance with paragraph (B) of greater than or equal to 5:1.
(D) AMOUNT OF THE APPLICABLE MARGIN: The Applicable Margin computed for
the purposes of this sub-clause for:
(i) Interest Periods which are current at the end of the Initial
Margin Period shall be determined by the Agent with effect from
the first day after the end of the Initial Margin Period; and
(ii) Interest Periods starting after the end of the Initial Margin
Period shall be determined by the Agent with effect from the
first day of that Interest Period
in each case, in accordance with the most recent certificate delivered
by the Certifying Financial Officer and on the basis of the following
table:
(1) (2)
ANNUALISED DEBT COVERAGE MARGIN
Greater than or equal to 5:1 1.50%
Less than 5:1 and greater than
or equal to 4.5:1 1.35%
Less than 4.5:1 and greater
than or equal to 4:1 1.15%
Less than 4:1 and greater than
or equal to 3:1 1.00%
Less than 3:1 and greater than
or equal to 2:1 0.80%
Less than 2:1 0.625%
The Agent will determine the margin in column (2) of the table in
respect of the annualised Debt Coverage (computed in accordance with
paragraph (B)) as at the end of the most recent Quarter. The margin
so determined will, however, not apply if paragraph (F) applies.
(E) APPLICABLE MARGIN: The adjustment of the Applicable Margin to reflect
a change in annualised Debt Coverage as a result of the delivery to
the Agent of the certificate of the Certifying Financial Officer
pursuant to Clause 18.1(g) will take effect after that delivery as
follows:
(i) in relation to each Facility A Advance on or before the
Conversion Date, from the first day of each Facility A Advance
after delivery of the certificate;
(ii) in relation to each Converted Facility A Advance, from the first
day of the next Interest Period applicable to that Converted
Facility A Advance; or
(iii) in relation to each Facility B Advance, from the first day of
each Facility B Advance after delivery of the certificate.
(F) TERMINATION EVENT OR POTENTIAL TERMINATION EVENT: The Applicable
Margin will be 1.50% in the event that any of the following occur:
(i) a Termination Event;
(ii) a Potential Termination Event under Clause 21.1(A); or
(iii) the failure to deliver the certificate pursuant to Clause
18.1(g) by the latest date prescribed.
This adjustment will take effect immediately upon the date of the
occurrence any of the events set out in sub-paragraphs (i), (ii) or
(iii) (as determined by the Agent) and will last for so long (only) as
the relevant event subsists unremedied or unwaived.
9. REPAYMENT
9.1 REPAYMENT OF FACILITY A ADVANCES BEFORE THE CONVERSION DATE
(A) The Borrower agrees to repay each Facility A Advance made to it before
the Conversion Date on the last day of the Interest Period for that
Facility A Advance where the last day of that Interest Period falls
before the Conversion Date. The Borrower shall repay that Facility A
Advance in the currency it was made unless paragraph (B) applies.
(B) Where on any date on which a Facility A Advance is to be repaid (the
"OLD ADVANCE") the Borrower borrows a further Facility A Advance (the
"NEW ADVANCE") and either:
(i) the New Advance and the Old Advance are both in sterling or the
Optional Currency; or
(ii) the Old Advance is in the Optional Currency and the New Advance
is in sterling or the Old Advance is in sterling and the New
Advance is in the Optional Currency,
then the Agent shall, unless the Borrower requests otherwise, apply
the New Advance, subject to paragraph (C), in or towards repayment of
the Old Advance. This will be treated as satisfying pro tanto the
obligations of the Borrower to repay the Old Advance and of the
Lenders to make the New Advance.
(C) If paragraph (B)(ii) applies, the Agent shall:
(i) apply the amount of the New Advance in or towards the purchase
of an amount in the currency of the Old Advance; and
(ii) use the amount it purchases in or towards satisfaction of the
Borrower's obligations to repay the Old Advance in the currency
in which it is outstanding.
If the amount purchased by the Agent under sub-paragraph (i) is less
than the amount of the Old Advance, the Agent will promptly notify the
Borrower and the Borrower must, on the day the Old Advance is due to
be repaid, pay an amount to the Agent (in the currency in which the
Old Advance is outstanding) equal to the difference.
If any part of the amount paid to the Agent by the Lenders in order to
make the New Advance is not needed to purchase the amount required to
be repaid by the Borrower, the Agent will promptly notify the Borrower
and pay the Borrower on the day the New Advance is to be made that
part of that amount (in the currency of the New Advance).
9.2 CONVERSION OF FACILITY A
(A) If any outstanding Facility A Advance is not repaid on the Conversion
Date each Facility A Advance outstanding as at the Conversion Date
will be automatically converted into a Converted Facility A Advance.
However, there must not be any more than three Converted Facility A
Advances outstanding at any time.
(B) In the event that there are more than three Facility A Advances
outstanding as at the Conversion Date, the Agent may consolidate these
Facility A Advances and the Interest Periods relating to them so that
no more than three Converted Facility A Advances are outstanding. If
the Lenders incur losses and expenses as a result of this
consolidation, the Borrower will reimburse each affected Lender for the
losses and expenses that Lender has incurred, or will, incur as a
result. These losses and expenses include those incurred in liquidating
as at the Conversion Date or otherwise utilising amounts borrowed by
the Lender to fund its participation in the Facility A Advances. They
may also include losses and expenses incurred in hedging open positions
resulting from the consolidation of Facility A Advances on the
Conversion Date.
9.3 REPAYMENT OF FACILITY A LOAN AFTER CONVERSION DATE
The Borrower agrees to repay the Facility A Loan after the Conversion Date
in semi-annual instalments on the Facility A Repayment Dates. A repayment
may be made on a Facility A Repayment Date from one or more Converted
Facility A Advances in the currency or currencies in which the relevant
Converted Facility A Advance or Converted Facility A Advances are
denominated. The amount of any repayment in the Optional Currency will be
at its Original Sterling Amount. The amount of each instalment will be
determined on the basis of the following table:
FACILITY A REPAYMENT DATE FALLING ON PERCENTAGE OF FACILITY A LOAN OUTSTANDING AND
NOT REPAID ON THE CONVERSION DATE TO BE REPAID
IN EACH REPAYMENT INSTALMENT
30th June, 2002 10%
31st December, 2002 10%
30th June, 2003 10%
31st December, 2003 10%
30th June, 2004 10%
31st December, 2004 10%
30th June, 2005 10%
31st December, 2005 10%
Seventh anniversary of the Amendment Date 20%
The amount of the final instalment will be the whole of the Facility A Loan
outstanding at that date.
9.4 REPAYMENT OF FACILITY B ADVANCES
(A) The Borrower agrees to repay each Facility B Advance made to it on the
last day of the Interest Period for that Facility B Advance. The
Borrower shall repay that Facility B Advance in the currency it was
made unless paragraph (B) applies.
(B) Where on any date on which a Facility B Advance is to be repaid (the
"OLD ADVANCE") the Borrower borrows a further Facility B Advance (the
"NEW ADVANCE") and either:
(i) the New Advance and the Old Advance are both in sterling or the
Optional Currency; or
(ii) the Old Advance is in the Optional Currency and the New Advance
is in sterling or the Old Advance is in sterling and the New
Advance is in the Optional Currency,
the Agent shall, unless the Borrower requests otherwise, apply the New
Advance, subject to paragraph (C), in or towards repayment of the Old
Advance. This will be treated as satisfying pro tanto the obligations
of the Borrower to repay the Old Advance and of the Lenders to make
the New Advance.
(C) If paragraph (B)(ii) applies, the Agent shall:
(i) apply the amount of the New Advance in or towards the purchase
of an amount in the currency of the Old Advance; and
(ii) use the amount it purchases in or towards satisfaction of the
Borrower's obligations to repay the Old Advance in the currency
in which it is outstanding.
If the amount purchased by the Agent under sub-paragraph (i) is less
than the amount of the Old Advance, the Agent will promptly notify the
Borrower and the Borrower must, on the day the Old Advance is due to
be repaid, pay an amount to the Agent (in the currency in which the
Old Advance is outstanding) equal to the difference.
If any part of the amount paid to the Agent by the Lenders in order to
make the New Advance is not needed to purchase the amount required to
be repaid by the Borrower, the Agent will promptly notify the Borrower
and pay the Borrower on the day the New Advance is to be made that
part of that amount (in the currency of the New Advance).
9.5 ADJUSTMENT FOR CURRENCY FLUCTUATIONS
(A) If a Converted Facility A Advance is to be outstanding in the Optional
Currency during two successive Interest Periods, the Agent will
calculate the amount of that Converted Facility A Advance in the
Optional Currency for the second of those Interest Periods. It will do
this by calculating the amount of Optional Currency equal to the
sterling amount of that Converted Facility A Advance at the Agent's
spot rate of exchange three Business Days before the first day of that
second Interest Period) and (subject to paragraph (B) below):
(i) if the amount calculated (after allowing for any repayment of
the Converted Facility A Advance at the end of the first
Interest Period) is less than the existing amount of that
Converted Facility A Advance in the Optional Currency during the
first Interest Period, promptly notify the Borrower and the
Borrower shall pay, on the first day of the second Interest
Period, an amount equal to the difference; or
(ii) if the amount calculated (after allowing for any repayment of
the Converted Facility A Advance at the end of the first
Interest Period) is more than the existing amount of that
Converted Facility A Advance in the Optional Currency during the
first Interest Period, promptly notify
each Lender and each Lender shall pay, on the first day of the
second Interest Period, its participation in an amount equal to
the difference.
(B) If the calculation made by the Agent under paragraph (A) above shows
that the amount of the Converted Facility A Advance in the Optional
Currency has increased or decreased by less than five per cent.
compared to its Equivalent Amount (taken as at the first date of the
first of these Interest Periods), no notification shall be made by the
Agent and no payment shall be required under paragraph (A) above.
10. PREPAYMENT
10.1 OPTIONAL PREPAYMENT
The Borrower may give notice that it will repay the whole or part of the
Loan on any day prior to the Facility Termination Date. Clause 11.7 applies
to any repayment under this sub-clause. This notice must state:
(A) the date of prepayment which will be at least five Business Days after
the notice is received by the Agent;
(B) whether the repayment is out of a Facility A Advance (whether before
or after the Conversion Date) or a Facility B Advance and specifying
which Facility A Advance or Facility B Advance is affected; and
(C) the amount to be prepaid which will be a minimum of (Pounds)5,000,000
and an integral multiple of (Pounds)1,000,000 in respect of any
Facility or the whole of the amount outstanding under that Facility.
The Borrower agrees to repay the Loan in accordance with its notice. A
prepayment of the Facility A Loan after the Conversion Date will reduce the
repayment instalments under Clause 9 starting with the next succeeding
instalment and working forwards, but so that:
(i) no more than two repayment instalments; and
(ii) no instalment falling due more than 18 months after the date of
prepayment,
will be reduced in this way. That amount (if any) of the prepayment which
is not applied in accordance with the preceding sentence (the "RESIDUAL
AMOUNT") will be applied in reducing all the remaining repayment
instalments under the Facility A Loan. In this case each remaining
repayment instalment will be reduced by an amount calculated by dividing
the residual amount by the number of remaining repayment instalments.
Where any prepayment amount in respect of a particular remaining repayment
instalment reduces that remaining repayment instalment to zero the balance
of that amount will be re-applied to the other remaining repayment
instalments as if it were a residual amount.
10.2 MANDATORY PREPAYMENT ON DISPOSALS
(A) OBLIGATION TO PREPAY: The Borrower agrees to prepay the Loan in
accordance with this sub-clause.
(B) CIRCUMSTANCES IN WHICH OBLIGATION TO PREPAY ARISES: The Borrower will
be obliged to make a prepayment under this sub-clause in the following
circumstance:
(i) In the case of Facility A,
(a) the Total Facility A Commitments are cancelled (in whole or
in part) under Clause 5.3; and
(b) as a result of that cancellation (or otherwise), the
Facility A Loan would otherwise exceed the Total Facility A
Commitments following the cancellation,
(ii) In the case of Facility B,
(a) the Total Facility B Commitments are cancelled (in whole or
in part) under Clause 5.3; and
(b) as a result of that cancellation (or otherwise), the
Facility B Loan would otherwise exceed the Total Facility B
Commitments following the cancellation.
(C) AMOUNT OF MANDATORY PREPAYMENT: The amount the Borrower is obliged to
repay under this sub-clause will be:
(i) the a mount by which the Facility A Loan would exceed the Total
Facility A Commitments as described in Clause 10.2(B)(i)(b); and
(ii) the amount by which the Facility B Loan would exceed the Total
Facility B Commitments as described in Clause 10.2(B)(ii)(b).
The amount required to be repaid under this sub-clause on any occasion
may be less than (Pounds)5,000,000. In this case the amount which
would otherwise be due to be repaid will be reserved, but not repaid.
On the next occasion an amount becomes repayable under this sub-clause
the amount reserved will be added to that amount and the aggregate
will be repayable if it exceeds (Pounds)5,000,000. If it does not
exceed (Pounds)5,000,000 the aggregate amount will be reserved and the
previous sentence will apply to this aggregate reserved amount. The
Borrower may elect to repay any amount which would otherwise be
reserved under this paragraph. In this case it will repay that amount
(and any amount previously reserved and not repaid under this
paragraph) in accordance with paragraph (E) and that amount will not
be reserved.
(D) TIMING OF MANDATORY PREPAYMENT: Subject to paragraph (E), the amount
repayable under this sub-clause will become due for repayment on the
date the applicable cancellation occurs under Clause 5.3(D). Clause
11.7 applies to any repayment under this sub-clause.
(E) BREAK COSTS: The Borrower may certify to the Agent that a repayment
required under this sub-clause:
(i) is due on a date other than the last day of the Interest Period
applicable to the amount being repaid; or
(ii) would cause it to incur broken funding costs in respect of one
or more of the Hedging Contracts.
The Borrower's obligation to make a repayment under this sub-clause
will be deferred until the last day of the Interest Period applicable
to the amount being repaid. This deferral will only apply, however,
if the Borrower deposits in the Charged Account an amount equal to the
amount which it would otherwise have been obliged to repay (save to
the extent the prepayment obligation will be discharged by an amount
already standing to the credit of the Charged Account). This deposit
must be made on or before the date the repayment would otherwise have
been due.
(F) APPLICATION OF PREPAYMENT: A prepayment of the Facility A Loan under
this sub-clause after the Conversion Date will reduce each outstanding
repayment instalment under Clause 9 by an amount calculated by
dividing the amount to be prepaid by the number of remaining repayment
instalments applicable to the Facility A Loan. Where any prepayment
amount in respect of a particular remaining repayment instalment
reduces that remaining repayment instalment to zero the balance of
that prepayment amount shall be re-applied to the other remaining
repayment instalments in accordance with the preceding sentence.
10.3 MANDATORY PREPAYMENT OF FACILITY A LOAN ON EXCESS CASH FLOW
(A) OBLIGATION TO PREPAY: The Borrower agrees to prepay the Facility A
Loan in accordance with this sub-clause.
(B) CIRCUMSTANCES IN WHICH OBLIGATION TO PREPAY ARISES: The Borrower will
be obliged to make a prepayment under this sub-clause in the event
that, after the Conversion Date, Excess Cash Flow in respect of a
financial year (including any financial year in which the Facility A
Commitment Availability Termination Date falls) is positive (an
"EXCESS CASH FLOW EVENT"). The requirement to make a prepayment under
this sub-clause will no longer apply after the date on which
annualised Debt Coverage (computed in accordance with Clause 8.8(B))
is below 3:1 for two successive Quarters and for so long as the
annualised Debt Coverage remains at no more than 3:1.
(C) AMOUNT OF MANDATORY PREPAYMENT: The amount the Borrower is obliged to
repay under this sub-clause will be half the amount of the positive
Excess Cash Flow described in Clause 10.3 (B).
The amount required to be repaid under this sub-clause on any occasion
may be less than (Pounds)5,000,000. In this case the amount which
would otherwise be due to be repaid will be reserved, but not repaid.
On the next occasion an amount becomes repayable under this sub-clause
the amount reserved will be added to that amount and the aggregate
will be repayable if it exceeds (Pounds)5,000,000. If it does not
exceed (Pounds)5,000,000 the aggregate amount will be reserved and the
previous sentence will apply to this aggregate reserved amount. The
Borrower may elect to repay any amount which would otherwise be
reserved under this paragraph. In this case it will repay that amount
(and any amount previously reserved and not repaid under this
paragraph) in accordance with paragraph (D) and that amount will not
be reserved.
(D) TIMING OF MANDATORY PREPAYMENT: The amount repayable under this sub-
clause will become due for repayment on the earlier of:
(i) the date 90 days after the date of delivery to the Agent of the
certificate relating to Excess Cash Flow described in Clause
18.1(l) (with the date of delivery of this certificate being the
"EXCESS CASH FLOW CERTIFICATE DELIVERY DATE"); or
(ii) subject to paragraph (E), the first date after the Excess Cash
Flow Certificate Delivery Date which is the last day of an
Interest Period in respect of a Facility A Advance which is in
an amount equal to or greater than the amount due for repayment
under this sub-clause.
Clause 11.7 applies to any repayment under this sub-clause.
(E) BREAK COSTS: The Borrower may certify to the Agent that a repayment
required under this sub-clause:
(i) is due on a date other than the last day of the Interest Period
applicable to the amount being repaid; or
(ii) would cause it to incur broken funding costs in respect of one
or more of the Hedging Contracts.
The Borrower's obligation to make a repayment under this sub-clause
will be deferred until the last day of the Interest Period applicable
to the amount being repaid. This deferral will only apply, however,
if the Borrower deposits in the Charged Account an amount equal to the
amount which it would otherwise have been obliged to repay (save to
the extent the prepayment obligation will be discharged by an amount
already standing to the credit of the Charged Account). This deposit
must be made on or before the date the repayment would otherwise have
been due.
(F) APPLICATION OF PREPAYMENT: A prepayment of the Facility A Loan under
this sub-clause will reduce each outstanding repayment instalment
under Clause 9 by an amount calculated by dividing the amount to be
prepaid by the number of remaining repayment instalments applicable to
the Facility A Loan. Where any prepayment amount in respect of a
particular remaining repayment instalment reduces that remaining
repayment instalment to zero the balance of that prepayment amount
shall be re-applied to the other remaining repayment instalments in
accordance with the preceding sentence.
(G) EXCESS CASH FLOW: In this Agreement "EXCESS CASH FLOW" for any
financial year (the "CURRENT FINANCIAL YEAR") means EBITDA for the
current financial year:
(i) plus all non-cash charges deducted in establishing EBITDA for
the current financial year, unless those non-cash charges are
provisions for cash expenditure due to be made in the next
financial year;
(ii) plus any non-cash charges deducted in establishing EBITDA for
the previous financial year which were provisions for cash
expenditure in the current financial year, but where that cash
expenditure was not made in the current financial year;
(iii) plus the amount of any tax rebate or credit in respect of any
advance corporation tax, mainstream corporation tax or
withholding tax or their equivalent in any relevant jurisdiction
actually received in cash by any member of the Borrower's
Restricted Group during the current financial year;
(iv) minus the Net Disposal Proceeds received during the current
financial year to the extent applied in (or reserved for)
prepayment of the Loan pursuant to Clause 10.2;
(v) minus Net Cash Interest for the current financial year;
(vi) minus all advance corporation tax, mainstream corporation tax
and withholding tax or their equivalent in any relevant
jurisdiction actually paid or falling due for payment during
the current financial year (but excluding any amount paid in
the current financial year which was included in the Excess
Cash Flow computation for a previous financial year because it
fell due in that previous financial year);
(vii) minus the aggregate principal amount of Indebtedness for
Borrowed Money (other than of a revolving nature) falling due
for repayment in the current financial year or prepaid in the
current financial year under Clause 10.1;
(viii) minus:
(a) all capital expenditure made during the current financial
year; less
(b) the amount deducted pursuant to sub-paragraph (ix) in the
Excess Cash Flow calculation made in respect of the
previous financial year less the amount added pursuant to
sub-paragraph (x) in respect of the current financial year;
(ix) minus capital expenditure included in the budget for the
current financial year (and not included in the budget for any
previous financial year) but not spent in the current financial
year, but so that an amount may only be deducted under this
sub-paragraph to the extent that a deposit equal to this amount
is made, specifically for this purpose, into the Charged
Account on or before the date on which the audited financial
statements for the current financial year in respect of the
Borrower's Restricted Group are delivered to the Agent pursuant
to Clause 18.1(b);
(x) plus the amount determined in accordance with the following
formula:
A = D - (CE - B)
where:
A = the amount to be determined under this sub-paragraph
(but if the result of the computation is to produce a
negative number, A will be zero)
D = the amount deducted pursuant to sub-paragraph (ix) in
respect of the previous financial year
CE = capital expenditure in the current financial year
B = the capital expenditure in the budget for the current
financial year (and not included in the budget for any
previous financial year)
but so that if CE - B produces a negative result it will be
treated as zero and so A = D.
10.4 MANDATORY PREPAYMENT OF LOAN ON FLOTATION
(A) OBLIGATION TO PREPAY: The Borrower agrees to prepay the Loan in
accordance with this sub-clause.
(B) CIRCUMSTANCES IN WHICH OBLIGATION TO PREPAY ARISES: The Borrower will
be obliged to make a prepayment under this sub-clause upon the shares
of the Borrower or the Parent or any intermediate Holding Company
between the Borrower and the Parent becoming the subject of an initial
public offering in connection with the application by the relevant
Company for the admission of its shares to listing on any stock
exchange or its shares being made available for the first time for
dealing through any public dealings facility.
(C) AMOUNT OF MANDATORY PREPAYMENT: The amount the Borrower is obliged to
repay under this sub-clause will be the full amount of the Loan.
(D) TIMING OF MANDATORY PREPAYMENT: The amount repayable under this sub-
clause will become due for repayment on the earlier of:
(i) the date of receipt of the sale or issue proceeds by a member of
the Group or any shareholder in any member of the Group; and
(ii) the date of listing becoming effective. Clause 11.7 applies to
any repayment under this sub-clause.
(E) EFFECT OF PREPAYMENT: A prepayment of the Loan under this sub-clause
will reduce the Total Facility A Commitments and Total Facility B
Commitments to zero.
10.5 PREPAYMENT UNDER CLAUSE 11
A prepayment of a Lender's participation in the Facility A Loan after the
Conversion Date under Clause 11.1(B), 11.2(D), 11.3(D) or 11.4(E) will
reduce each outstanding repayment instalment under Clause 9 proportionately
to that Lender's participation in the Facility A Loan.
10.6 NO OTHER PREPAYMENT
The Borrower may not repay the Loan early except in the manner permitted or
required by this Agreement.
10.7 NO RE-BORROWING
No amount of the Facility A Loan which is repaid after the Conversion Date
may be re-borrowed.
PART IV: CHANGES OF CIRCUMSTANCES AND PAYMENTS
11. CHANGES OF CIRCUMSTANCES
11.1 ILLEGALITY
(A) NOTICE: Each Lender may notify the Borrower if it has reasonable cause
to believe it is or will be acting illegally in relation to the
Facilities. The illegality may relate to the performance of the
Lender's obligations, the maintenance of the Facilities or the
Lender's funding arrangements. Each Lender confirms it is not acting
illegally in relation to the Facilities on the Amendment Date.
(B) CANCELLATION AND PREPAYMENT: If a Lender delivers a notice of
illegality the Available Commitment of that Lender will be cancelled
on the date of that notice. If the Lender certifies that, because of a
legal requirement applicable to the Lender, the participation of that
Lender in the Loan must be repaid before the last day of any
applicable Interest Period the Borrower agrees to repay the
participation on the earlier date specified by the Lender. Clause 11.7
applies to any cancellation or repayment under this sub-clause.
11.2 INCREASED COSTS
(A) TYPES OF INCREASED COSTS: This sub-clause applies where all of (i),
(ii) and (iii) are true:
(i) Either:
(a) there is a change in a legal requirement applicable to a
Lender Group Company or in any other requirement with which
it is accustomed to comply, or a change in its
interpretation or application; or
(b) a Lender Group Company complies with a direction or request
of an authority with whose directions or requests it is
accustomed to comply.
(ii) As a result, any of the following occurs:
(a) a Lender Group Company incurs an expense;
(b) a Lender Group Company's effective return from the
Facilities or on its overall capital is reduced;
(c) any amount payable to a Lender Group Company is reduced; or
(d) a Lender Group Company does not recover an amount which
would otherwise have been paid to it.
No account will be taken of tax on the overall net income
(including overall net profit or gains) of a Lender, or a Lender
Group Company, in the country in which it has its principal
office or the office through which it is acting for the purposes
of this Agreement. Any loss, reduction or expense wholly
reflected in the Costs Rate, or which is recoverable under Clause
4.8 or Clause 11.4 (or would have been so recoverable but for
Clause 11.5) will also not be taken into account.
(iii) The losses, reductions and expenses arising as a result are
wholly or partly attributable to the Lender's participation in
the Facilities or the arrangements made by a Lender in funding
its participation in the Facilities.
(B) NOTICE: Each Lender may notify the Borrower if it becomes aware that
this sub-clause applies. This notice will contain reasonable detail of
the circumstances which have caused this sub-clause to apply.
(C) PAYMENT OF ADDITIONAL AMOUNTS: The Borrower agrees to reimburse each
Lender for the losses, reductions, expenses and unrecovered amounts
described in paragraph (A).
(D) PREPAYMENT AND CANCELLATION: If a Lender delivers a notice under
paragraph (B):
(i) the Borrower may deliver to that Lender a notice of prepayment.
The Borrower agrees to prepay the participation of that Lender
in the Loan five Business Days after the Lender receives this
notice (or on any later date or dates specified in the notice).
Clause 11.7 applies to this prepayment; and/or
(ii) the Borrower may deliver to that Lender a notice of
cancellation. That Lender's Available Facility A Commitment and
Available Facility B Commitment will be reduced to zero on the
date of delivery of that notice.
(E) BASLE EXCEPTION: Paragraph (C) will not oblige the Borrower to
compensate any Lender in respect of itself or any other Lender Group
Company for any losses, reductions and expenses described in paragraph
(A)(ii) which result from the implementation, as at the Amendment
Date, of the matters set out in the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital
Standards" (the "BASLE REPORT"), the Directive of the Council of the
European Communities on a Solvency Ratio for Credit Institutions
(89/647/EEC of 18th December, 1989) (the "SOLVENCY DIRECTIVE") or the
Directive of the Council of the European Communities on Own Funds of
Credit Institutions (89/299/EEC of 17th April, 1989) (the "OWN FUNDS
DIRECTIVE") in each case as amended prior to the Amendment Date. This
exception will not apply if the losses, reductions and expenses
described in paragraph (A)(ii) result from any change after the
Amendment Date in, or in the interpretation or application of, the
Basle Report, the Solvency Directive or the Own Funds Directive.
11.3 MARKET DISRUPTION
(A) NATURE OF MARKET DISRUPTION: This sub-clause applies if any of (i),
(ii), or (iii) are true:
(i) Lenders with Available Commitments exceeding 35% of the
aggregate Available Commitments, or with participations
exceeding 35% of the Loan, notify the Agent that they believe
that LIBOR or, as the case may be, EURIBOR would not reflect
fairly the cost to them of funding an amount outstanding under
this Agreement. For the purpose of making this computation, the
Agent will disregard a notice from a Lender in circumstances
where the Borrower has satisfied the Agent (supported
by any evidence that the Agent may reasonably request) that the
only reason why LIBOR or, as the case may be, EURIBOR would not
reflect fairly the cost to that Lender of funding its
participation in an Advance is a deterioration in that Lender's
credit standing.
(ii) LIBOR or, as the case may be, EURIBOR cannot be determined
because no rate appears on the Screen for the relevant currency
for the necessary period and fewer than two Reference Banks
provide quotations.
(iii) Lenders with Available Commitments exceeding 35% of the
aggregate Available Commitments, or with participations
exceeding 35% of the Loan, notify the Agent that they are unable
to fund their participations in the Loan in the London inter-
bank market or, as the case may be, European inter-bank market.
(B) NOTICE: The Agent agrees to notify the Borrower and the
Lenders if this sub-clause applies.
(C) ALTERNATIVE INTEREST RATE ARRANGEMENTS: If the Agent delivers a notice
of market disruption each of the following applies:
(i) The means of determining the rates of interest applicable to the
Advance or Advances affected (the "AFFECTED ADVANCE") will be
suspended. Instead the Borrower agrees to pay interest to the
Lenders on the Affected Advance in the manner requested by the
Agent in accordance with this clause. A request by the Agent may
specify periods to be used for the computation of interest. It
must also specify the rate of interest to apply for a period.
This rate will be the rate determined by the Agent to reflect
the cost to each Lender of funding the Affected Advance for the
period plus the Applicable Margin plus (in the case of Advances
in sterling) the Costs Rate. In order to assist the Agent in
this determination each Lender agrees to provide to the Agent
any information which the Agent may request. If this information
is received by the Agent within any time period specified by the
Agent it will be taken into account by the Agent in making its
determination.
(ii) The Borrower and the Agent will negotiate the terms of an
alternative arrangement for determining a rate of interest for
the Affected Advance. The negotiations will be carried on in
good faith. Neither party is bound to continue the negotiations
after the date 30 days after the Borrower receives the Agent's
notice. If agreement is reached and if it is approved by all the
Lenders the rate of interest will be determined in accordance
with the agreement. Sub-paragraph (i) will not apply to the
extent that it is expressly excluded by that agreement.
(iii) If the circumstances described in paragraph (A) cease to apply
the Agent will notify the Borrower and the Lenders. The notice
will specify the transitional arrangements proposed by the Agent
which as far as possible will be in accordance with the normal
interest rate fixing provisions of this Agreement. The Borrower
agrees to pay interest to the Lenders on the Affected Advance in
the manner described in this notice unless a different
arrangement is agreed by the Agent and the Borrower and approved
by all the Lenders. In this case the Borrower agrees to pay
interest to the Lenders in the manner agreed.
(D) PREPAYMENT: If this sub-clause applies, the Borrower may deliver a
notice of prepayment to the Agent. The Borrower agrees to prepay the
Loan or, at the Borrower's election, the Affected Advance or Affected
Advances five Business Days after the Agent receives this notice (or
on any later date or dates specified in the notice). Clause 11.7
applies to this prepayment.
(E) WITHDRAWAL: If this sub-clause applies, the Borrower may notify the
Agent before 12.30 p.m. on the Advance Date relating to the Affected
Advance that it wishes to withdraw the notice of borrowing relating to
the Affected Advance. In this case that notice of borrowing will be
treated as having not been made. Clause 6.6 will not apply in these
circumstances.
11.4 WITHHOLDINGS
(A) WITHHOLDINGS AND DEDUCTIONS: This sub-clause applies if the Borrower,
a Guarantor or the Agent is required by law, or by any requirement of
a taxing authority with which it is obliged to comply, to make a
payment under this Agreement net of a withholding or deduction.
(B) NOTICE: The Borrower agrees to notify the Agent if it becomes aware
that this sub-clause applies.
(C) GROSSING UP: The Borrower and each Guarantor agrees to increase the
amount of any payment from which it has to withhold or deduct any sum.
This increase will ensure that the person entitled to the payment will
receive, after that sum has been deducted or withheld, the amount it
would have received had no sum had to be withheld or deducted.
(D) PAYMENT OF TAX: The Borrower and each Guarantor will pay to the
appropriate authority all amounts withheld or deducted by it and
certify to the Agent's reasonable satisfaction that it has withheld or
deducted those sums and paid them to that authority. If a receipt or
other evidence of payment can be obtained from that authority without
incurring unreasonable cost or expense, the Borrower or that Guarantor
agrees to deliver this to the Agent as soon as reasonably practicable.
(E) PREPAYMENT AND CANCELLATION: If this clause applies to payments by the
Borrower:
(i) the Borrower may deliver to the Agent a notice of prepayment.
This notice may relate to any part of the Loan which is subject
(or the interest on which is subject) to the withholding or
deduction. The Borrower agrees to prepay the Loan (or the part
of it which is affected) five Business Days after the Agent
receives this notice (or on any later date or dates specified in
the notice). Clause 11.7 applies to this prepayment; and/or
(ii) the Borrower may deliver to the Agent a notice of cancellation.
This notice may relate to any part of the Total Facility A
Commitments or Total Facility B Commitments which, if drawn,
would be subject (or the interest on which would be subject) to
the withholding or deduction. That part of the Total Facility A
Commitments or Total Facility B Commitments will be reduced to
zero on the date of delivery of that notice.
(F) REFUND OF TAX CREDITS: If the Borrower or a Guarantor makes an
increased payment under Clause 11.4(C) (a "TAX PAYMENT") the relevant
Lender or, as the case may be, the Agent agrees to notify the Borrower
if it has obtained a refund of tax or obtained and used a credit
against tax on its overall net income (a "TAX CREDIT") which that
Lender or, as the case may be, the Agent is able to identify as
attributable to that Tax Payment. To the extent that it can in its
absolute discretion without any adverse consequences for it, that
Lender or, as the case may be, the Agent shall reimburse the Borrower
or, as the case may be, that Guarantor such amount as the Lender or,
as the case may be, the Agent determines to be the proportion of that
Tax Credit as will leave the Lender or, as the case may be, the Agent
(after that reimbursement) in no better or worse position in respect
of its tax liabilities than it would have been in if no Tax Payment
had been required. No Lender or, as the case may be, Agent shall be
obliged to disclose any information regarding its tax affairs and
computations, and this sub-clause does not affect the right of any
Lender or, as the case may be, Agent to arrange its tax affairs as it
thinks fit.
11.5 INLAND REVENUE TREATMENT OF THE LENDERS
The Borrower and each Guarantor will not be required to pay increased
amounts under Clause 11.4 in respect of a payment of interest to a Lender
in either of the following cases:
(A) At the date the principal amount on which that interest accrued was
advanced that Lender was not a bank for the purposes of section 349(3)
of the Income and Corporation Taxes Xxx 0000.
(B) The person beneficially entitled to that payment of interest at the
time it is paid is not within the charge to United Kingdom corporation
tax in respect of that interest.
This sub-clause only applies so far as a withholding or deduction is due to
the circumstances described in paragraph (A) or (B) above. It does not
apply where the circumstances described in paragraph (A) or (B) above arise
as a result of a change in law or concession or a change in the
interpretation or application of law or concession. Each Lender agrees to
notify the Agent if paragraph (A) or (B) above applies.
11.6 CONFIRMATIONS FROM LENDERS
The Borrower or the Agent may request a Lender to confirm whether or not
the circumstances described in Clause 11.5(A) or (B) exist. Each Lender
agrees to provide the confirmation requested as soon as reasonably
practicable.
11.7 PREPAYMENT
This sub-clause applies if the Borrower is obliged to repay the Loan or any
part of it under this Clause, Clause 10 or Clause 21.2. In this event the
Borrower agrees to pay on the date repayment is due interest accrued on the
Loan (or the amount to be repaid) up to that date. If the date repayment
is due is not the last day of an Interest Period applicable to the amount
being repaid, the Borrower will reimburse each affected Lender for the
losses and expenses that Lender has incurred, or will incur, as a result.
These losses and expenses may include those incurred in liquidating or
otherwise utilising amounts borrowed by the Lender to fund its
participation in the Loan (or the amount repaid). They may also include
losses and expenses incurred in hedging open positions resulting from the
repayment.
11.8 MITIGATION
This sub-clause does not affect the obligations of the Borrower under the
other sub-clauses of this Clause. If this Clause applies to a Lender or
the Agent, that Lender or the Agent will take all steps reasonably open to
it and, as the case may be, will procure that any Lender Group Company
takes all steps reasonably open to it, to reduce the additional amounts
payable by the Borrower under this Clause or to avoid or reduce the impact
of the circumstances referred to in it. These steps may include the
transfer of the Lender's rights and obligations under this Agreement to
another branch or bank acceptable to the Borrower. The Lender or Lender
Group Company or the Agent will not, however, be obliged to do anything
which in its opinion would or might have an adverse effect on it.
12. PAYMENTS
12.1 METHOD AND TIMING OF PAYMENTS
All payments under this Agreement must be made in immediately available and
freely transferable funds. Each payment must be received by noon on the
due date. Each payment must be for value on the due date.
12.2 CURRENCY OF PAYMENT
Each Advance is to be advanced and repaid in the currency in which it is
denominated. Interest on an Advance is to be paid in the same currency as
the Advance. All other payments are to be made in sterling, unless this
Agreement specifies a different currency.
12.3 PAYMENTS IN EURO
Each payment by the Agent in euro will be made in euro units rather than
NCU, unless the Agent notifies the recipient otherwise. This does not
affect the rights of any party under the EMU legislation or other
applicable law to make euro payments in NCU or receive euro payments
credited to its account in NCU. The Agent will not be liable for any
failure to make payments on their due date arising from any failure in any
cross-border euro payment system. In addition, Clause 22.8(A) applies.
12.4 PAYMENTS THROUGH THE AGENT
(A) NORMAL ARRANGEMENTS: All payments by the Borrower or by a Lender under
this Agreement will be made through the Agent. Each sterling payment
will be made to the account of the Agent with The Royal Bank of
Scotland plc, Correspondent Banking Branch, 0-00 Xxxxx Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, account name Credit Suisse First Boston, account
number 00000000, CHAPS Code 16-52-24. Each euro payment will be made
to the account of the Agent with Citibank N.A., London Branch, account
name Credit Suisse First Boston, London Branch, account number
0000000. The Agent will pay on an amount received as soon as
practicable.
(B) ALTERNATIVE ARRANGEMENTS: If the Agent believes that it is, or will
be, illegal or impossible for it to pay on to a Lender in accordance
with paragraph (A), it agrees to notify the Borrower and that Lender.
In this case the Borrower and that Lender may agree alternative
arrangements for payments to be made to that Lender. Paragraph (A)
will not apply to the extent excluded by those alternative
arrangements. That Lender agrees to provide notice of the
arrangements to the Agent and will notify the Agent of payments in
accordance with Clause 14.1.
(C) APPLICATION OF DEPOSIT PAYMENTS: The Borrower is not required to
make payments in accordance with this sub-clause to the extent
that an amount is debited from the Charged Account in accordance
with Clause 3(D) of the Deposit Agreement and Charge on Cash
Deposits.
12.5 PAYMENTS TO THE BORROWER
Each payment by the Agent to the Borrower will be made to the account of
the Borrower which is notified to the Agent by the Borrower for this
purpose.
12.6 PAYMENTS TO THE LENDERS
Each payment by the Agent to a Lender will be made to the account of that
Lender notified to the Agent for this purpose.
12.7 CHANGE OF ACCOUNT
The Borrower or a Lender may change any of its receiving accounts by not
less than five Business Days' notice to the Agent. The Agent may change
any of its receiving accounts by giving not less than five Business Days'
notice to the Borrower and the Lenders.
12.8 REFUNDING OF PAYMENTS BY THE AGENT
This sub-clause applies if the Agent makes a payment out in the mistaken
belief that it has received or will receive an incoming payment on a
particular day. In this case the person which received the payment from
the Agent agrees to return it. It will also reimburse the Agent for all
losses and expenses incurred by the Agent as a result of funding the
payment. This sub-clause does not affect the rights of the person which
received the payment against the person which failed to make the payment to
the Agent.
12.9 NON-BUSINESS DAYS
If a payment would be due on a non-Business Day the payment obligation will
be deferred until the next Business Day unless that day is in another
calendar month. Where it is in another calendar month that payment
obligation will be brought forward to the previous Business Day. Interest
and commitment fees will be adjusted accordingly.
12.10 PAYMENT IN FULL
All payments by the Borrower will be made in full and without set-off or
counterclaim. No payment will be made net of a withholding or deduction,
unless this is required by law or by any requirement of a taxing authority
with which it is obliged to comply. In this event Clause 11.4 applies.
12.11 SET-OFF
If a Company owes money under this Agreement which is due and payable the
person to whom it is owed may set-off this obligation against any moneys
owed by that person to that Company. The moneys owed by that party may be
in a different currency, arise on a separate transaction or involve another
branch. This sub-clause applies even where amounts owed to that Company
are not due and payable, if there is an outstanding Termination Event or
Potential Termination Event. Where amounts are in different currencies the
person to whom money is owed under this Agreement may
convert amounts into the same currency using the then current exchange
rate. If a Lender sets off an obligation under this Agreement, that Lender
agrees promptly to notify the Company concerned in accordance with Clause
24.3. The notice will provide details of the amount set off.
13. LATE PAYMENT
13.1 DEFAULT INTEREST
The Borrower agrees to pay interest on all amounts unpaid under this
Agreement after their due date for payment. This interest will be computed
by reference to successive periods selected by the Agent. The first of
these periods will start on the due date for payment of the unpaid amount.
The rate of interest applicable during each of these periods will be a rate
per annum equal to 1% plus:
(A) in the case of an amount in sterling, LIBOR for that period plus the
Costs Rate; or
(B) in the case of an amount in euros, EURIBOR for that period,
plus, in either case, the Applicable Margin. This interest will be paid in
arrear on the last day of each of these periods and on the date of payment
of the unpaid amount. This interest will be payable after as well as before
judgment.
13.2 INDEMNITY
If the Borrower fails to make a payment on the due date the Borrower agrees
to reimburse the person entitled to the payment for the losses and expenses
(including loss of profit) that person incurs, or will incur, as a result.
The computation of these losses and expenses will take into account any
amount received under Clause 13.1.
14. SHARING AMONG LENDERS
14.1 NOTICE
If an amount due to a Lender (the "RECIPIENT") under this Agreement is
discharged other than by payment through the Agent the Lender agrees to
notify the Agent and the Borrower in accordance with Clause 24.3. This may
occur because of the exercise of a right of set-off, by virtue of a
combination of accounts or because of a voluntary or involuntary payment by
the Borrower or a Guarantor direct to that Lender. The notification will
provide details of the amount discharged and will be delivered no later
than ten Business Days after the discharge.
14.2 DETERMINATION BY THE AGENT
Where a Lender has issued a notice under Clause 14.1 the Agent will
determine what payments, if any, are due under Clause 14.4. This
determination will be made on the basis of the information contained in all
the notices delivered to the Agent under Clause 14.1. The determination
will be notified to the Borrower and the Lenders.
14.3 LITIGATION
In determining the amount due under Clause 14.4 no account will be taken of
an amount due to a Lender which has declined to participate in legal
proceedings which resulted in
the payment described in Clause 14.1. This only applies if that Lender
could have joined in the proceedings or could have instituted its own
proceedings, but failed to do so.
14.4 PAYMENT TO THE AGENT
The Recipient agrees to pay to the Agent an amount calculated as follows:
P = D (X - Y)
where
P = the amount payable to the Agent
D = the aggregate amount due to the Recipient out of which an amount
has been discharged
X = the fraction of D which has been discharged
Y = the fraction which has been discharged, if any, of the aggregate
amount due to the Lender which has the greatest proportion of
that amount still outstanding.
This amount will be paid no later than five Business Days after receipt of
a notice from the Agent under Clause 14.2.
14.5 OBLIGATIONS OF THE BORROWER AND THE GUARANTORS
Any amount due to the Recipient which would otherwise have been discharged
as described in Clause 14.1 will be treated as not having been discharged
to the extent of an amount which is or will be payable under Clause 14.4 as
a result. Accordingly the Borrower and each Guarantor agree to pay this
amount to the Recipient as if it had not been discharged. This payment is
required to be made whether or not the Agent has issued a determination
under Clause 14.2.
14.6 DISTRIBUTION
The Agent agrees to distribute to the Lenders the amount received by it
under Clause 14.4 as if that amount had been received from the Borrower in
discharge of an amount due under this Agreement. The Borrower will then be
treated as having paid that amount.
14.7 RECOVERY
This sub-clause applies if an amount discharged as described in Clause 14.1
is recovered from, or is required to be repaid by, the Recipient. In this
case each Lender which received the benefit of a payment made under Clause
14.4 agrees to repay to the Recipient the amount it received. Each of
these Lenders will also reimburse the Recipient for any losses or expenses
which the Recipient has incurred in connection with the discharged amount
or its recovery or repayment. The rights and obligations of the parties
shall be restored to the position before any payment became due under
Clause 14.4.
PART V : GUARANTEE AND INDEMNITY
15. GUARANTEE
15.1 GUARANTEE
Each Guarantor guarantees the due and punctual performance of all
obligations of the Borrower (or, as the case may be, each Restricted
Subsidiary) under this Agreement, each Hedging Contract and each Overdraft
Facility. This guarantee is unconditional and irrevocable.
15.2 AGREEMENT TO PAY
Each Guarantor agrees to pay on demand each amount due by the Borrower (or,
as the case may be, each Restricted Subsidiary) which is unpaid. The
demand may be made at any time on or after the due date for payment.
Payment will be made in the same currency as the amount due by the Borrower
(or, as the case may be, each Restricted Subsidiary).
15.3 CONTINUING GUARANTEE
This guarantee is a continuing guarantee. No payment or other settlement
will discharge any Guarantor's obligations until the Borrower's obligations
(or, as the case may be, each Restricted Subsidiary's obligations) have
been discharged in full.
15.4 OTHER GUARANTEES AND SECURITY
This guarantee is in addition to, and independent of, any other guarantee
or security.
15.5 ENFORCEMENT
This guarantee may be enforced before any steps are taken against the
Borrower (or, as the case may be, each Restricted Subsidiary) or any other
Guarantor or under any other guarantee or Security.
15.6 PRESERVATION OF RIGHTS
This guarantee will only be discharged by (i) the making of payment (in the
case of this Agreement, in accordance with Clause 12) in full by the
Borrower (or, as the case may be, the relevant Restricted Subsidiary) or
any of the Guarantors or (ii) the receipt otherwise of payment in full. It
will not be discharged by any other action, omission or fact. Each
Guarantor's obligations will, therefore, not be affected by:
(A) The obligations of the Borrower (or, as the case may be, the relevant
Restricted Subsidiary) being or becoming void, invalid, illegal or
unenforceable.
(B) Any change, waiver or release of the Borrower's (or, as the case may
be, the relevant Restricted Subsidiary's) obligations.
(C) Any concession or time being given to the Borrower (or, as the case
may be, the relevant Restricted Subsidiary).
(D) The winding-up or re-organisation of the Borrower (or, as the case may
be, the relevant Restricted Subsidiary).
(E) Any change in the condition, nature or status of the Borrower (or, as
the case may be, the relevant Restricted Subsidiary).
(F) Any of the above events occurring in relation to another Guarantor or
any other guarantor or provider of Security or its obligations.
(G) Any failure to take, retain or enforce any other guarantee or
Security.
(H) Any circumstances affecting or preventing recovery of amounts due by
the Borrower.
(I) Any other matter which might discharge a Guarantor.
Any receipt from any person other than a Guarantor will reduce the
outstanding balance only to the extent of the amount received.
15.7 REPRESENTATIONS OF A GUARANTOR
Each Guarantor confirms that it does not have the benefit of any Security
in respect of this guarantee or the indemnity in Clause 16.
15.8 COVENANTS OF A GUARANTOR
Each Guarantor agrees as follows:
(A) SECURITY: It will not have the benefit of any Security in respect of
this guarantee or the indemnity in Clause 16.
(B) EXERCISE OF RIGHTS: It will not, for so long as a Termination Event or
Potential Termination Event has occurred and is outstanding:
(i) take the benefit of any right against the Borrower (or, as the
case may be, the relevant Restricted Subsidiary) or any other
person in respect of amounts paid under this guarantee; or
(ii) claim or exercise against the Borrower (or, as the case may be,
the relevant Restricted Subsidiary) any right to any payment
(whether or not connection with this Agreement).
(C) COMPETING PROOF: An Instructing Group may request a Guarantor to
submit a proof for amounts due to it by the Borrower or any other
guarantor. Each Guarantor agrees to submit a proof promptly in
accordance with this request if it is entitled to do so. All amounts
received in respect of this proof will be held by that Guarantor on
trust for the Agent and the Lenders.
The obligations in this sub-clause will cease to have effect when all the
Facilities have ceased to be available and there are no amounts outstanding
under this Agreement.
15.9 SUSPENSE ACCOUNT
Any amount received under this guarantee may be placed on suspense account
(bearing interest at a commercial rate, which interest shall be credited to
the account). Suspense accounts may be held by the Agent or by a Lender.
While the amounts are in the suspense account the Agent or any Lender may
claim and recover amounts from the Borrower (or, as the case may be, the
relevant Restricted Subsidiary), another Guarantor and any other guarantor
as if the amount in the suspense account had not
been received. Amounts may be taken out of a suspense account by the person
holding that account at any time for application against the amounts
outstanding under this Agreement or return to the payer of such amounts.
15.10 DISCHARGE CONDITIONAL
Any settlement with, or discharge of, a Guarantor will be subject to a
condition. This condition is that the settlement or discharge will be set
aside if any prior payment, or any other guarantee or security, is set
aside, invalidated or reduced. In this event each Guarantor agrees to
reimburse each Lender and the Agent for the value of the payment, guarantee
or security which is set aside, invalidated or reduced.
15.11 PRINCIPAL DEBTOR
Each Guarantor agrees to pay any amount which is expressed to be due from
the Borrower (or, as the case may be, the relevant Restricted Subsidiary)
but which is not recoverable from a Guarantor as a guarantor. Any amount
due under this sub-clause will be recoverable from each Guarantor as though
the obligation had been incurred by that Guarantor as sole or principal
debtor, but otherwise on the same terms as the obligation was expressed to
be incurred by the Borrower (or, as the case may be, the relevant
Restricted Subsidiary). This sub-clause is in addition to each Guarantor's
obligations as a guarantor. The payment by the Borrower (or, as the case
may be, the relevant Restricted Subsidiary) or any Guarantor of any amount
payable by virtue of this sub-clause will (subject to Clause 15.10)
discharge pro tanto the obligations on each Guarantor to pay the amounts
expressed to be payable by it under this sub-clause.
16. GUARANTOR'S INDEMNITY
16.1 INDEMNITY
This Clause applies if the Borrower fails to make a payment expressed to be
due under this Agreement on the due date. In this event each Guarantor
agrees to reimburse the person entitled to the payment for the losses and
expenses (including loss of profit) that person incurs, or will incur, as a
result. Each Guarantor also agrees to reimburse each Lender and the Agent
for all losses and expenses arising from any obligations of the Borrower
being or becoming void, invalid, illegal or unenforceable.
16.2 AMOUNT OF LOSS
For the purposes of this Clause a Lender and the Agent will be treated as
having suffered a loss equal to the amount expressed as being due to it by
the Borrower, but which is unpaid (taking into account any amounts paid
under Clause 15). If this treatment is incorrect the Lender or the Agent
will produce evidence of its loss.
PART VI : REPRESENTATIONS, COVENANTS AND TERMINATION EVENTS
17. REPRESENTATIONS
17.1 REPRESENTATIONS
Each Company confirms that each of the following is true as at the
Amendment Date (subject, in the case of Clause 17.1(T), as stated in that
Clause 17.1(T)):
(A) NATURE OF COMPANY: It is a company duly incorporated and validly
existing under the laws of its country of incorporation.
(B) POWERS OF COMPANY: It has power to own its assets and conduct its
business as currently conducted. It also has corporate power to sign
and deliver those of the Financing Documents to which it is a party
(and which it has signed and delivered) and to exercise its rights and
perform its obligations under those of the Financing Documents to
which it is a party.
(C) AUTHORISATIONS: The signature and delivery on its behalf of those of
the Financing Documents to which it is a party (and which it has
signed and delivered) and the exercise of its rights and the
performance of its obligations under the Financing Documents have been
duly authorised by it.
(D) BINDING OBLIGATIONS: This Agreement and the other Financing Documents
to which it is a party have been (or, if executed after the Amendment
Date, will be when executed) duly signed and delivered by it. Its
obligations described in the Financing Documents to which it is a
party are (or, if executed after the Amendment Date, will be when
executed) its valid and binding obligations in accordance with their
terms, subject to the reservations contained in paragraph 8 of the
opinion of Xxxxxxxxx and May (the form of which is set out in Schedule
8) and in any legal opinion delivered under Clause 20.1(R)(i)(c).
(E) LEGALITY AND CONTRAVENTIONS: The signature and delivery on its behalf
of the Financing Documents to which it is a party and the exercise of
its rights and performance of its obligations under such Financing
Documents and the creation of Security by it under the Charges (if
applicable):
(i) are not prohibited by applicable law, regulation or order or by
its constitutional documents;
(ii) do not require any approval, filing, registration or exemption
(other than the perfection of the Security constituted by the
Charges by means of registration at H.M. Land Registry, the Land
Register, the Register of Sasines, Companies House and the Trade
Marks Registry, or as disclosed in any legal opinion delivered
under Clause 20.1(R)(i)(c); and
(iii) are not prohibited by, and do not constitute an event of default
under, and do not result in an obligation to create Security
under, any document or arrangement to which it is a party and
which is material in the context of this Agreement.
(F) RANKING OF OBLIGATIONS: Its obligations under the Financing Documents
are secured by the Charges. The Charges will, when executed (and
subject to the required registrations being made and to any Security
permitted by
Clause 20.1(C)(ii) and (iii)), constitute a first priority security
interest which is valid and enforceable over the assets referred to in
the Charges, subject to the reservations (other than reservation 8(F))
contained in paragraph 8 of the opinion of Xxxxxxxxx and May (the form
of which is set out in Schedule 8) and in any legal opinion delivered
under Clause 20.1(R)(i)(c). Amounts due under this Agreement will, for
security purposes, rank at least equally with amounts due under the
Hedging Contracts and the Overdraft Facilities. No amounts have been
repaid by the Borrower under the Subordinated Loan Agreement or the
Inter-Company Loan Agreement, and no amounts are repayable until all
amounts expressed to be owed under the Financing Documents, the
Hedging Contracts and the Overdraft Facilities have been paid in full
and the Facilities are no longer available.
(G) NO TERMINATION EVENT: No Termination Event or Potential Termination
Event has occurred and is continuing and none will occur as a result
of the exercise of its rights or the performance of its obligations
under the Financing Documents.
(H) ACCOUNTS: The audited financial statements and the consolidated
audited financial statements most recently delivered under Clause 18.1
(including, as at the Amendment Date, those statements most recently
delivered before the Amendment Date under the equivalent of the
provision now set out in Clause 18.1) give a true and fair view of the
results of each Company's operations and the financial position of the
Group taken as a whole, the Borrower's Group taken as a whole and the
Borrower's Restricted Group taken as a whole. These financial
statements were prepared in accordance with Generally Accepted
Accounting Principles consistently applied except to the extent that
the accompanying notes provide a description of a different treatment.
(I) LITIGATION: There exists no litigation which is reasonably likely to
have an unfavorable outcome materially adversely affecting (in the
case of the Borrower) its ability to perform its obligations under the
Financing Documents or (in the case of any other Company) the
Guarantors' ability (taken as a whole) to perform the Guarantors'
obligations under the Financing Documents or, in the case of the
Borrower, its ability to perform its material obligations under each
of the Transmission Agreements.
(J) SECURITY: No Security exists over any of its assets, except as
permitted by Clause 20.1(C).
(K) REPRESENTATIONS IN THE CHARGES: The representations given by it in the
Charges are true as at the time they are made and repeated.
(L) DTT TRANSMISSION AGREEMENTS: The Borrower has complied with the
licences conferred on it to which reference is made in the BBC DTT
Transmission Agreement and the ONDIGITAL DTT Transmission Agreement.
If there is a breach of any of these licences, but that breach is
capable of remedy and that licence has not been terminated or revoked,
there will not be a breach of this paragraph.
Each Guarantor confirms that the following is true:
(M) GUARANTEEING POWERS: It has the power to guarantee the whole of the
sums available under this Agreement and enter into the Charges. The
borrowing of the full amount available under this Agreement does not
contravene or exceed any guaranteeing limitation on it (or its
directors) under its constitutional
documents or any other document to which it is a party and which is
material in the context of this Agreement.
Each of the Borrower and the Parent confirms that each of the following is
true:
(N) BORROWING POWERS: The Borrower has the power to borrow the whole of
the sums available under this Agreement. The borrowing of the full
amount available under this Agreement does not contravene or exceed
any borrowing limitation, and the entering into the Charges does not
contravene any limitation on giving security, on it (or its directors)
under its Memorandum and Articles of Association or any other document
to which it is a party and which is material in the context of this
Agreement.
(O) NO MATERIAL ADVERSE CHANGE:
(i) There has been no change in financial condition of the Borrower
or (taken as a whole) the Guarantors having a material adverse
impact on the Borrowers or (taken as a whole) the Guarantors'
ability to perform its or their payment obligations under the
Financing Documents since the last date as at which each of the
covenants in Clause 19.2 were measured. The assessment of
whether the change in financial condition is material will be
measured against the covenants tested on that date.
(ii) In addition no event or circumstance has occurred and is
continuing affecting the business or operations of the Borrower
and (taken as a whole) the Guarantors and having a material
adverse impact on the Borrower's or (taken as a whole) the
Guarantors' ability to perform its or their payment obligations
under the Financing Documents. The assessment of whether there
has been a material adverse impact will be measured against the
business or operations of the Borrower and (taken as a whole)
the Parent and the Borrower's Group on the Amendment Date.
(P) AGREEMENTS EFFECTIVE: Each of the Shareholders' Agreement, the
Transmission Agreements, the NTL Site Sharing Agreement, the Contract
for Services, the Subordinated Loan Agreement and the Inter-Company
Loan Agreement is in full force and effect, and the Bonds and any
guarantees given by any person in respect of CT Finance's obligations
under the Bonds are binding obligations.
(Q) LICENCES, ETC.: All licences, consents and authorisations necessary
for the Borrower to conduct its business as currently conducted, and
for the members of the Borrower's Restricted Group to conduct the
other material businesses operated by the Borrower's Restricted Group
(taken as a whole) as currently conducted, are in full force and
effect.
(R) BORROWINGS: No member of the Borrower's Restricted Group has any
Indebtedness for Borrowed Money, or has issued any guarantees,
indemnities or other similar assurances, except as permitted under
Clause 20.1(K) or as agreed by the Agent (acting on the instructions
of an Instructing Group).
(S) TRANSMISSION AGREEMENTS REPRESENTATIONS: The representations given by
the Borrower in each of the Transmission Agreements are true in all
material respects as at the time they are made.
(T) INFORMATION MEMORANDUM: As at the date of the Information Memorandum:
(i) the information incorporated in the Information Memorandum is
true and correct in all material respects; and
(ii) no material information has been omitted and the financial
projections contained in the Information Memorandum have been
prepared on a reasonable basis using reasonable assumptions.
In addition, no material adverse change has occurred in relation to
the Borrower and (taken as a whole) the Parent and the Borrower's
Group after the date of issue of the Information Memorandum which
would require the Borrower, acting reasonably, to update the
information contained in the Information Memorandum so as to ensure
that this information remained true and correct in all material
respects and that there were no material omissions or change in the
assumptions used in the preparation of the financial projections in
the Information Memorandum.
The Borrower confirms that the following is true:
(U) FINANCIAL MODEL: The Financial Model has been prepared on a reasonable
basis using reasonable assumptions and the Borrower does not have any
reason to believe that it contains a misstatement material in the
context of this Agreement.
(V) YEAR 2000:
(i) The Year 2000 Programme Report fairly describes in all material
respects (with no material omissions) the investigations and
actions which have been undertaken and performed by or on behalf
of (taken as a whole) the Borrower's Restricted Group prior to
the Amendment Date in relation to: (a) investigations as to
whether its computer systems are able to handle date data
relating to a date on or after 1st January, 2000; and (b) the
actions taken or to be taken which are intended to ensure that
such technology is able to handle such data.
(ii) On the basis of the investigations and actions mentioned in sub-
paragraph (i) it believes that its business critical equipment
and software (including as described in the Year 2000 Programme
Report) and that of (taken as a whole) the Borrower's Restricted
Group will be unaffected by the change in date caused by the
beginning of the new millennium. This statement only applies to
the extent that any disruption caused to the operations of
Borrower or (taken as a whole) those the Borrower's Restricted
Group is reasonably likely to have a material adverse effect on
the Borrower or (taken as a whole) the Borrower's Restricted
Group.
17.2 REPETITION
All of the representations in Clause 17.1 except those in paragraphs (T),
(U) and (V) will be deemed repeated on the making of each Advance and on
the first day of each Interest Period. The representations in paragraphs
(T) and (U) will be deemed repeated on the date of the first Advance on or
after the Amendment Date but not subsequently. The representation in
paragraph (V) will be deemed repeated on the making of each Advance which
falls on or before 31st March, 2000. Where a representation is deemed
repeated this repetition will be with reference to the facts on that day.
17.3 SURVIVAL OF REPRESENTATIONS
Each of the representations made by the Borrower under this Agreement shall
survive the making of each Advance (but are only repeated to the extent
referred to in Clause 17.2).
17.4 LENDER REPRESENTATIONS
Each Lender represents that each of the following is true:
(A) In respect of a payment of interest to that Lender, that Lender was,
at the date the principal amount on which that interest accrued was
advanced, a bank for the purposes of section 349(3) of the Income and
Corporation Taxes Xxx 0000.
(B) In respect of a payment of interest to that Lender, the person
beneficially entitled to that payment of interest at the time it is
paid is within the charge to United Kingdom corporation tax in respect
of that interest.
The representations in this sub-clause do not apply where the
representations would be untrue as a result of a change in law or Inland
Revenue concession or a change in the interpretation or application of law
or Inland Revenue concession.
18. INFORMATION COVENANTS
18.1 PERIODIC REPORTS
Each of the Borrower and the Parent agrees to deliver each of the following
to the Agent as soon as they become available and, in any event, by the
latest date indicated:
DOCUMENT/INFORMATION Latest Date
-------------------- -----------
(a) Annual audited accounts of each 90 days after the end of that
Company including profit and loss financial year
account, balance sheet and, in the case
of the Borrower and the Parent, cash flow
statement
(b) Annual audited consolidated accounts of 90 days after the end of that
the Borrower's Group, the Borrower's financial year
Restricted Group and of the Group,
including profit and loss account, balance
sheet and cash flow statement
(c) Quarterly unaudited management 45 days after the end of each
accounts of each Company certified to be quarter of its financial year
correct by the Certifying Financial Officer,
including profit and loss account, balance
sheet, cash flow statement and
statement of capital expenditure
(d) Quarterly consolidated unaudited 45 days after the end of each
management accounts of the Borrower's quarter of its financial year
Group, the Borrower's Restricted Group
and of the Group certified to be correct
by the Certifying Financial Officer,
including profit and loss account, balance
sheet, cash flow statement and
statement of capital expenditure
(e) Monthly management accounts of each 30 days after the end of each
Company certified to be correct by the calendar month
Certifying Financial Officer, including
profit and loss account, balance sheet,
cash flow statement and statement of
capital expenditure
(f) Monthly consolidated management 30 days after the end of each
accounts of the Borrower's Group, the calendar month
Borrower's Restricted Group and of the
Group certified to be correct by the
Certifying Financial Officer, including
profit and loss account, balance sheet,
cash flow statement and statement of
capital expenditure (distinguishing
between capital expenditure which is
financed from operating income and
capital expenditure which is funded from
new equity or borrowing)
(g) A certificate, signed by the Certifying At the time of delivery of the
Financial Officer stating: Borrower's Group's and
Borrower's Restricted Group's
(i) the amount of Financial quarterly financial statements
Indebtedness on the last day of delivered under paragraph (d)
the Quarter
(ii) EBITDA for that Quarter
(h) Annual budget for the Borrower's Group 60 days after the start of
and the Borrower's Restricted Group each of its financial years
including projected profit and loss
account, balance sheet, cash flow
statement and statement of capital
expenditure (distinguishing between
capital expenditure which is to be
financed from operating income and
capital expenditure which is to be funded
from new equity or borrowing)
(i) Annual budget for the Parent adopted by 60 days after the start of
the Board of Directors of the Parent each of its financial years
(j) A certificate regarding compliance with At the time of delivery of
the financial covenants in Clause 19.2 each set of the Borrower's
setting out the necessary computations. Group's and Borrower's
This certificate is to be signed by the Restricted Group's quarterly
Certifying Financial Officer financial statements delivered
under paragraph (d)
(k) A certificate regarding: At the time of delivery of
each set of annual
(i) compliance with the financial consolidated financial
covenants in Clause 19.2; statements for the Borrower's
Group and Borrower's
(ii) the amount of Excess Cash Restricted Group's delivered
Flow; and under paragraph (b)
(iii) the amount of capital expenditure
in that financial year
(distinguishing between capital
expenditure which is financed
from operating income and
capital expenditure which is
funded from new equity or
borrowing)
setting out the necessary computations.
This certificate is to be signed by the
Certifying Financial Officer
(l) A statement signed by the auditors of the At the time of delivery of
Borrower regarding: each set of annual
consolidated financial
(i) compliance with the financial statements for the Borrower's
covenants in Clause 19.2; and Group and Borrower's
Restricted Group's delivered
under paragraph (b)
(ii) the amount of Excess Cash Flow
(m) A certificate of Net Disposal Proceeds, At the time of delivery of
setting out the necessary computations. each set of monthly management
This certificate is to be signed by the accounts under paragraph (e)
Certifying Financial Officer
(n) A certificate of acquisition price, setting At the time of delivery of
out the necessary computations. This each set of monthly management
certificate is to be signed by the accounts under paragraph (e)
Certifying Financial Officer
(o) Details of any treasury transaction as At the time of delivery of
required by Clause 20.1(O) each set of monthly management
accounts under paragraph (e)
(p) A certificate setting out details of any At the time of delivery of
contract which is a Material Contract each set of annual audited
because it is a contract generating 10% accounts of the Borrower
or more of the Borrower's gross under paragraph (a)
revenues. This certificate is to be signed
by the Certifying Financial Officer
(q) A certificate setting out details of the At the time of delivery of the
extent to which (i) the Total Annual Borrower's Restricted Group's
Investment Limit and (ii) the Unrestricted quarterly financial statements
Entities Investment Limit have been delivered under paragraph (d)
utilised in respect of the current financial
year (but taking account of Investment
Amounts in previous financial years if
relevant to the calculation). This
certificate is to be signed by the
Certifying Financial Officer
(r) A certificate setting out the confirmation At the time of delivery of
required in Clause 5.3(F)(ii). This each set of monthly management
certificate is to be signed by the accounts under paragraph (e).
Certifying Financial Officer.
In each case the Borrower and the Parent agree to deliver the number of
copies requested by the Agent.
The obligations to deliver the documents described in paragraphs (c), (d),
(e), (f) and (i) above, insofar as they relate to the Parent or the Group
(other than the Borrower's Group), do not apply if, in the period to which
those documents relate (or would relate if they existed), (i) all of the
Parent's Subsidiaries are members of the Borrower's Group and (ii) the
Parent has no business other than that of holding shares in the Borrower.
The obligations to deliver the documents described in paragraphs (b), (d),
(f) and (h) above, in so far as they relate to the Borrower's Restricted
Group, do not apply if, in the period to which those documents relate (or
would relate if they existed) the composition of the Borrower's Restricted
Group is identical to the composition of the Borrower's Group.
18.2 GAAP
The Borrower confirms and agrees that all financial statements to which
Clause 18.1 applies will be prepared in accordance with applicable law and
Generally Accepted Accounting Principles consistently applied except to the
extent that the accompanying notes provide a description of a different
treatment.
18.3 REQUESTS
The Agent may request any Company to deliver to the Agent information about
it or its assets, business or financial condition or any other matter.
Each Company agrees to deliver promptly to the Agent the information
reasonably requested. No Company will be obliged to deliver any
information under this sub-clause if that delivery is prohibited by law or
by direction of H.M. Government.
18.4 TERMINATION EVENTS AND OTHER EVENTS
The Borrower agrees to notify the Agent promptly of:
(A) the occurrence of a Termination Event or Potential Termination Event
upon becoming aware of such occurrence;
(B) any events or developments that would be reasonably likely to result
in the termination of, or any material amendment to, any of the
Transmission
Agreements or any material licence, consent or authorisation required
for the purposes of its business, upon becoming aware of the same;
(C) any proposal to amend or waive any Material Contract (save for minor
amendments); and
(D) the occurrence of any event of default or put event under the Bonds
upon becoming aware of such occurrence.
18.5 OTHER INFORMATION
Each of the Parent and the Borrower agrees to deliver to the Agent (to the
extent not already delivered under this Agreement):
(A) all information provided to any shareholder in the Parent in its
capacity as such;
(B) all information provided to any holder of the Bonds in its capacity as
such;
(C) a certified copy of any agreement amending the NTL Site Sharing
Agreement to accommodate the DTT transmission network.
(D) any press releases made by or on behalf of the Borrower or the Parent;
and
(E) a quarterly update to the Year 2000 Programme Report from the date of
this Agreement to 31st March, 2000 and, in any event, a copy of all
updates and amendments that are issued to the Year 2000 Programme
Report.
18.6 CHANGE OF ACCOUNTING TREATMENT
(A) This sub-clause applies if there is a change in the manner in which
the financial statements of a Company or of the Group are prepared or
in the accounting principles or standards applied in the preparation
of those accounts.
(B) If this sub-clause applies or will apply the Borrower agrees to notify
the Agent. The Borrower and the Agent will then negotiate in good
faith with a view to making any necessary changes to this Agreement to
reflect the change described in paragraph (A). Neither party is bound
to continue the negotiations after the date 30 days after the Agent
receives the Borrower's notice.
(C) If this sub-clause applies, and agreement is not reached under
paragraph (B) above, the Borrower agrees to deliver, with each set of
financial statements delivered to the Agent, a reconciliation (audited
in the case of audited financial statements). This reconciliation will
show the amounts utilised for the purposes of computations required
for the purposes of this Agreement as they would have been if no
change had occurred. The amounts in this reconciliation will then be
used for computations required for the purposes of this Agreement
instead of the corresponding amounts in the financial statements
delivered under Clause 18.1.
19. FINANCIAL COVENANTS
19.1 DEFINITIONS
(A) In this Agreement:
"BORROWER'S RESTRICTED GROUP" means:
(i) if the Borrower has no Restricted Subsidiaries, the Borrower;
and
(ii) if the Borrower has Restricted Subsidiaries, the Borrower and
its Restricted Subsidiaries taken as a whole.
"CASH FLOW" for a period means the aggregate of EBITDA for that
period:
(i) minus any capital expenditure;
(ii) minus advance corporation tax, mainstream corporation tax and
withholding tax and their equivalent in any relevant
jurisdiction actually paid or falling due for payment during
that period (but excluding any amount paid in that period which
was included in the Cash Flow computation for a previous period
because it fell due in that previous period);
(iii) plus the amount of any tax rebate or credit in respect of any
advance corporation tax, mainstream corporation tax or
withholding tax and their equivalent in any relevant
jurisdiction actually received in cash by any member of the
Borrower's Restricted Group during the period;
(iv) plus Net Disposal Proceeds (but excluding for this purpose the
non-cash consideration adjustment referred to in the last
sentence of the definition of "Net Disposal Proceeds");
(v) plus the amount paid up or credited as paid during the period
(including share premium) on issued share capital of the
Borrower;
(vi) plus non-cash stock and share option charges;
(vii) plus or minus any decrease or increase in working capital
during the period.
"DEBT COVERAGE" for a period means the ratio of Financial Indebtedness
at the end of that period to EBITDA for that period. For this purpose
any amounts outstanding drawn to finance the Borrower's working
capital requirements (up to an aggregate maximum of (Pounds)10,000,000
or its Equivalent Amount (if drawn in an Optional Currency)) will, to
the extent otherwise included, be deducted from Financial
Indebtedness.
"EBITDA" for any period means the profit of the Borrower's Restricted
Group for that period:
(i) before taking into account all Extraordinary Items (whether
positive or negative) but after taking into account all
Exceptional Items (whether positive or negative);
(ii) before deducting tax, including advance corporation tax,
mainstream corporation tax and their equivalents in any relevant
jurisdiction;
(iii) before deducting amortisation of any goodwill and any costs
incurred in relation to acquisitions (to the extent that these
are expensed);
(iv) before taking into account Net Cash Interest accrued during that
period, whether or not paid, deferred or capitalised (before
taking into account financing costs in relation to Financial
Reporting Standard 4 (Capital Instruments))during that period;
(v) before taking into account amortisation of financing costs
calculated in accordance with Financial Reporting Standard 4
(Capital Instruments) during that period;
(vi) after deducting any gain, and adding back any loss, relative to
book value arising on the sale, lease or other disposal of any
asset during that period and after deducting any gain, and
adding back any loss, arising on revaluation of any asset during
that period, in each case to the extent that it would otherwise
be taken into account;
(vii) before deducting depreciation;
(viii) before deducting non-cash stock and share option charges.
"EXCEPTIONAL ITEMS" has the meaning given to it in FRS 3 issued by the
Accounting Standards Board, but excluding any Extraordinary Items.
"EXTRAORDINARY ITEMS" has the meaning given to it in FRS 3 issued by
the Accounting Standards Board, and includes those items listed in
paragraph 20 thereof.
"FINANCIAL INDEBTEDNESS" on any date means the amount of Indebtedness
for Borrowed Money of the Borrower's Restricted Group on that date.
For this purpose:
(i) any amounts under paragraph (E) of the definition of
"Indebtedness for Borrowed Money" in Clause 1.1 will be
excluded;
(ii) only the principal element of obligations (accounted for as such
in accordance with Generally Accepted Accounting Principles) in
respect of any finance lease to which a member of the Borrower's
Restricted Group is a party as lessee will be taken into account
under paragraph (F) of that definition;
(iii) no amount of Interest will be included; and
(iv) no amount outstanding under the Subordinated Loan Agreement will
be included.
"FIXED CHARGE COVERAGE RATIO" for a period means the ratio of Cash
Flow for that period to Fixed Charges for that period.
"FIXED CHARGES" for a period means the aggregate of Total Interest
Payable for that period:
(i) plus the amount of any commitment fees and of all other fees
payable under this Agreement during such period;
(ii) plus, after the Conversion Date, the amount of any repayment
instalment under Facility A which fell due during that period or
which would have fallen due during that period had there not
been a prepayment made pursuant to Clause 10.1;
(iii) plus all amounts outstanding under the Overdraft Facilities at
the end of that period;
(iv) plus all scheduled principal repayments of finance lease
obligations which fell due for payment during that period;
(v) plus all obligations in respect of principal and fees (other
than upfront or other non-recurring fees) under any agreement
falling within paragraph (A) of the definition of Indebtedness
for Borrowed Money falling due during such period (to the extent
not otherwise taken into account) but excluding (for the
avoidance of doubt) obligations in respect of such Indebtedness
for Borrowed Money falling within paragraph (F) of such
definition;
(vi) plus all Extraordinary Items (whether positive or negative)
falling due during such period.
"INTEREST" means interest and amounts in the nature of interest.
"NET CASH INTEREST" for any period means the Interest due and payable
during that period as an obligation of any member of the Borrower's
Restricted Group (whether or not paid or capitalised during or
deferred (but to the extent that deferred Interest is included in Net
Cash Interest in such period, any such deferred Interest shall not be
included in the calculation of Net Cash Interest in the following
period) for payment after such period), but adjusted to take account
of:
(i) any amount (other than, in the case of currency hedging
agreements or instruments, the original principal amount)
receivable or payable during that period by any member of the
Borrower's Restricted Group (after deducting all taxes
applicable to that amount receivable) under interest rate or
currency hedging agreements or instruments; and
(ii) any amount constituting Interest receivable during that period
by any member of the Borrower's Restricted Group (after
deducting all taxes applicable thereto) in respect of any
investment, deposit or loan,
in either case under which all parties are in compliance with their
material obligations.
"TOTAL INTEREST PAYABLE" for any period means the Interest due and
payable during that period as an obligation of any member of the
Borrower's Restricted Group (whether or not paid or capitalised during
or deferred (but to the extent that deferred Interest is included in
Total Interest Payable in such period, any such deferred Interest
shall not be included in the calculation of Total Interest Payable in
the following period) for payment after such period), adjusted to take
account of any amount (other than, in the case of currency hedging
agreements or instruments, the original principal amount) receivable
or payable during that period by any member of the Borrower's
Restricted Group (after deducting all taxes applicable to that amount
receivable) under interest rate and/or currency hedging agreements or
instruments under which all parties are in compliance with their
material obligations.
(B) (i) All the terms defined in paragraph (A) are to be determined in
accordance with the Generally Accepted Accounting Principles and
are to be computed from:
(a) the financial statements of the Borrower (if the Borrower
has no Restricted Subsidiaries); or
(b) the consolidated financial statements of the Borrower and
its Restricted Subsidiaries (if the Borrower has Restricted
Subsidiaries),
in each case, delivered pursuant to Clause 18.1.
(ii) For the purposes of Clause 19.1 no item shall be deducted or
credited more than once in any calculation.
19.2 FINANCIAL COVENANTS
The Borrower agrees to ensure that the following financial covenants are
complied with:
(A) The ratio of EBITDA to Total Interest Payable, computed on the basis
of the annualised EBITDA and annualised Total Interest Payable (in
each case calculated by multiplying by two the figure which is the
aggregate of EBITDA or, as the case may be, Total Interest Payable for
the last two Quarters) as at the end of each Quarter, is not to be
less than:
Quarter ending Required Ratio
-------------- --------------
30th September, 1999 2.50:1
31st December, 1999 2.50:1
31st March, 2000 2.75:1
30th June, 2000 3.00:1
30th September, 2000 3.00:1
31st December, 2000 3.00:1
31st March, 2001 3.00:1
30th June, 2001 3.00:1
30th September, 2001 3.00:1
31st December, 2001 3.00:1
31st March, 2002 3.00:1
30th June, 2002 3.00:1
Thereafter 3.50:1
(B) Debt Coverage computed on the basis of the annualised EBITDA
(calculated by multiplying by two the figure which is the aggregate of
EBITDA for the last two Quarters) and tested each Quarter (using the
amount of Financial Indebtedness on that last day of that Quarter), is
not to be more than:
Quarter ending Required Ratio
-------------- --------------
30th September, 1999 5.25:1
31st December, 1999 5.25:1
31st March, 2000 5.25:1
30th June, 2000 4.75:1
30th September, 2000 4.50:1
31st December, 2000 4.50:1
31st March, 2001 4.00:1
30th June, 2001 3.75:1
30th September, 2001 3.75:1
31st December, 2001 3.75:1
31st March, 2002 3.50:1
30th June, 2002 3.50:1
30th September, 2002 3.50:1
31st December, 2002 3.50:1
Thereafter 3.00:1
(C) The Fixed Charge Coverage Ratio, computed on the basis of the
annualised Cash Flow and the annualised Fixed Charges (in each case
calculated by multiplying by two the figure which is the aggregate of
Cash Flow or, as the case may be, Fixed Charges for the last two
Quarters) and tested each Quarter, is not
to be less than 1.75: 1. The Fixed Charge Coverage Ratio will first be
tested in the Quarter ending 30th June, 2002 and subsequently will be
tested in each succeeding Quarter.
20. GENERAL COVENANTS
20.1 COVENANTS
Each Company agrees that, unless otherwise agreed by the Agent (acting on
the instructions of an Instructing Group):
(A) RANKING OF OBLIGATIONS: It will ensure that its obligations under this
Agreement are at all times secured by the Charges to which it is a
party.
(B) COMPLIANCE: It will exercise its rights and perform its obligations
under the Financing Documents without contravention of applicable
laws. If approvals are required to do this it will obtain and maintain
them and will comply with their terms. It will also make any necessary
filings in respect of the Financing Documents unless these are
required to be, or are, made by another person.
(C) NEGATIVE PLEDGE: It will not create or allow to exist (and will
procure that no Restricted Subsidiary creates or allows to exist) any
Security over any of its assets. This prohibition does not, however,
apply to the following:
(i) Security created by the Charges.
(ii) Liens or rights of set-off arising in the ordinary course of
trading or by operation of law.
(iii) Title retention or hire purchase arrangements in respect of
goods. These arrangements must arise in the ordinary course of
trading and on customary terms.
The exceptions in sub-paragraphs (ii) and (iii) do not permit any
Security to be created over the Borrower's rights under any of the
Transmission Agreements. This paragraph applies to the Parent to the
extent only that it relates to the shares which the Parent holds in
the Borrower.
(D) DISPOSAL OF ASSETS: It will not (and will procure that each Restricted
Subsidiary will not) dispose of any of its assets. This does not apply to
disposals:
(i) on an arm's length basis;
(ii) of obsolete or unused assets or as waste; or
(iii) between the Borrower and any Restricted Subsidiary (which is a wholly-
owned member of the Borrower's Restricted Group) or between Restricted
Subsidiaries (each of which is a wholly-owned member of the Borrower's
Restricted Group).
No disposal of any of the Borrower's rights under any of the
Transmission Agreements may be made by virtue of any of sub-paragraphs
(i), (ii) or (iii). In addition, a disposal is only permitted under
sub-paragraphs (i), (ii) or (iii) if the Borrower will be able to
carry on the Analogue Transmission Business or the DTT Transmission
Business substantially as before. For this purpose the Agent
is entitled to rely on a certificate from the Borrower (signed by a
Certifying Financial Officer) to this effect.
For the purposes of this paragraph, the grant of a lease or licence
(other than a lease or licence given as part of a site sharing
arrangement in the ordinary course of business) is treated as a
disposal. Any disposal which would otherwise be permitted under sub-
paragraph (iii) above is not permitted to the extent that each of the
following applies:
(a) the Net Disposal Proceeds of any disposal of that asset by the
acquiror would not, by reason of applicable law, be capable of
being made available to the Borrower for the purposes of making a
Disposal Prepayment which would otherwise be payable under Clause
10.2 as a result of that disposal by the acquiror; and
(b) at the time of the original disposal to the acquiror any member of
the Borrower's Restricted Group was aware or should have been
aware that the Net Disposal Proceeds would not be available to the
Borrower for the purpose of making that Disposal Prepayment.
This paragraph does not apply to the Parent, who (subject to Clause
20.1(AA) and Clause 20.1(BB)) may dispose of its assets as it sees
fit.
(E) COMPLIANCE WITH LAWS: It will (and will procure that each Restricted
Subsidiary will) comply with all applicable laws and regulations, and
the terms of all permits, authorisations and licences. This paragraph
includes, amongst other things, compliance with environmental laws,
regulations, permits, authorisations and licences. If there is a
breach of such a permit, authorisation or licence, but that breach is
capable of remedy and the permit, authorisation or licence has not
been terminated or revoked, there will not be a breach of this
paragraph. This paragraph does not apply to the Parent.
(F) INSURANCE: It will (and will procure that each Restricted Subsidiary
will) maintain insurance relating to its assets and activities against
those risks and at those levels which are consistent with the
insurance maintained by similar businesses. It also agrees to provide
to the Agent evidence of all insurance arranged. This paragraph does
not apply to the Parent.
(G) MAINTENANCE OF REPRESENTATIONS: It will take all steps necessary to
ensure that those representations in Clause 17.1 which are deemed to
be repeated by reason of clause 17.2 remain true and correct when so
deemed to be repeated.
(H) AGREEMENTS WITH RELATED PARTIES: It will ensure that all agreements
between it and any member of the Equity Consortium or any other
shareholder of the Parent or any member of the Group are on an arm's
length basis on commercial terms (other than agreements with the
Borrower or wholly-owned Restricted Subsidiaries of the Borrower which
have become Guarantors in accordance with Clause 20.1(R)). This
paragraph does not apply to the Parent.
(I) ENFORCEMENT OF MATERIAL CONTRACTS: It will (and will procure that each
Restricted Subsidiary will) ensure that all material rights under all
Material Contracts are enforced in accordance with their terms. This
paragraph does not apply to the Parent.
(J) PERFORMANCE OF MATERIAL CONTRACTS: It will (and will procure that each
Restricted Subsidiary will) perform its obligations under Material
Contracts (including under any licences, roll-out or transmission
system modification requirements or other performance covenants set
out in any of them) in all material respects in accordance with their
terms. Defaults:
(i) under any Transmission Agreement giving rise to charges of
service credits under that Transmission Agreement of less than
(Pounds)500,000 in any financial year; or
(ii) under more than one Transmission Agreement giving rise to
service credits of less than (Pounds)1,500,000 in aggregate in
any financial year, and defaults under any licence which would
not be in breach of Clause 20.1(E) are to be treated as not
material. This paragraph does not apply to the Parent.
(K) BORROWINGS: It will not (and it will procure that each Restricted
Subsidiary will not) have any Indebtedness for Borrowed Money, or
issue any guarantees, indemnities or other similar assurances (each
being for the purposes of this paragraph a "GUARANTEE"), except (at
any time):
(i) amounts due under: (a) this Agreement; (b) the Overdraft
Facilities (as long as the amount outstanding does not exceed
(Pounds)5,000,000); and (c) the Hedging Contracts;
(ii) amounts due under finance leases where the aggregate principal
elements of obligations in respect of those leases does not
exceed (Pounds)3,500,000 in aggregate;
(iii) guarantees of the Borrower's obligations under this Agreement;
(iv) amounts borrowed by the Borrower or a Restricted Subsidiary
(which is a wholly-owned member of the Borrower's Restricted
Group) from a Restricted Subsidiary (which is a wholly-owned
member of the Borrower's Restricted Group) or from the
Borrower;
(v) guarantees by the Borrower or a Restricted Subsidiary (which is
a wholly-owned member of the Borrower's Restricted Group) of
obligations (which are not prohibited by the terms of the
Financing Documents) of a Restricted Subsidiary (which is a
wholly-owned member of the Borrower's Restricted Group) or the
Borrower;
(vi) amounts due in respect of finance provided by suppliers of
goods and services in the ordinary course of business and not
exceeding (Pounds)1,000,000 in aggregate;
(vii) amounts due from the Borrower to the Parent under the
Subordinated Loan Agreement;
(viii) amounts due from the Borrower to CT Finance under the Inter-
Company Loan Agreement;
(ix) guarantees of CT Finance's obligations under the Bonds. This
applies to guarantees relating to the first issue of bonds
under the Bonds. It does not apply to guarantees relating to
any issue of further or other bonds;
(x) guarantees of amounts not exceeding (Pounds)500,000 in
aggregate;
(xi) Indebtedness for Borrowed Money incurred by, provided by or
otherwise made available by the Borrower's Restricted Group in
relation to Unrestricted Entities so long as the aggregate
amount of Indebtedness for Borrowed Money incurred by, provided
by or otherwise made by the Borrower's Restricted Group and
outstanding at such time in relation to Unrestricted Entities
does not exceed the Unrestricted Entities Investment Limit when
aggregated with any other Investment Amounts which have been
previously incurred by, provided by or otherwise made available
by members of the Borrower's Restricted Group after the
Amendment Date in relation to Unrestricted Entities and which
(in the case of Indebtedness for Borrowed Money) are
outstanding at such time; and
(xii) other borrowings not exceeding (Pounds)5,000,000 in aggregate.
This paragraph does not apply to the Parent, who may have
Indebtedness for Borrowed Money, or issue guarantees, as it
sees fit.
(L) ACQUISITIONS AND JOINT VENTURES:
(i) It will not (and will procure that any Restricted Subsidiary
will not):
(a) acquire any business; or
(b) make any investment in any company; or
(c) enter into any joint venture or any joint venture agreement
or arrangement where, in any case, it has any obligation to
lend to, guarantee, transfer assets to or otherwise fund or
incur any liability in respect of this joint venture or to
acquire any shares in or assets of this joint venture,
(each a "FURTHER ACQUISITION") unless each of the conditions set
out in sub-paragraphs (ii), (iii), (iv) and (v) are satisfied.
(ii) The Further Acquisition must involve a business related to that
of the Borrower.
(iii) The consideration for the Further Acquisition:
(a) when aggregated with all other Investment Amounts incurred
by, provided by or otherwise made by members of the
Borrower's Restricted Group in that financial year, must
not exceed the Total Annual Investment Limit; and
(b) when aggregated with all other Investment Amounts incurred
by, provided by, or otherwise made available by members of
the Borrower's Restricted Group in relation to Unrestricted
Entities in the current or any previous financial years
(but after the Amendment Date) and which (in the case of
Indebtedness for Borrowed Money) are outstanding at such
time, must not exceed the Unrestricted Entities Investment
Limit.
(iv) The Agent must have been provided with any information
(financial or otherwise) in relation to the Further Acquisition
as it may reasonably request.
(v) The Certifying Financial Officer must confirm in writing to the
Agent that, to the best of his knowledge having made all
reasonable enquiries and
without personal liability, the Further Acquisition will not
result in it failing to comply with any of its obligations
under Clause 19.2 at all times during the next four full
Quarters following the date on which the Further Acquisition
takes place.
(vi) In addition, this paragraph (L) will not apply:
(a) after the date on which the annualised Debt Coverage is
first established to be not more than 3:1 for two
successive Quarters; and
(b) for so long as the annualised Debt Coverage remains at no
more than 3:1. Annualised Debt Coverage will be calculated
as set out in Clause 8.8.
This paragraph does not apply to the Parent, who may acquire
businesses or make investments in companies as it sees fit.
(M) INVESTMENTS: It will not (and will procure that each Restricted
Subsidiary will not) invest any surplus cash other than in cash
deposits with UK clearing banks or in cash equivalent investments. For
the purpose of this paragraph "CASH EQUIVALENT INVESTMENTS" means
investments in:
(i) marketable obligations of or guaranteed by any of the United
Kingdom, the Republic of France or the United States of America
or issued by an agency of any of them and backed by any of the
same;
(ii) certificates of deposit, notes and acceptances issued by banks
which are authorised institutions under the Banking Xxx 0000 or
which are European authorised institutions under the Banking
Coordination (Second Council Directive) Regulations 1992 and
which are entitled to accept deposits in the United Kingdom or
by building societies under the Building Societies Xxx 0000, so
long as such bank or building society's long term senior debt
immediately prior to the making of such an investment is rated
not less than A- by Standard & Poor's Corporation or not less
than A3 by Xxxxx'x Investors Services Inc., or (where a bank or
building society is rated by both Standard & Poor's Corporation
and by Xxxxx'x Investors Services Inc.) is rated not less than
A- by Standard & Poor's Corporation and not less than A3 by
Xxxxx'x Investors Services Inc.;
(iii) commercial paper with not more than 187 days to maturity
provided that immediately prior to the making of such an
investment the issuer (or guarantor) of the commercial paper is
rated for short term obligations not less than A1 by Standard &
Poor's Corporation or not less than P1 by Xxxxx'x Investors
Services, Inc., or (where a bank or building society is rated
by both Standard & Poor's Corporation and by Xxxxx'x Investors
Services Inc.) is rated not less than A1 by Standard & Poor's
Corporation and not less than P1 by Xxxxx'x Investors Services
Inc.; or
(iv) any Indebtedness for Borrowed Money issued by persons with a
rating of A+ or higher by Standard & Poor's Corporation or A1
or higher by Xxxxx'x Investors Services Inc.,
provided that any investment made pursuant to sub-paragraphs (ii),
(iii) and (iv) above in or guaranteed by a single bank, building
society or other body
corporate in excess of (Pounds)2,500,000 shall not be permitted. This
paragraph does not apply to the Parent.
(N) LOANS: It will not (and will procure that each Restricted Subsidiary
will not) provide loans or other credit, other than:
(i) normal trade credit;
(ii) loans not exceeding (Pounds)500,000 in aggregate;
(iii) loans to the Borrower or a Restricted Subsidiary (which is a
wholly-owned member of the Borrower's Restricted Group)
permitted by Clause 20.1(K); and
(iv) loans or other credit which, when aggregated with all other
Investment Amounts incurred by, provided by, or otherwise made
available by members of the Borrower's Restricted Group and
which (in the case of Indebtedness for Borrowed Money) are
outstanding at such time, do not exceed either:
(a) in respect of Investment Amounts which are incurred by,
provided by, or otherwise made available by members of the
Borrower's Restricted Group in the current financial year,
the Total Annual Investment Limit applicable to this
financial year; or
(b) in respect of Investment Amounts which are (1) incurred by,
provided by, or otherwise made available by members of the
Borrower's Restricted Group in the current or any previous
financial years (but after the Amendment Date) and (2)
relate to loans or other credit made available to
Unrestricted Entities, the Unrestricted Entities Investment
Limit.
This paragraph does not apply to the Parent, who may provide loans or
other credit as it sees fit.
(O) TREASURY TRANSACTIONS: It will not (and will procure that each
Restricted Subsidiary will not) enter into any interest rate swap,
cap, ceiling, collar or floor or any swap, future or option in
relation to currency or equity or any commodity contract or option (in
any of these cases, whether over the counter or exchange traded) or
any similar treasury transaction, other than:
(i) in the case of the Borrower, the Hedging Contracts;
(ii) spot foreign exchange contracts entered into in the ordinary
course of business (other than for speculative purposes); and
(iii) the hedging of actual or projected foreign exchange exposures
arising in the ordinary course of its business.
Where a Company enters into one of the transactions permitted by sub-
paragraphs (ii) or (iii) it will provide details of that transaction
to the Agent at the time of delivery of each set of monthly management
accounts under Clause 18.1(e) to the extent that such details have not
been previously provided to the Agent. No details need be provided,
however, of any transaction involving a notional or actual principal
amount of less than (Pounds)10,000,000.
This paragraph does not apply to the Parent, who may enter into
treasury transactions as it sees fit.
The Borrower agrees that, unless otherwise agreed by the Agent (acting on
the instructions of an Instructing Group):
(P) CARRY ON BUSINESS: It will carry on the Analogue Transmission Business
and the DTT Transmission Business. These businesses will be conducted
in accordance with applicable law.
(Q) INTELLECTUAL PROPERTY: It will maintain all material intellectual
property rights required for the purpose of the Analogue Transmission
Business, the DTT Transmission Business or any other material business
conducted by it in all appropriate jurisdictions.
(R) SUBSIDIARIES:
(i) It will ensure that each of its Subsidiaries becomes a
guarantor of amounts due under this Agreement unless it is
designated an Unrestricted Subsidiary in accordance with sub-
paragraph (ii) or unless sub-paragraph (v) applies. When a
company is required to be a Guarantor for the purposes of this
paragraph the Borrower agrees to ensure that:
(a) that company duly executes and delivers an Additional
Guarantor Agreement substantially in the form set out in
Schedule 6 (and for this purpose the Borrower is authorised
to execute the Additional Guarantor Agreement on behalf of
each Company);
(b) that company duly executes a document of a type described
in paragraphs (C) or (D) of the definition of "Charges" in
Clause 1.1; and
(c) there is delivered to the Agent evidence reasonably
satisfactory to the Agent that the Additional Guarantor
Agreement and the document referred to in sub-paragraph (b)
above are valid and binding on that Company and (in the
case of the document referred to in sub-paragraph (b)
above) creates first ranking security (subject to Security
permitted under Clause 20.1(C)(ii) and (iii)). This
evidence may include items equivalent to those described in
paragraphs 4, 5 and 6 of Schedule 3.
Each of the requirements in sub-paragraphs (a), (b) and (c)
above must be satisfied within 30 days of a company becoming a
Subsidiary of the Borrower. The obligations contained in this
paragraph do not apply to:
(1) CT Finance (which shall be deemed to be an Unrestricted
Subsidiary with effect from the Amendment Date); or
(2) any Subsidiary of the Borrower whose sole business is to
hold and administer pension funds on behalf of the
employees of companies in the Group; or
(3) any Subsidiary which is designated an Unrestricted
Subsidiary in accordance with sub-paragraph (ii) or in
relation to which sub-paragraph (v) applies.
(ii) Where a Further Acquisition which is permitted under Clause
20.1(L) involves the acquisition of, or subscription for shares
in, a company (a
"NEW COMPANY") which owns, or is established for the purpose of
owning, the business to be acquired or invested in, the
Borrower will:
(a) have the right, if the New Company is a Subsidiary (a "NEW
SUBSIDIARY"), to designate the New Subsidiary as an
"UNRESTRICTED SUBSIDIARY" or to apply to the Agent under
sub-paragraph (v); and
(b) upon the acquisition of, or subscription for, the shares of
the New Company by it or by any Restricted Subsidiary to
which sub-paragraph (v) does not apply, grant, or procure
the granting of, a first equitable charge in respect of
such shares in favour of the Agent but provided that the
Lenders' rights under the equitable charge are subject to
any pre-emption rights granted by the relevant member of
the Borrower's Restricted Group under any joint venture
agreement entered into in connection with the acquisition
of, or subscription for, shares in the New Company so long
as these pre-emption rights provide for the transfer of the
shares to which they relate at fair market value. In such
circumstances, the Borrower will not be required to ensure
the execution and delivery of the documents and evidence
referred to in sub-paragraphs (i)(a),(b) and (c).
(iii) It will ensure that any Unrestricted Subsidiary does not at any
time grant to any third party a fixed or floating charge over
any assets or property which it shares with or which is owned
or used by or in connection with the business of any member of
the Borrower's Restricted Group except with the prior written
consent of the Agent.
(iv) At any time subsequent to an acquisition of an Unrestricted
Subsidiary the Borrower may elect to designate a New Subsidiary
as a "RESTRICTED SUBSIDIARY", which designation will take
effect upon all the documents and evidence referred to in sub-
paragraphs (i)(a), (b) and (c) being delivered to the Agent in
a form satisfactory to the Agent.
(v) This sub-paragraph (v) applies where:
(a) the Borrower or a Restricted Subsidiary is proposing to
acquire, or subscribe for, shares in a company which upon
the proposed acquisition or subscription taking place
would become a Subsidiary of the Borrower or a Restricted
Subsidiary; and
(b) the Borrower demonstrates to the satisfaction of the Agent
that it would be impossible or highly impracticable
(having regard to the value of any security or guarantees
otherwise required to be provided to the Agent) for the
proposed Subsidiary to execute and deliver either or both
of the documents referred to in Clause 20.1(R)(i)(a) and
(b) and/or comply with the requirement set out in Clause
20.1(Z).
In this event, the Agent will permit the proposed Subsidiary,
on becoming a Subsidiary, to be designated a "RESTRICTED
SUBSIDIARY" notwithstanding that this proposed Subsidiary will
not comply with the requirements set out in Clause
20.1(R)(i)(a), (b) and (c) and/or set out in Clause 20.1(Z).
The Borrower will provide:
(1) legal opinions (in a form and content satisfactory to the
Agent) which explain why satisfying the requirements set
out in Clause 20.1(R)(i)(a), (b) and/or (c) and/or Clause
20.1(Z) are impossible or highly impracticable.
(2) any information (financial or otherwise) in relation to the
proposed Subsidiary as the Agent may reasonably request.
(3) a certificate of the Certifying Financial Officer
confirming that, to the best of his knowledge having made
all reasonable enquiries and without personal liability,
the investment in the proposed Subsidiary will not result
in it failing to comply with any of its obligations under
Clause 19.2 at all times during the next four full Quarters
following the date on which the proposed investment takes
place.
(vi) This sub-paragraph (vi) applies where:
(a) the Borrower notifies the Agent that it wishes a CCIC
Affiliate to be designated a "RESTRICTED SUBSIDIARY"; and
(b) the Borrower has ensured that this CCIC Affiliate has
provided the Agent with the documents and evidence set out
(and as specified in) in Clause 20.1(R)(i)(a), (b) and (c).
In this event, the Agent will permit that CCIC Affiliate to be
designated a "RESTRICTED SUBSIDIARY" and therefore a member of
the Borrower's Restricted Group and to be deemed to be a
wholly-owned member of the Borrower's Restricted Group, in each
case for the purpose of the Finance Documents.
(S) DISTRIBUTION: It will not make any Distribution, and it will not pay
any amounts in respect of interest or principal under the Subordinated
Loan Agreement.
(T) CHANGE OF BUSINESS: It will not change the nature of its business or,
taken as a whole, that of its Subsidiaries.
(U) ACCOUNTING REFERENCE DATE: It will retain 31st December as its
accounting reference date and will make no change to the duration of
any of its financial years.
(V) BONDS: It will procure that:
(i) (save for the correction of typographical inconsistencies or
manifest errors) the terms and conditions of the Bonds are not
amended or waived in any way at the request of CT Finance (or
any other member of the Group); and
(ii) CT Finance's obligations under the Bonds are not defeased to
any other person, and no other person is substituted for or
assumes the obligations of CT Finance in respect of the Bonds.
(W) CT FINANCE AS SUBSIDIARY: It will ensure that CT Finance remains its
wholly-owned Subsidiary.
(X) INTER-COMPANY LOAN AGREEMENT: It will procure that:
(i) the terms of Inter-Company Loan Agreement are not amended or
waived in any way;
(ii) (save, in the case of the Borrower, for the Charges) neither
party to the Inter-Company Loan Agreement assigns its rights or
novates its rights and obligations under the Inter-Company Loan
Agreement; and
(iii) no payment is made under the Inter-Company Loan Agreement which
is greater, or is made earlier, than is required to be made
under the terms of the Inter-Company Loan Agreement.
(Y) ABANDONMENT OF DTT: It will not abandon all or any material part of
its DTT transmission network.
(Z) FULLY PAID SHARES: It will ensure that all shares directly owned by
it, or by any member of the Borrower's Restricted Group (other than a
member to which Clause 20.1(R)(v) applies) are charged to the Agent
and that all those shares are fully paid, have no liability attaching
to the holder and, as against the Agent upon enforcement of the
Charges, are free from any restriction on transfer and any rights of
pre-emption (except as provided in Clause 20.1(R)(ii)(b)). It will
also ensure that the share certificates for all those shares are
delivered to the Agent as soon as reasonably practicable after the
relevant company obtains possession of those share certificates in its
name or in the name of its nominee.
The Parent agrees that, unless otherwise agreed by the Agent (acting on the
instructions of an Instructing Group):
(AA) BORROWER AS A SUBSIDIARY: It will ensure that the Borrower remains its
wholly-owned Subsidiary.
Each of the Borrower and the Parent agrees that, unless otherwise agreed by
the Agent (acting on the instructions of an Instructing Group):
(BB) SUBORDINATED LOAN AGREEMENT: It will not amend or waive any term of
the Subordinated Loan Agreement. This paragraph does not, however,
prohibit an increase in the principal amount available to the Borrower
under the Subordinated Loan Agreement.
The Borrower agrees that, unless otherwise agreed by the Agent (acting on
the instructions of an Instructing Group):
(CC) HEDGING POLICY: It will use its best efforts to hedge its interest
rate exposure in accordance with the Hedging Policy and the following
requirements:
(i) Each Hedging Contract will comply with the requirements of
Schedule 11.
(ii) Security may be granted to a Hedging Bank only on an equal
basis with the Lenders. This may only be achieved by the
counterparty to the Hedging Contract executing and delivering a
Hedging Bank Agreement with the Agent substantially in the form
of Schedule 10.
(iii) It will use its best efforts to ensure that all Hedging
Contracts required by the Hedging Policy are effective by the
date 90 days after the Amendment Date.
(iv) The counterparties in all Hedging Contracts must at all times
be Lenders or their affiliates.
(v) The aggregate notional principal amount under all the Hedging
Contracts will not exceed the Facility A Commitments (provided
that, to the extent that the notional principal amount exceeds
the Facility A Loan, the Borrower will supply the Agent with
details of proposed Facility A Advances to be made by it in
respect of this amount).
(vi) The Borrower will notify the Agent before executing any Hedging
Contract and before agreeing any transaction under a Hedging
Contract. This notification will include details of the
commercial terms of the Hedging Contract. In the notification
the Borrower will confirm that the proposed Hedging Contract or
transaction will not infringe the requirements of this
paragraph.
(DD) JOINT VENTURES: It will not (and will procure that none of its
Restricted Subsidiaries will) enter into or acquire any interest in
any company, partnership or other unincorporated person for the
purpose of implementing any joint venture other than by:
(i) the acquisition of stocks, shares or securities in a limited
liability company; or
(ii) through a limited liability company established for the purpose
of implementing the relevant joint venture.
(EE) SHAREHOLDER SUPPORT: In the event that TeleDiffusion de France
International S.A. does not complete the exchange of its shareholding
in the Parent for a shareholding in CCIC (the "TDF ROLL-UP") on or
before 16th July, 1999, it will procure that TeleDiffusion de France
International S.A. gives a support letter substantially in the form of
that delivered by CCIC in order to satisfy the requirement set out in
paragraph 14 of Schedule 3.
(FF) RESTRICTIVE COVENANT INDEMNITY INSURANCE: Unless copies of the
documents identified in the Certificate of Title (provided to the
Agent by the solicitors for the Borrower) as missing are provided to
the solicitors for the Agent by no later than 25th June, 1999 the
Borrower will use its best efforts to put in place by no later than
9th July, 1999 (at its own cost) restrictive covenant indemnity
insurance acceptable to the Agent (acting reasonably) in respect of
each of the following properties as the same are more particularly
described in Part 2 of Schedule 1 to the Debenture, namely:
(i) Bolehill;
(ii) Xxxxxxx Xxxxx; and
(iii) Droitwich;
and ensure that a note of the Lenders' interest is noted thereon.
(GG) POSTWICK: It will use its best efforts to put in place by no later
than 9th July, 1999 (at its own cost) restrictive covenant indemnity
insurance acceptable to the Agent (acting reasonably) in respect of
the property at Postwick as the same is more particularly described in
Part 2 of Schedule 1 to the Debenture and ensure that a note of the
Lenders' interest is noted therein.
(HH) SUPPLEMENTAL CERTIFICATE OF TITLE: It will use its best efforts to
provide the solicitors for the Agent by no later than 25th June, 1999
with a supplemental certificate of title in the agreed form in respect
of the property at Swansea as the same is more particularly described
in Part 2 of Schedule 1 of the Debenture which will comprise a report
on the lease dated 10th February, 1992 made between The Secretary of
State for Wales (1) and the British Broadcasting Corporation (2).
20.2 DURATION OF COVENANTS
The obligations under this Clause and Clauses 18 and 19 will cease to have
effect when the Facilities have ceased to be available and there are no
amounts outstanding under any of the Facilities.
21. TERMINATION EVENTS
21.1 TERMINATION EVENTS
Each of the following is a Termination Event:
(A) NON-PAYMENT: A Company fails to pay an amount due under a Financing
Document or a Hedging Contract unless the reason for the failure is
technical or administrative. In that case there will be a Termination
Event only if that amount is not paid by that or any other Company
within 3 Business Days of the due date.
(B) OTHER DEFAULTS: A Company fails to perform any of its other
obligations under a Financing Document or a Hedging Contract. There
will not, however, be a Termination Event under this paragraph if the
failure is capable of remedy and is cured within 14 days of the
Borrower becoming aware of the failure.
(C) UNTRUE REPRESENTATIONS: Any statement made, or deemed repeated, in a
Financing Document or a Hedging Contract or in any document delivered
by a Company under a Financing Document or a Hedging Contract is
untrue or misleading when that statement is made.
(D) CROSS DEFAULT: Any Indebtedness for Borrowed Money of a member of the
Borrower's Restricted Group other than under a Financing Document or a
Hedging Contract:
(i) is not paid or repaid when due for payment or repayment or
within any applicable grace period; or
(ii) is, or becomes capable of being, declared due and payable
before its stated date of payment in accordance with its terms
and by reason of an event of default (however described).
There will not be a Termination Event under this paragraph unless the
aggregate amount of the Indebtedness for Borrowed Money to which (i)
or (ii) applies exceeds (Pounds)500,000.
(E) INSOLVENCY AND REORGANISATION: Any procedure is commenced with a view
to the winding-up or re-organisation of a member of the Borrower's
Restricted Group or with a view to the appointment of an
administrator, receiver or trustee in bankruptcy in relation to a
member of the Borrower's Restricted Group or any of its assets. This
procedure may be a court procedure or any other step which under
applicable law is a possible means of achieving any of those results.
It
will not be a Termination Event, however, if any procedure is
commenced with a view to the insolvent winding-up of a member of the
Borrower's Restricted Group and this procedure is contested in good
faith and dismissed within 28 days of its commencement.
(F) ENFORCEMENT OF SECURITY: The holder of any Security over any of a
member of the Borrower's Restricted Group's assets commences the
enforcement of that Security in accordance with its terms. This will
not be a Termination Event if the aggregate amount secured by the
Security is (Pounds)100,000 or less.
(G) ATTACHMENT OR DISTRESS: Any assets of a member of the Borrower's
Restricted Group are subject to attachment, sequestration, execution
or any similar process in respect of Indebtedness for Borrowed Money
of more than (Pounds)100,000.
(H) INABILITY TO PAY DEBTS: A member of the Borrower's Restricted Group:
(i) is unable to pay its debts as they fall due within the meaning
of section 123(1) of the Insolvency Xxx 0000 unless, in the
case of section 123(1)(a) only, a statutory notice has been
withdrawn, stayed or dismissed within 21 days;
(ii) admits its inability to pay its debts as and when they fall due
or seeks a composition or arrangement with its creditors or any
class of them; or
(iii) suspends payments of its debts as they fall due,
or the value of the assets of a member of the Borrower's Restricted
Group is less than the amount of its liabilities, taking into account
its contingent and prospective liabilities at their valued amounts,
calculated in accordance with Generally Accepted Accounting
Principles.
(I) INSOLVENCY EQUIVALENCE: Anything analogous to any of the events
described in paragraphs (E) to (H) (inclusive) occurs in any relevant
jurisdiction.
(J) UNLAWFULNESS OR REPUDIATION: It is unlawful for a Company to comply
with, or it repudiates, its material obligations under a Financing
Document.
(K) CESSATION OF BUSINESS: The Borrower ceases or threatens to cease to
carry on a material part of the Analogue Transmission Business, the
DTT Transmission Business or any other material part of its business,
or any member of the Borrower's Restricted Group ceases or threatens
to cease to carry on any other material business operated by the
Borrower's Group (taken as a whole). This paragraph does not apply in
respect of disposals which are permitted under Clause 20.1(D).
(L) CHANGE OF CONTROL - ANALOGUE TRANSMISSION AGREEMENT: Any event or
circumstance described in Clause 13.5.1 of the Analogue Transmission
Agreement occurs and subsists as a result of which the BBC is entitled
to terminate the Analogue Transmission Agreement (whether or not it
exercises its rights to terminate) by virtue of Clause 13.5.1 of the
Analogue Transmission Agreement. For the purposes of this paragraph
(save where sub-paragraph (iii) applies) any amendment made to the
Analogue Transmission Agreement or the Commitment Agreement (as
defined in the Share Sale Agreement), and any waiver or consent
granted by the BBC, will be disregarded. However, there will not be a
Termination Event under this paragraph in any of the following cases:
(i) If all the Lenders have given their prior written consent.
(ii) If the event or circumstance is a flotation of shares as
described in Clause 10.4(B).
(iii) If:
(a) the BBC is not entitled to terminate the Analogue
Transmission Agreement by virtue of that event or
circumstance because the Analogue Transmission Agreement or
the Commitment Agreement (as defined in the Share Sale
Agreement) has been amended or the BBC has granted a waiver
or consent; and
(b) the Agent (acting on the instructions of an Instructing
Group) has given its prior written consent provided that
such prior written consent will not be required if the TdF
Roll-up is completed on or before 16th July, 1999.
(M) CHANGE OF CONTROL - BBC DTT TRANSMISSION AGREEMENT: Any event or
circumstance described in Clause 12.7.1 of the BBC DTT Transmission
Agreement occurs and subsists as a result of which the BBC is entitled
to terminate the BBC DTT Transmission Agreement (whether or not it
exercises its rights to terminate) by virtue of Clause 12.7.1 of the
BBC DTT Transmission Agreement. For the purposes of this paragraph
(save where sub-paragraph (iii) applies) any amendment made to the BBC
DTT Transmission Agreement, and any waiver or consent granted by the
BBC, will be disregarded. However, there will not be a Termination
Event under this paragraph in any of the following cases:
(i) If all the Lenders have given their prior written consent.
(ii) If the event or circumstance is a flotation of shares as
described in Clause 10.4(B).
(iii) If:
(a) the BBC is not entitled to terminate the BBC DTT
Transmission Agreement by virtue of that event or
circumstance because the BBC DTT Transmission Agreement has
been amended or the BBC has granted a waiver or consent;
and
(b) the Agent (acting on the instructions of an Instructing
Group) has given its prior written consent provided that
such prior written consent will not be required if the TdF
Roll-up is completed on or before 16th July, 1999.
(N) MATERIAL ADVERSE CHANGE: Either of the following occurs:
(i) There is a change in financial condition of the Borrower or
(taken as a whole) the Parent and the Borrower's Group having a
material adverse impact on the Borrower's or (taken as a whole)
the Guarantors' ability to perform its or their payment
obligations under the Financing Documents since the last date
as at which each of the covenants in Clause 19.2 were measured.
The assessment of whether the change in financial condition is
material will be measured against the covenants tested on that
date.
(ii) An event or circumstance occurs and is continuing affecting the
business or operations of the Borrower and (taken as a whole)
the
Parent and the Borrower's Group and having a material adverse
impact on the Borrower's or (taken as a whole) the Guarantors'
ability to perform its or their payment obligations under the
Financing Documents. The assessment of whether there has been a
material adverse impact will be measured against the business
or operations of the Borrower and (taken as a whole) the Parent
and the Borrower's Group on the Amendment Date.
(O) LITIGATION: A Company is involved in litigation which is reasonably
likely to have an unfavorable outcome materially adversely affecting
the Borrower's or (taken as a whole) the Guarantors' ability to
perform its or their obligations under the Financing Documents or, in
the case of the Borrower, to perform its material obligations under
any of the Transmission Agreements.
(P) FAILURE OF PURPOSE: The Borrower cannot use the proceeds of the
Facilities for the purposes described in Clause 2.2.
(Q) ILLEGALITY OR TERMINATION OF THE TRANSMISSION AGREEMENTS: Any of the
Transmission Agreements is terminated or ceases to be in full force
and effect or it becomes illegal for:
(i) the BBC to perform its obligations under the Analogue
Transmission Agreement or the BBC DTT Transmission Agreement;
or
(ii) ONDIGITAL to perform its obligations under the ONDIGITAL DTT
Transmission Agreement.
(R) DEFAULT BY THE BBC: The BBC is due to pay, but has not paid within
five Business Days of the due date, amounts under the Analogue
Transmission Agreement or the BBC DTT Transmission Agreement in either
case in an aggregate amount exceeding (Pounds)5,000,000 (which figure
shall be increased each year by applying an indexation factor
equivalent to that obtained from the indexation provisions set out in
the relevant agreement which relates to the scheduled monthly payments
as and when such indexation calculation under the relevant
transmission agreement takes place). The Agent may rely on a
certificate of the Borrower as to the prevailing default limit figure
resulting from such indexation.
(S) DEFAULT BY ONDIGITAL: ONDIGITAL is due to pay, but has not paid within
five Business Days of the due date, amounts under the ONDIGITAL DTT
Transmission Agreement in an aggregate amount exceeding
(Pounds)5,000,000 (which figure shall be increased by applying an
indexation factor equivalent to that obtained from the indexation
provisions set out in the ONDIGITAL DTT Transmission Agreement as and
when such indexation calculation under the ONDIGITAL DTT Transmission
Agreement takes place). The Agent may rely on a certificate of the
Borrower as to the prevailing default limit figure resulting from such
indexation.
(T) FORCE MAJEURE: Any event or circumstances constituting "Force Majeure"
(as defined in the relevant Transmission Agreement) occurs under any
of the Transmission Agreements. This will only be a Termination Event
if it has a material adverse impact on the ability of the Borrower or
(taken as a whole) the Guarantors to perform its or their payment
obligations under the Financing Documents.
(U) BONDS: The Bonds are redeemed or repurchased in whole or in part at
any time prior to their final maturity for any reason or are declared
due and payable before their stated date of payment in accordance with
their terms and by reason of an event of default. This does not apply
to redemptions or repurchases of part where that part, when aggregated
with any other such redemptions or repurchases, amounts to not more
than (Pounds)500,000 in principal amount.
21.2 CONSEQUENCES OF A TERMINATION EVENT
If a Termination Event occurs and is continuing the Agent may by notice to
the Borrower:
(A) cancel the Facilities; or
(B) demand immediate repayment of the Loan,
or both. The Agent agrees to deliver a notice under this sub-clause if an
Instructing Group instructs the Agent to do so. In the case of
cancellation the Lenders will be under no further obligation to make an
Advance. In the case of a demand for repayment the Borrower agrees to pay
the Lenders in accordance with the notice.
21.3 INDEMNITY
If there is a Termination Event the Borrower agrees to reimburse the Agent
and each Lender for the losses and expenses the Agent or that Lender
incurs, or will incur, as a result. Clause 11.7 also applies.
21.4 CURRENCY INDEMNITY
This sub-clause applies where a payment due by a Company under or in
connection with a Financing Document is made or is required to be made in a
currency other than the specified currency. To the extent that the amount
received, when converted into the specified currency, is less than the
amount due the Borrower agrees to reimburse the person entitled to the
payment for the difference. For the purposes of the computation of this
amount that person will apply to the amount received a rate of exchange
prevailing on the date of receipt. If, however, that person is unable to
use the amount received to buy the specified currency on the date of
receipt, the rate of exchange prevailing on the first date on which that
person could buy the specified currency will be used instead. The
obligation in this sub-clause is a separate and independent obligation.
PART VII : MISCELLANEOUS
22. THE AGENT AND THE ARRANGERS
22.1 APPOINTMENT
The Agent is appointed as an agent by each Lender. The Agent is not acting
as agent of any Company under this Agreement except for the limited purpose
of signing Substitution Certificates in accordance with Clause 25.3.
22.2 AUTHORITY
The Agent is authorised to exercise the rights, powers, discretions and
duties which are specified by the Financing Documents. The Agent may also
act in a manner reasonably incidental to these matters.
22.3 DUTIES
In addition to the obligations of the Agent set out elsewhere in the
Financing Documents the Agent agrees as follows:
(A) NOTICES: The Agent will as soon as reasonably practicable notify each
Lender of the contents of each notice received from a Company under
the terms of a Financing Document. If the notice only affects
particular Lenders the Agent may elect to notify only those Lenders,
in which case it will do so as soon as reasonably practicable.
(B) OTHER DOCUMENTS: When a Company delivers to the Agent any other
document required to be delivered under a Financing Document the Agent
will as soon as reasonably practicable provide a copy to each Lender.
The Borrower agrees to reimburse the Agent for the costs of preparing
any copies required for this purpose.
(C) TERMINATION EVENTS: The Agent will notify each Lender of any
Termination Event or Potential Termination Event. This obligation will
not arise, however, until the Agent receives express notice with
reasonable supporting evidence of the Termination Event or Potential
Termination Event. Until this time the Agent is entitled to assume
that there is no Termination Event or Potential Termination Event. The
Agent is not required to make inquiries. Information referred to in
Clause 22.11 does not have to be disclosed under this sub-clause.
(D) INFORMATION: The Agent will request the Borrower to deliver to the
Agent under Clause 18.3 any information reasonably requested by a
Lender.
22.4 POWERS
In addition to the powers of the Agent set out elsewhere in the Financing
Documents the Agent has the following powers:
(A) PROFESSIONAL ADVISERS: The Agent may instruct professional advisers to
provide advice in connection with the Facilities.
(B) AUTHORITY FROM INSTRUCTING GROUP: The Agent may take any action which
is not inconsistent with the Financing Documents and which is
authorised by an Instructing Group.
(C) VIEWS OF INSTRUCTING GROUP: In exercising any of its rights, powers or
discretions the Agent may seek the views of an Instructing Group. If
it exercises those rights, powers or discretions in accordance with
those views the Agent will incur no liability.
(D) PROCEEDINGS: The Agent may institute legal proceedings against a
Company in the name of those Lenders which authorise it to take those
proceedings.
(E) COMPLIANCE WITH LAW: The Agent may take any action necessary for it to
comply with applicable laws.
(F) HEDGING AND OVERDRAFTS: The Agent may sign any Hedging Bank Agreement
or Overdraft Bank Agreement and the Subordinated Loan Agreement.
The Agent is not required to exercise any of these powers and will incur no
liability if it fails to do so. In the context of legal proceedings the
Agent may decline to take any step until it has received indemnities or
security satisfactory to it.
22.5 RELIANCE
The Agent is entitled to rely upon each of the following:
(A) Advice received from professional advisers.
(B) A certificate of fact received from a Company and signed by an
Authorised Person.
(C) Any communication or document believed by the Agent to be genuine. The
Agent will not be liable for any of the consequences of relying on
these items.
22.6 EXTENT OF AGENT'S DUTIES
(A) NO OTHER DUTIES: The Agent has no obligations or duties other than
those expressly set out in the Financing Documents, the Hedging Bank
Agreements and the Overdraft Bank Agreements.
(B) ILLEGALITY AND LIABILITY: The Agent is not obliged to do anything
which is illegal or which may expose it to liability to any person.
(C) NOT TRUSTEE: The Agent is not acting as a trustee for any purpose in
connection with this Agreement, except for its role described in
Clause 22.13, 22.14 and 22.15, and as described in the Hedging Bank
Agreements and Overdraft Bank Agreements.
22.7 RESPONSIBILITY OF THE LENDERS
Each Lender is responsible for its own decision to become involved in the
Facilities and its decision to take or not take action under the
Facilities. It should make its own credit appraisal of each Company and
the terms of the Facilities. Neither the Agent nor either of the Arrangers
makes any representation that any information provided to a Lender before,
on or after the date of this Agreement is true. Accordingly each Lender
should take whatever action it believes is necessary to verify that
information. In addition neither the Agent nor either Co-arranger is
responsible for the legality, validity or adequacy of any Financing
Document or the efficacy of the Security under the Charges. Each Lender
will satisfy itself on these issues.
22.8 LIMITATION OF LIABILITY
(A) AGENT: The Agent will not be liable to the Lenders for any action or
non-action under or in connection with the Financing Documents unless
caused by its gross negligence or wilful misconduct.
(B) DIRECTORS, EMPLOYEES AND AGENTS: No director, employee or agent of the
Agent will be liable to a Lender or a Company in relation to the
Financing Documents. Each Lender and each Company agrees not to seek
to impose this liability upon them.
22.9 BUSINESS OF THE AGENT
Despite its role as agent of the Lenders the Agent may:
(A) participate as a Lender in the Facilities or as a Hedging Bank or an
Overdraft Bank,
(B) carry on all types of business with any Company, and
(C) act as agent for other groups of lenders to any Company or other
borrowers.
22.10 INDEMNITY
Each Lender agrees to reimburse the Agent for all losses and expenses
incurred by the Agent as a result of its appointment as Agent or arising
from its activities as Agent. These losses and expenses will take into
account amounts reimbursed to the Agent by the Borrower. The liability of
each Lender under this sub-clause will be limited to the share of the total
losses and expenses which corresponds to that Lender's share of the
Commitments or, if an Advance has been made and is outstanding, the Loan.
If the losses or expenses are attributable to an activity of the Agent
which relates to only some of the Lenders the Agent may instead notify the
Lenders of a different sharing arrangement. In this case the limit of
liability of a Lender under this sub-clause will be determined by the
Agent. The Lenders are not liable for losses and expenses arising from the
gross negligence or willful misconduct of the Agent.
22.11 CONFIDENTIAL INFORMATION
The Agent is not required to disclose to the Lenders any information:
(A) which is not received by it in its capacity as Agent, or
(B) which it receives, with its consent, on a confidential basis.
22.12 RESIGNATION AND REMOVAL
The Agent may resign by giving notice to the Borrower and the Lenders. The
Agent may be removed by notice given by an Instructing Group to the Agent
and the Borrower. In either event the following apply:
(A) APPOINTMENT BY INSTRUCTING GROUP: An Instructing Group may appoint a
new Agent after consultation with the Borrower.
(B) APPOINTMENT BY THE RESIGNING AGENT: If the Agent has resigned and the
Instructing Group has not appointed a new Agent within 30 days after
the
resigning Agent's notice, the resigning Agent may appoint a new Agent
after consultation with the Borrower.
(C) MODE OF APPOINTMENT: A new Agent will be appointed by notice to the
Borrower and the Lenders. A new Agent cannot be appointed without its
consent.
(D) TIMING OF APPOINTMENT: If the Agent has resigned, the new Agent will
become Agent at a time agreed between the new Agent and the resigning
Agent. If no time is agreed the new Agent will become Agent 10
Business Days after the notice referred to in paragraph (C). Any
resignation or removal of the Agent will not be effective until a new
Agent has been appointed and accepted its appointment.
(E) EFFECT OF APPOINTMENT: Upon a new Agent becoming Agent the
resigning/removed Agent will cease to be Agent. Accordingly it will be
discharged from its obligations and duties as Agent. It will, however,
continue to be able to rely on the terms of this Clause in respect of
all matters relating to the period of its appointment. The new Agent
will assume the role of Agent. It will have all the rights, powers,
discretions and duties of the Agent provided for in this Agreement.
(F) TRANSITION: The resigning/removed Agent and the new Agent agree to co-
operate to ensure an orderly transition. The resigning/removed Agent
agrees to deliver or make available to the new Agent all records,
files and information held by it as Agent. This obligation will not
require the resigning/removed Agent to disclose any confidential
information. the resigning/removed Agent also agrees to transfer the
benefit of the Charges, and all rights relating to the Charges, to the
new Agent. The Borrower agrees to co-operate, to the extent reasonably
necessary, with this transfer. If required by the new Agent the
Borrower agrees to execute new Charges in favour of the new Agent on
identical terms as the then existing Charges.
22.13 OBLIGATION TO PAY TO THE AGENT
Each Company agrees to pay to the Agent on demand each amount due and
payable by that Company to a Lender under any of the Financing Documents.
This obligation will be satisfied to the extent that the amount is paid to
the Lender in accordance with Clause 12.4. It does not affect the rights
of the Lender or the obligation of the Company to the Lender. A payment of
an amount under this sub-clause will, however, satisfy that Company's
obligation to pay that amount to the Lender.
22.14 HOLDING AS SECURITY TRUSTEE
The Agent agrees that it holds the benefit of:
(A) Clause 22.13; and
(B) the Charges and all Security arising from the Charges,
as trustee on behalf of:
(i) the Lenders;
(ii) each Hedging Bank which executes a Hedging Bank Agreement in
accordance with Clause 20.1(CC)(ii); and
(iii) each Overdraft Bank.
All the Agent's rights and claims arising under the items mentioned in
paragraphs (A) and (B) are vested in it on this basis.
22.15 SECURITY
(A) PERFECTION OF SECURITY AND TITLE: The Agent:
(i) is not liable for any failure, omission or defect in perfecting
the Security constituted by any Charge;
(ii) may accept without enquiry the title to the property over which
Security is intended to be created by any Charge.
(B) CUSTODY: The Agent is not under any obligation to hold any title
deeds, security documents or any other documents in connection with
the property charged by any Charge or to take any steps to protect or
preserve these documents. The Agent may permit a Company to retain all
these documents in its possession or may deposit them with a nominee
or custodian. This paragraph does not apply to documents held in
relation to a legal mortgage over, or over an interest in, real
property or shares.
22.16 THE ARRANGERS
The Arrangers have no continuing role in connection with the Facilities
and are not liable in respect of any matter concerning the Facilities.
They are not the agents for any Lender.
22.17 CONFIRMATION OF EACH LENDER
Each Lender confirms to the Agent that, unless it notifies the Agent to
the contrary, it will be the beneficial owner of any interest paid to it
under this Agreement and it is a bank for purposes of section 349(3)of the
Income and Corporation Taxes Act 1988 and will be within the charge to
United Kingdom corporation tax in respect of that interest.
23. EVIDENCE AND CERTIFICATES
23.1 EVIDENCE OF DEBT
The Agent will maintain in its books an account showing all liabilities
accrued and payments made in relation to the Financing Documents. Details
of amounts outstanding recorded in this account will be evidence of each
Company's obligations unless there is shown to be an error.
23.2 CERTIFICATES
Each certificate delivered under this Agreement must contain reasonable
detail of the matters being certified. Certificates delivered by the Agent
or a Lender will be evidence unless there is shown to be an obvious error.
24. NOTICES
24.1 NATURE OF NOTICES
No notice delivered by a Company under this Agreement may be withdrawn or
revoked. Each notice delivered by a Company must be unconditional. It
must also be signed by an Authorised Person.
24.2 DELIVERY OF NOTICES
A notice under this Agreement will only be effective if it is in writing
and is received. Telexes and faxes are permitted.
24.3 NOTICES THROUGH THE AGENT
Each notice from a Company or a Lender will be delivered to the Agent. The
Agent agrees to pass on the details of notices received by it to the
appropriate recipient as soon as reasonably practicable.
24.4 ADDRESS DETAILS
Notices will be delivered to the address of the intended recipient as set
out on the signature page. A Company or a Lender may change its address
details by notice to the Agent. The Agent may change its address details
by notice to each Company and each Lender.
25. ASSIGNMENT AND NOVATION
25.1 COMPANY
The rights of a Company under this Agreement are personal to it.
Accordingly they are not capable of assignment.
25.2 ASSIGNMENT BY A LENDER
A Lender may assign in whole or in part its rights under this Agreement if:
(A) At the same time the proposed assignee assumes the whole or (as the
case may be) the relevant part of the Lender's obligations under this
Agreement to the satisfaction (acting reasonably) of the Agent and the
Borrower;
(B) It is assigning an amount of its Facility A Commitments and an amount
of its Facility B Commitments which when these amounts are expressed as
a proportion of, in the case of Facility A Commitments, the Total
Facility A Commitments and, in the case of Facility B Commitments, the
Total Facility B Commitments, results in the same figure; and
(C) The principal amount to be assigned (or, in the case of an amount in
the Optional Currency, the Original Sterling Amount) must equal or
exceed (Pounds)2,500,000 (or be the remaining amount of its Facility A
Commitment and Facility B Commitment).
(D) It obtains the written consent of the Borrower in advance. The Borrower
agrees that it will not unreasonably withhold this consent. If the
Borrower does not reply
to a written request for consent within 10 Business Days it will be
treated as having given its consent. No consent is required where the
assignment:
(i) is to another Lender;
(ii) is to an affiliate or Subsidiary or Holding Company of the
assignor;
(iii) occurs when there is an outstanding Termination Event; or
(iv) is part of the syndication process arranged by the Arrangers.
Neither the Agent nor any Lender will be obliged to treat any person to
whom a Lender makes an assignment as an assignee until that person agrees
to pay to the Agent the fee mentioned in Clause 25.3(D).
25.3 NOVATION BY A LENDER
A Lender (the "EXISTING LENDER") may be released from its obligations and
surrender its rights under this Agreement to the extent that exactly
corresponding obligations and rights are assumed by another lender (the
"NEW LENDER") in accordance with the following:
(A) The Existing Lender must novate an amount of its Facility A
Commitments and an amount of its Facility B Commitments which when
these amounts are expressed as a proportion of, in the case of
Facility A Commitments, the Total Facility A Commitments and, in the
case of Facility B Commitments, the Total Facility B Commitments,
results in the same figure.
(B) The principal amount to be novated (or, in the case of an amount in
the Optional Currency, the Original Sterling Amount) must equal or
exceed (Pounds)2,500,000 (or be the remaining amount of its Facility A
Commitment and Facility B Commitment).
(C) The Existing Lender must obtain the prior written consent of the
Borrower to the proposed novation. The Borrower agrees that it will
not unreasonably withhold this consent. If the Borrower does not reply
to a written request for consent within 10 Business Days it will be
treated as having given its consent. No consent is required where the
novation:
(i) is to another Lender;
(ii) is to an affiliate or Subsidiary or Holding Company of the
assignor;
(iii) occurs when there is an outstanding Termination Event; or
(iv) is part of the syndication process arranged by the Arrangers.
(D) Once the Borrower's written consent is obtained (or treated as
obtained), the Existing Lender will deliver to the Agent a
Substitution Certificate. This must be signed by both the Existing
Lender and the New Lender and be properly completed. It must have
attached to it the Borrower's consent. Alternatively it must have
attached to it the Existing Lender's request for a consent and a
certificate of an officer of the Existing Lender to the effect that
such request was received by the Borrower and that no reply was
received within 10 Business Days. The Existing Lender will also
arrange for the payment of a processing fee to the Agent. The amount
of this fee is (Pounds)750 (plus any reasonable expenses) unless the
Agent has notified the Lenders of a different amount which has been
agreed with an Instructing Group. No fee is payable where the novation
is part of the syndication process arranged by the Arrangers.
(E) The Agent will sign the Substitution Certificate no later than 5
Business Days after its receipt and the payment of the processing fee.
This signature will be made on behalf of the other Lenders and the
Companies as well as itself. Each Lender and each Company irrevocably
authorises the Agent to sign in this manner.
(F) The Substitution Certificate will take effect on the date it
specifies. On this date:
(i) The Existing Lender is released from its obligations and
surrenders its rights to the extent described in the
Certificate.
(ii) The New Lender assumes obligations and rights exactly
corresponding to those released and surrendered by the Existing
Lender.
The Facility A Commitment and Facility B Commitment of the Existing
Lender will be reduced accordingly and the New Lender will assume a
Facility A Commitment and Facility B Commitment of the amount of the
corresponding reduction.
25.4 DISCLOSURE OF INFORMATION
A Lender may disclose to an assignee or New Lender, or to a proposed
assignee or New Lender, any information received by the Lender under or in
connection with the Financing Documents, including a copy of each of those
documents. A Lender may not disclose this information to any of these
persons unless that person has executed a confidentiality undertaking
substantially in the form set out in Schedule 7.
25.5 LIMITATION ON CERTAIN OBLIGATIONS OF BORROWER
This sub-clause applies to any novation or assignment by a Lender and any
change of office through which a Lender is acting. If, at the time it is
effected, circumstances exist which would oblige the Borrower to pay to the
New Lender, assignee or Lender under Clause 11 any sum in excess of the sum
(if any) which it would have been obliged to pay to the Existing Lender,
assignor or that Lender under Clause 11 in the absence of that novation,
assignment or change, the Borrower shall not be obliged to pay that excess.
26. WAIVERS, AMENDMENTS AND RELEASES OF SECURITY
26.1 WRITING REQUIRED
A waiver or amendment of a term of this Agreement will only be effective if
it is in writing.
26.2 AUTHORITY OF THE AGENT
If authorised by an Instructing Group the Agent may grant waivers and agree
amendments of any Financing Document with any Company. These waivers and
amendments will be granted on behalf of the Lenders and be binding on all
of them, including those which were not part of the Instructing Group.
This sub-clause does not authorise the Agent to grant any waiver or agree
any amendment affecting any of the following:
(A) The identity of any Company.
(B) The amount of the Facilities.
(C) The amount or method of calculation of interest or commitment fee.
(D) The manner, currency or timing of repayment of the Loan or of the
payment of any other amount.
(E) The definition of "Facility A Commitment Availability Termination
Date" or "Facility Termination Date".
(F) The definition of "Instructing Group", "Restricted Subsidiary" or
"Unrestricted Subsidiary".
(G) The obligations of the Lenders.
(H) Any requirement (including the one in this sub-clause) that all the
Lenders or a certain proportion of them consent to a matter or deliver
a notice.
(I) Clauses 3, 14 or 25.1.
(J) Subject to Clause 26.3, the release of any Security constituted by the
Charges.
(K) This Clause 26.2
Waivers or amendments affecting these matters require the consent of all
Lenders.
26.3 RELEASE OF SECURITY FOR PERMITTED DISPOSALS
The Agent is authorised by the Lenders to effect the release of any
Security constituted by the Charges over any assets which are disposed of
by a member of the Borrower's Restricted Group as permitted by Clause
20.1(D).
26.4 EXPENSES
The Borrower agrees to reimburse the Agent and each Lender for the expenses
they incur as a result of any proposal made by the Borrower to waive or
amend a term of this Agreement or to release any Security.
27. MISCELLANEOUS
27.1 EXERCISE OF RIGHTS
If the Agent or a Lender does not exercise a right or power when it is able
to do so this will not prevent it exercising that right or power. When it
does exercise a right or power it may do so again in the same or a
different manner. The Agent's and the Lenders' rights and remedies under
this Agreement are in addition to any other rights and remedies they may
have. Those other rights and remedies are not affected by this Agreement.
27.2 COUNTERPARTS
There may be several signed copies of this Agreement. There is intended to
be a single Agreement and each signed copy is a counterpart of that
Agreement.
28. LAW
This Agreement is to be governed by and construed in accordance with
English law.
SCHEDULE 1:
LENDERS AND COMMITMENTS
(1) (2) (3)
FACILITY A FACILITY B TOTAL OF
LENDER COMMITMENT* COMMITMENT* COMMITMENTS
(Pounds) (Pounds) (Pounds)
Credit Suisse First Boston 6,666,666.67 3,333,333.33 10,000,000.00
Credit Lyonnais 6,666,666.67 3,333,333.33 10,000,000.00
The Industrial Bank of Japan, Limited 6,666,666.67 3,333,333.33 10,000,000.00
The Royal Bank of Scotland plc 6,666,666.67 3,333,333.33 10,000,000.00
Scotiabank Europe plc 6,666,666.67 3,333,333.33 10,000,000.00
Allied Irish Banks PLC (London Branch) 5,533,333.33 2,766,666.67 8,300,000.00
The Governor and Company of the 5,533,333.33 2,766,666.67 8,300,000.00
Bank of Ireland
The Governor and Company of the 5,533,333.33 2,766,666.67 8,300,000.00
Bank of Scotland
Bayerische Landesbank 5,533,333.33 2,766,666.67 8,300,000.00
Girozentrale, London Branch
De Nationale Investeringsbank N.V., 5,533,333.33 2,766,666.67 8,300,000.00
London Branch
Dexia Project & Public Finance 5,533,333.33 2,766,666.67 8,300,000.00
International Bank, London Branch
The Fuji Bank, Limited 5,533,333.33 2,766,666.67 8,300,000.00
KBC Bank N.V., London Branch 5,533,333.33 2,766,666.67 8,300,000.00
Lloyds Bank Plc 5,533,333.33 2,766,666.67 8,300,000.00
Co-operative Bank p.l.c. 3,373,333.33 1,686,666.67 5,060,000.00
(1) (2) (3)
FACILITY A FACILITY B TOTAL OF
LENDER COMMITMENT* COMMITMENT* COMMITMENTS
(Pounds) (Pounds) (Pounds)
Societe Generale, London Branch 3,373,333.33 1,686,666.67 5,060,000.00
The Sumitomo Bank Limited 3,373,333.33 1,686,666.67 5,060,000.00
The Dai-Ichi Kangyo Bank, Ltd 3,373,333.33 1,686,666.67 5,060,000.00
Ulster Bank Limited 3,373,333.33 1,686,666.67 5,060,000.00
--------------------------------------------------------------------------------------
100,000,000.00 50,000,000.00 150,000,000.00
--------------------------------------------------------------------------------------
* Rounded to two decimal places.
SCHEDULE 2:
COSTS RATE
The Costs Rate is an addition to the interest rate on an Advance to compensate
the Lenders for the cost attributable to an Advance resulting from the
imposition from time to time under or pursuant to the Bank of England Act 1998
(the "ACT") and/or by the Bank of England (or other United Kingdom governmental
or regulatory authorities or agencies) of a requirement to place non-interest
bearing or Special Deposits (whether interest bearing or not) with the Bank of
England and calculated by reference to liabilities used to fund the Advance.
The Costs Rate will be the rate determined by the Agent (and rounded upward, if
necessary, to four decimal places) as the rate resulting from the application
(as appropriate) of the following formula in relation to sterling Advances:
XL + S(L - D) % per annum
-------------
100 - (X + S)
where on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any stated
minimum) by reference to which the Agent is required under or pursuant
to the Act to maintain cash ratio deposits with the Bank of England;
L is the rate of interest (less the Applicable Margin and the Costs
Rate) payable on that day on the related Advance pursuant to Clause 8
of this Agreement;
S is the level of interest-bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which the Lender is required to
maintain by the Bank of England (or other United Kingdom governmental
authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to the
Lender on Special Deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
The Costs Rate attributable to an Advance or other sum for any period shall be
calculated at or about 11.00 a.m. (London time) on the first day of such period
for the duration of such period.
The determination of the Costs Rate in relation to any period shall, in the
absence of manifest error, be conclusive and binding on all parties to this
Agreement.
If there is any change in circumstance (including the imposition of alternative
or additional requirements) which in the reasonable opinion of the Agent renders
or will render the above formula (or any element of the formula, or any defined
term used in the formula) inappropriate or inapplicable, the Agent (following
consultation with the Borrower and an Instructing Group) shall be entitled to
vary the same. Any such variation shall, in the absence of manifest error, be
conclusive and binding on all parties and shall apply from the date specified in
such notice.
For the purposes of this Schedule:
The terms "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" shall bear the meanings
ascribed to them under or pursuant to the Act or by the Bank of England (as may
be appropriate), on the day of the application of the formula.
Any reference to a provision of any statute, directive, order or regulation in
this Schedule is a reference to that provision as amended or re-enacted from
time to time
CONFIRMED COPY
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SCHEDULE 3:
CONDITIONS PRECEDENT TO DRAWING ON OR AFTER THE AMENDMENT DATE
1. A copy of the Memorandum and Articles of Association of the Borrower in the
agreed form. This copy must be certified by a director, the secretary or
the Director of Legal Services of the Borrower to be complete, up-to-date
and in full force and effect.
2. A copy of a resolution of the board of directors of the Borrower approving
the Facilities, authorising the signature and delivery of the Financing
Documents to which it is a party and approving the borrowing of the
aggregate Available Commitments. The resolution must also appoint persons
to sign notices on behalf of the Borrower under the Financing Documents to
which it is a party and a person or persons to sign certificates under the
Financing Documents as a "Certifying Financial Officer" in addition to the
senior financial officer. The copy must be certified by a director, the
secretary or the Director of Legal Services of the Borrower to be a true
copy of duly passed resolutions each of which is in full force and effect.
3. Specimen signatures of all persons authorised by the resolutions referred
to in paragraph 2 above. These signatures must be certified by a director,
the secretary or the Director of Legal Services of the Borrower to be
genuine.
4. A copy of the Memorandum and Articles of Association of the Parent and each
other Guarantor in the agreed form. This copy must be certified by a
director, the secretary or the Director of Legal Services of the Parent and
the relevant Guarantor to be complete, up-to-date and in full force and
effect.
5. A copy of a resolution of the board of directors of the Parent and each
other Guarantor approving the Guarantee and (as applicable) the Charges and
authorising the signature and delivery of the Financing Documents to which
it is a party. The copy must be certified by a director, the secretary or
the Director of Legal Services of the Parent and the relevant Guarantor to
be a true copy of a duly passed resolution which is in full force and
effect.
6. A legal opinion from Xxxxxxxxx and May, English legal advisers to the
Agent, substantially in the form set out in Schedule 8.
7. A letter in the agreed form from the Borrower's insurance brokers addressed
to the Agent (for the benefit of itself and the Lenders) confirming that
the insurance arrangements required by the Financing Documents are in place
with respect to the Borrower's business (including the Analogue
Transmission Business and the DTT Transmission Business), operations and
assets.
8. Property Title Report and Certificates on the material properties (as
identified by the Agent) addressed to the Agent (for the benefit of itself
and the Lenders), in the agreed form.
9. Copies certified by the Borrower as true, complete and up-to-date (or, as
appropriate, executed originals) of the following documents in the agreed
form:
(a) Shareholders' Agreement;
(b) Fee Letters from the Arrangers and the Agent, each counter-signed by
the Borrower;
(c) Supplemental and Amendment Deed;
(d) Deposit Charge Amendment Agreement;
(e) Transmission Agreements;
(f) NTL Site Sharing Agreement;
(g) Contract of Services;
(h) Subordinated Loan Agreement; and
(i) the agreement between the Borrower and CT Finance amending the Inter-
Company Loan Agreement.
10. Share certificates in respect of all the issued share capital in the
Borrower, and blank stock transfer forms duly executed by the Parent in
respect of those share certificates.
11. A copy of the share register of the Borrower showing the Parent as the
registered holder of the entire issued share capital of the Borrower. This
copy must be certified by a director, the secretary or the Director of
Legal Services of the Borrower to be complete and up-to-date, as at the
Amendment Date.
12. Completed Land Registry cover (and the relevant fee in each case) in
respect of the properties listed in Schedule 1 of the debenture described
in paragraph (A) of the definition of "Charges" in Clause 1.1 together
with, in the case of those properties for which an application for first
registration has to be made, all relevant title deeds and documents and the
results of all pre-completion searches including Land Charges Act search
results.
13. The acknowledgements set out in Part 2 of Schedule 3 of the Debenture,
signed on behalf of the BBC and ONDIGITAL respectively.
14. Evidence satisfactory to the Agent of comfort given by CCIC as to
maintenance of support of, and levels of shareholding, in the Borrower
(through the Parent) so as not to entitle the BBC to exercise its right to
terminate the Analogue Transmission Agreement or the BBC DTT Transmission
Agreement on a change of control of the Borrower.
15. Evidence satisfactory to the Agent that ONDIGITAL consents to the charge
taken over the ONDIGITAL Transmission Agreement.
16. The Financial Model addressed to the Agent (for the benefit of itself and
the Lenders).
17. The Hedging Policy.
18. A certificate of the Certifying Financial Officer stating (a) the amount of
Financial Indebtedness on the last day of the Quarter immediately preceding
the date of delivery of this certificate and (b) EBITDA for that Quarter.
19. All share certificates relating to the shares held by the Borrower in
Millennium and blank transfers of these shares executed by the Borrower
with the name of the transferee left blank and stamped.
20. The Year 2000 Programme Report in the agreed form.
21. The letter from the Borrower to the Agent in relation to certain litigation
and dated on or before the Amendment Date.
CONFORMED COPY
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SCHEDULE 4:
FORM OF SUBSTITUTION CERTIFICATE
CASTLE TRANSMISSION INTERNATIONAL LTD.
(Pounds)150,000,000 TERM AND REVOLVING LOAN FACILITIES UNDER LOAN AGREEMENT
DATED 28TH FEBRUARY, 1997 (AS AMENDED)
SUBSTITUTION CERTIFICATE
To: [Name and address of the Agent]
This certificate is delivered to you for the purposes of Clause 25.3 of the Loan
Agreement under which you are currently Agent.
Name of Existing Lender: ____________________________
Name of New Lender: ____________________________
Details of substitution:
[Insert details distinguishing between Facilities and between undrawn commitment
and participation in the Loan and other amounts due under the Facility]
Date of effect of substitution: ____________________
The substitution described above will take effect in accordance with Clause 25.3
of the Loan Agreement.
The Existing Lender and the New Lender agree as follows:
1. The New Lender is responsible for its own decision to become involved in
the Facilities. It should make its own credit appraisal of the Companies
and the terms of the Facilities. Neither the Existing Lender nor the Agent
makes any representation that any information provided to the New Lender
before, on or after the date of this certificate is true. Accordingly the
New Lender should take whatever action it believes is necessary to verify
that information. In addition neither the Existing Lender nor the Agent is
responsible for the legality, validity or adequacy of the Loan Agreement.
The New Lender will satisfy itself on these issues.
2. There is no obligation on the Existing Lender to accept any novation or
assignment back of the rights and obligations referred to in this
certificate. The Existing Lender accepts no obligation to indemnify the
New Lender for any losses incurred as a result of a failure by the Borrower
or any Guarantor to perform its obligations or for any other losses. The
New Lender acknowledges this is the case.
The New Lender represents that each of the following is true:
(A) In respect of any payment of interest to be made to it, that New Lender
will be, at the date the principal amount on which that interest accrued is
advanced, a bank for the purposes of section 349(3) of the Income and
Corporation Taxes Xxx 0000.
(B) In respect of any payment of interest to be made to it, the person
beneficially entitled to that payment of interest at the time it is paid is
within the charge to United Kingdom corporation tax in respect of that
interest.
The above representations do not apply where the representations would be untrue
as a result of a change in law or Inland Revenue concession or a change in the
interpretation or application of law or Inland Revenue concession.
This certificate is to be governed by and construed in accordance with English
law.
CONFORMED COPY
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Existing Lender New Lender
--------------- ----------
[Name of Existing Lender] [Name of New Lender]
By: By:
Agent (on behalf of the other Lenders, the Companies and itself)
[Name of Agent]
By:
Date:
Notice details for New Lender
(if it is not already a
Lender):
Address:
Fax Number:
Telex Number:
Attention:
CONFORMED COPY
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SCHEDULE 5:
FORM OF NOTICE FOR THE ADVANCE
To: [Name of Agent]
Attention: [ ]
From: Castle Transmission International Ltd. Date: [ ]
Dear Sirs,
(Pounds)150,000,000 TERM AND REVOLVING LOAN FACILITIES UNDER
LOAN AGREEMENT DATED 28TH FEBRUARY, 1997 (AS AMENDED)
1. We refer to the above agreement between yourselves as Agent, us as Borrower
and various other parties (the "Agreement"). Terms defined in the Agreement
have the same meaning in this notice.
2. We would like to draw an Advance under Facility [A]/[B] in [currency] in
the amount of [amount] on [date].
3. The Interest Period should be [ ] months.
4. Please pay the above Advance to account number [ ] with [
] in favour of ourselves.
5. We confirm that, today and on the Advance Date:
(a) the representations in Clause 17.1 of the Agreement [(other than
paragraphs (T) [,] [and (U))] [and (V)]* are true; and
(b) there is [and will be] no outstanding Termination Event [or Potential
Termination Event.]**
6. The purpose of the Advance is [ ].
Yours faithfully,
for and on behalf of
Castle Transmission International Ltd.
---------------
* [Note: The representations in Clause 17.1(T) and Clause 17.1(U) are to be
given on the date of the first Advance on or after the Amendment Date. The
representation in Clause 17.1(V) is to be given on the making of each
Advance which falls on or before 31st March, 2000.
** [Note: The statement in square brackets will not be required to be made
where the notice is given to roll over an existing Advance (without
increasing the amount of this Advance) for an Interest Period of no more
than one month at any time when no Termination Event has occurred and is
continuing.]
CONFORMED COPY
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SCHEDULE 6:
FORM OF ADDITIONAL GUARANTOR AGREEMENT
ADDITIONAL GUARANTOR AGREEMENT
------------------------------
DATE :
PARTIES
1. [ ], a company incorporated in [ ]
(number [ ]), of [address] (the "NEW GUARANTOR")
2. CASTLE TRANSMISSION INTERNATIONAL LTD., a company incorporated in England
(number 3196207) whose registered office is at Warwick Technology Park,
Gallows Hill, Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX, on its own behalf and on
behalf of each of the existing Guarantors (each as defined in the Loan
Agreement referred to below)
3. CREDIT SUISSE FIRST BOSTON (the "AGENT"), on its own behalf and on behalf
of each of the Lenders (as defined in the Loan Agreement)
BACKGROUND
A Loan Agreement (the "LOAN AGREEMENT") was made on 28th February, 1997 (and
amended on 21st May, 1997 and on 18th June, 1999) between (1) Castle
Transmission International Ltd. as borrower, (2) Castle Transmission Services
(Holdings) Ltd. as guarantor, (3) the lenders named in the Loan Agreement, (4)
Credit Suisse First Boston as Agent, (5) Credit Suisse First Boston as lead
arranger and others. Under the terms of the Loan Agreement the Lenders agreed
to provide to the Borrower a (Pounds)150,000,000 credit facility.
Under Clause 20.1(R) of the Loan Agreement the New Guarantor needs to become a
guarantor.
The parties agree as follows:
1. INTERPRETATION
Unless a contrary intention is indicated, words and expressions defined in
the Loan Agreement will have the same meanings when used in this Agreement.
References to the Loan Agreement are to that agreement as amended or
supplemented.
2. INCORPORATION OF ADDITIONAL GUARANTOR
With effect from the date of this Agreement the New Guarantor will:
(a) become a party to the Loan Agreement as if it had been an original
signatory as a guarantor; and
(b) become a "Guarantor" within the definition in Clause 1.1 of the Loan
Agreement.
The New Guarantor, each other Company, each Lender and the Agent agrees to
be bound by the Loan Agreement on this basis.
3. REPRESENTATIONS BY THE NEW GUARANTOR
The New Guarantor confirms in respect of itself that the representations in
Clause 17.1(A) to (L) inclusive of the Loan Agreement if stated at the date
of this Agreement with reference to the New Guarantor and the facts
subsisting on the date of this Agreement, are true.
CONFORMED COPY
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4. CONSTRUCTION
This Agreement and the Loan Agreement will be read and construed as one
document. References in the Loan Agreement to the Loan Agreement (however
expressed) will be read and construed as references to the Loan Agreement
and this Agreement.
5. NOTICES
The notice details of the New Guarantor for the purpose of Clause 24.4 are
as follows:
[ ]
Fax number: [ ]
Telex number: [ ]
Attention: [ ]
6. LAW
This Agreement is to be governed by and construed in accordance with
English law. The New Guarantor intends to execute this Agreement as a deed
and agrees to execute and deliver it as a deed. [Jurisdiction clause and
appointment of agent for the service of process to be inserted in the case
of a New Guarantor incorporated outside England.]
SIGNATURES
[Name of New Guarantor]
Executed as a deed by the signatures
of a director and the secretary or of
two directors of the company
By: (Director)
By: (Director/Secretary)
Castle Transmission International Ltd.
By:
[Name of Agent]
By:
CONFORMED COPY
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SCHEDULE 7:
FORM OF CONFIDENTIALITY UNDERTAKING
Castle Transmission International Ltd. (the "BORROWER")
(Pounds)150,000,000 TERM AND REVOLVING LOAN FACILITIES UNDER LOAN AGREEMENT
DATED 28TH FEBRUARY, 1997 (AS AMENDED) (THE "FACILITY AGREEMENT")
In connection with your interest in the (Pounds)150,000,000 term and revolving
Loan Facilities for the Borrower (the "FACILITIES") constituted by the Facility
Agreement, you (the "RECIPIENT") may be provided with certain information and
material by ourselves (being an existing lender (the "EXISTING LENDER") under
the Facilities.
The Recipient agrees with the Existing Lender (for itself and as trustee for the
benefit of the Borrower) that:
1. For the purposes of this confidentiality agreement, "CONFIDENTIAL
INFORMATION" means all information disclosed by the Existing Lender (or any
of its agents, representatives or advisers) concerning the Facilities, the
Borrower or any member of the group of companies of which the Borrower is a
member. However, it does not include information which (i) is already in
the Recipient's possession at the time of disclosure, or (ii) is at the
time of its disclosure, or which later becomes, part of the public domain.
2. The Recipient will treat the Confidential Information, and the fact that
negotiations are taking place, as confidential. The Recipient agrees to
disclose the Confidential Information only to those of the Recipient's
agents, representatives and advisers who need the Confidential Information
for the purpose of evaluating the Facilities. The Confidential Information
shall not be used by any such person for any other purpose.
3. The Recipient will return (or, as regards Confidential Information
disclosed to its agents, representatives and advisers, endeavour to return)
the Confidential Information to the Existing Lender, without retaining any
copies or summaries of it, promptly upon the written request of the
Existing Lender. Alternatively the Recipient may promptly arrange for the
destruction of the Confidential Information and supply written evidence to
the Existing Lender of such destruction. However, to the extent that
Confidential Information has been incorporated (either fully or partially)
into analyses, compilations, studies or other documents prepared by the
Recipient, the Recipient need not return or destroy that information
provided that it treats that information as confidential in accordance with
paragraph 2 above.
4. The Recipient (or any of its agents, representatives or advisers) may be
required to disclose Confidential Information for the purposes of any
judicial, administrative or governmental proceeding. In this case the
Recipient will promptly notify the Existing Lender and the Borrower.
However, if on legal advice the Recipient (or any of its agents,
representatives or advisers) is compelled to make disclosure of
Confidential Information or else stand liable for contempt or other censure
or penalty, it is not under any obligation to delay disclosure (i) in order
to notify the Existing Lender and the Borrower before disclosure, if giving
that notice before disclosure is not practicable, or (ii) once it has
notified the Existing Lender and the Borrower, for any reason whatever.
5. Any questions concerning the Confidential Information must be directed by
the Recipient exclusively to the Existing Lender. The Recipient will not
approach the Borrower or any member of its group without prior written
consent of the Existing Lender.
6. The Recipient understands that the Existing Lender (and its agents,
representatives or advisers) is not making any representation or warranty
as to the accuracy or completeness of the Confidential Information, and
neither, save to the extent set out in the Facility
CONFORMED COPY
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Agreement, is the Borrower or any other member of the group of companies of
which the Borrower is a member. The Existing Lender (for itself and on
behalf of its agents, representatives and advisers and, save to the extent
set out in the Facility Agreement, the Borrower and the other members of
the group of companies of which the Borrower is a member) disclaims any and
all liability arising from the Recipient's use of the Confidential
Information.
7. The obligations imposed on the parties under this confidentiality agreement
will terminate on the date two years after the date on which the Recipient
signs this confidentiality agreement below.
8. This confidentiality agreement shall be governed by and construed in
accordance with English law, and the Recipient hereby irrevocably submits
for the benefit of the Existing Lender, the Borrower and the other members
of the group of companies of which the Borrower is a member to the
jurisdiction of the courts of England in connection with any dispute
related to or brought under it.
...............................................
For and on behalf of
[Existing Lender] (on its own
behalf and as trustee for the
benefit of the Borrower and the
other members of the group
of companies of which the
Borrower is a member)
...............................................
For and on behalf of
[Recipient]
Date .......................................
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SCHEDULE 8:
FORM OF OPINION OF XXXXXXXXX AND MAY
Credit Suisse First Boston,
Five Xxxxx Xxxxxx,
Xxxxxx, X00 0XX.
for itself as Agent and for the Lenders
(as defined in the Loan Agreement referred to below)
Dear Sirs,
INTRODUCTION
1. We refer to:
(B) the "LOAN AMENDMENT AGREEMENT", being the loan amendment agreement
dated [ ] June, 1999 and made between (1) Castle Transmission
International Ltd. (formerly known as Castle Transmission Services
Ltd.) (the "BORROWER"), (2) Castle Transmission Services (Holdings)
Ltd. (the "PARENT") and Millennium Communications Limited
("MILLENNIUM") (both known as the "GUARANTORS"), (3) the Lenders
listed in Schedule 1 to the Loan Amendment Agreement (the "LENDERS"),
(4) Credit Suisse First Boston as lead arranger, (5) [ ] as arrangers
and (6) Credit Suisse First Boston as agent, amending the
(Pounds)162,500,000 term and revolving facilities agreement dated 28th
February, 1997 as amended to a (Pounds)64,000,000 revolving facilities
agreement on 21st May, 1997 and as acceded to by Millennium with
effect from 27th October, 1998 (the "LOAN AGREEMENT");
(C) the "SUPPLEMENTAL AND AMENDMENT DEED", being the supplemental and
amendment deed dated [ ] June, 1999 made between (1) the Borrower, (2)
the Parent, (3) Millennium, and (4) Credit Suisse First Boston as
agent, amending the debenture dated 28th February, 1997 which was made
between the same parties (except Millennium) and acceded to by
Millennium with effect from 27th October, 1998 (the "DEBENTURE"); and
(D) the "DEPOSIT CHARGE AMENDMENT AGREEMENT" being the deposit charge
amendment agreement dated [ ] June, 1999 amending the deposit
agreement and charge on cash deposits dated 28th February, 1997, as
amended on 21st May, 1997, made between (1) Credit Suisse First Boston
(as trustee for the Lenders) and (2) the Borrower (the "DEPOSIT CHARGE
AGREEMENT").
2. Terms and expressions defined in the Loan Amendment Agreement, the
Supplemental and Amendment Deed and the Deposit Charge Amendment Agreement
(the "DOCUMENTS") which are not otherwise defined in this opinion have the
same meanings when used in this opinion.
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3. We have acted as English legal advisers on your behalf in connection with
the Documents.
4. This letter sets out our opinion on certain matters of English law as at
today's date. We have not made any investigation of, and do not express
any opinion on, any other law. This letter is to be construed in accordance
with English law.
DOCUMENTS AND INVESTIGATIONS
----------------------------
5. For the purposes of this letter, we have examined the following:
(A) A signed copy of the Loan Amendment Agreement and the Deposit Charge
Amendment Agreement and an executed copy of the Supplemental and
Amendment Deed.
(B) A copy of each of the Loan Agreement, the Debenture, and the Deposit
Charge Agreement (in each case, in the form in effect immediately
before the signing and execution of the Documents).
(C) A copy, certified by the company secretary of the Borrower to be a
true, complete and up-to-date copy, of the Memorandum and Articles of
Association of the Borrower.
(D) A copy, certified by the company secretary of the Parent to be a true,
complete and up-to-date copy, of the Memorandum and Articles of
Association of the Parent.
(E) A copy, certified by the company secretary of Millennium to be a true,
complete and up-to-date copy, of the Memorandum and Articles of
Association of Millennium.
(F) A copy, certified by the company secretary of the Borrower to be a
true, complete and up-to-date copy, of resolutions of a meeting of the
board of directors of the Borrower held on [ ], 1999.
(G) A copy, certified by the company secretary of the Parent to be a true,
complete and up-to-date copy, of resolutions of a meeting of the board
of directors of the Parent held on [ ], 1999.
(H) A copy, certified by the company secretary of Millennium to be a true,
complete and up-to-date copy, of resolutions of a meeting of the board
of directors of Millennium held on [ ], 1999.
(I) The entries shown on the microfiches (obtained by us from Companies
House, London on [ ] June, 1999) of the file of each of the
Borrower, the Parent and Millennium maintained at Companies House (the
"MICROFICHES").
(J) The certificates (the "MILLENNIUM SHARE CERTIFICATES") in respect of
the shares (the "MILLENNIUM SHARES") held by the Borrower in
Millennium.
ASSUMPTIONS
-----------
6. For the purposes of this letter, we have assumed each of the following:
(A) (i) The information disclosed by the Microfiches, by our searches on
[ ] June, 1999 of the Companies House database (CH Direct)
and by our [telephone][personal] search on [ ] June, 1999 at
the Central Registry of Winding-up Petitions in relation to the
Borrower, the Parent and Millennium was then accurate and
complete and has not since then been altered or added to.
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(ii) The Microfiches and such enquiries did not fail to disclose any
information relevant for the purposes of this opinion.
(B) The board minutes referred to in sub-paragraphs 5(F), (G) and (H)
truly record the proceedings described therein of duly convened,
constituted and quorate meetings of the boards of directors of each of
the Borrower, the Parent and Millennium, respectively, these boards of
directors were acting in the best interests and for the proper
purposes of the Borrower, the Parent and Millennium, and the meetings
were duly held and the resolutions passed and authorisations given at
those meetings have not subsequently been amended, revoked or
superseded.
(C) None of the Borrower, the Parent or Millennium has passed any
voluntary winding up resolution, no petition has been presented or
order made by a court for the winding up, dissolution or
administration of the Borrower, the Parent or Millennium and no
receiver, administrative receiver, trustee, administrator or similar
officer has been appointed in relation to the Borrower, the Parent or
Millennium or any of their assets or revenues.
(D) Each of the parties to the Documents (other than the Borrower, the
Parent and Millennium) has the capacity, power and authority to sign
or execute and deliver the Documents and to exercise its rights and
perform its obligations under the Documents.
(E) All documents submitted to us as copies conform with the originals.
(F) All signatures are genuine.
(G) Each of the Documents has been duly signed or executed and
unconditionally delivered by each of the parties thereto.
(H) That no law of any jurisdiction outside England would render such
execution or delivery illegal or ineffective and that, in so far as
any obligation under the Documents falls to be performed in, or is
otherwise subject to, any jurisdiction other than England, its
performance will not be illegal or ineffective by virtue of the law of
that jurisdiction.
(I) The Supplemental and Amendment Deed and the Deposit Charge Amendment
Agreement will be delivered for registration with the Registrar of
Companies in accordance with Part XII of the Companies Xxx 0000 as
recommended in paragraph 8(A) below, and that the Supplemental and
Amendment Deed will be delivered for registration with H.M. Land
Registry as recommended in paragraph 8(B) below.
(J) The execution and delivery of the Loan Amendment Agreement, the
Supplemental and Amendment Deed by each of the Borrower, the Parent
and Millennium is (i) in the furtherance of the objects authorised by
the Parent's and Millennium's memorandum of association, and (ii) to
the commercial advantage and in the interests of the Borrower, the
Parent and Millennium.
(K) All matters set out as assumptions and contained in paragraph 6 of the
opinion set out in a letter to you of 28th February, 1997 and in
paragraph 6 of the opinion set out in a letter to you of 21st May,
1997.
(L) That the Millennium Shares have been duly transferred by Crown Castle
International Corporation ("CCIC") to the Borrower and that CCIC was
immediately before such transfer, and the Borrower is, immediately
after such transfer, the absolute legal and beneficial owner of the
Millennium Shares.
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(M) That the Millennium Share Certificates are the only certificates in
respect of the Millennium Shares and that the Millennium Shares
referred to in those Millennium Share Certificates represent the whole
of the issued share capital of Millennium.
OPINION
-------
7. Based on and subject to the foregoing, and subject to the reservations
mentioned in paragraph 8 (below) and to any matters not disclosed to us, we
are of the opinion that:
(A) Each of the Borrower, the Parent and Millennium is a limited liability
company duly incorporated and validly existing under English law and
has all requisite corporate power and authority to enter into and
perform its obligations under the Documents to which it is a party.
(B) All necessary corporate action required to authorise the execution,
delivery and performance by each of the Borrower, the Parent and
Millennium of the Documents to which it is a party has been taken.
(C) The Loan Agreement (as amended by the Loan Amendment Agreement,
together the "AMENDED LOAN AGREEMENT"), the Debenture (as amended by
the Supplemental and Amendment Deed, together the "AMENDED DEBENTURE")
and the Deposit Charge Agreement (as amended by the Deposit Charge
Amendment Agreement, together the "AMENDED DEPOSIT CHARGE AGREEMENT")
create valid and binding obligations under English law of the Borrower
and (as regards the Amended Loan Agreement and the Amended Debenture)
of the Parent and Millennium.
(D) The following security rights have, among others, been created by the
Amended Debenture:
(i) a legal mortgage over each of the real properties described in
Schedule 1 to the Amended Debenture;
(ii) an equitable fixed charge over the other real property of the
Borrower, the Parent and Millennium;
(iii) an equitable fixed charge over the Millennium Shares and the
shares in the Borrower held by the Parent (together with the
Millennium Shares, the "SHARES");
(iv) an equitable fixed charge over the Borrower's rights to payment
under or in connection with the Transmission Agreements;
(v) an equitable fixed charge over the sums standing from time to
time to the credit of the Account (as defined in the Amended
Deposit Charge Agreement); and
(vi) a floating charge over the undertaking, property and assets of
the Borrower, the Parent and Millennium.
(E) It is not necessary, in order to ensure the validity of the Documents
or the security referred to therein to obtain any authorisation,
consent, approval, licence or permission of, or to effect any filing,
declaration or registration with, any governmental authority of
England, save as provided in paragraphs 8(A) and (B) below.
RESERVATIONS
------------
8. Our reservations are as follows:
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(A) A company registered under the Companies Xxx 0000 (the "ACT") must, in
order to ensure that certain classes of security over its assets are
not rendered void against the liquidator or any creditor of the
company, deliver the instrument creating or evidencing the security,
together with the prescribed particulars thereof, to the Registrar of
Companies for registration within 21 days after the creation of such
security. Each of the Borrower and the Parent and Millennium is
registered under the Act. The classes of security which must be
registered include a charge on land, a charge on book debts and a
floating charge on the company's undertaking or property. In respect
of a charge on shares, although the better view is that a fixed charge
over shares is not included in the classes of security which must be
registered, it is recommended that registration of such a charge
should be effected because it could constitute a charge on book debts
(namely the dividends arising under the shares). There is no
procedure under the Act for registering variations to prescribed
particulars delivered to the Registrar of Companies under the Act.
However, we would recommend that details of the Supplemental and
Amendment Deed and the Deposit Charge Amendment Agreement (together
with an original executed copy of the Supplemental and Amendment Deed
and of the Deposit Charge Amendment Agreement) be submitted to the
Registrar of Companies for registration.
(B) Prior to the registration at H.M. Land Registry of a charge by way of
legal mortgage created over property registered at H.M. Land Registry,
that charge takes effect in equity only. In order that the mortgagee
obtains the rights and powers of a legal mortgage, the charge would
need to be delivered for registration at H.M. Land Registry, together
with a duly completed application form and fee and the relevant land
or charge certificate, and the mortgagee would need to be registered
as proprietor of such charge. The registration at H.M. Land Registry
of the charge by way of legal mortgage created over the property set
out in Part 1 of Schedule 1 to the Amended Debenture has already been
effected. However, because the Supplemental and Amendment Deed varies
the Debenture we would recommend that an original executed copy of the
Supplemental and Amendment Deed be submitted to H.M. Land Registry for
registration. The execution of the Supplemental and Amendment Deed
will, in any event, require registration at H.M. Land Registry to be
made in respect of the charge by way of legal mortgage created over
the property set out in Part 2 of Schedule 1 to the Amended Debenture.
The Agent will not have, and may not exercise, any of the powers
conferred by English law on the owner of a legal mortgage of the Land
described in Part 2 of Schedule 1 to the Amended Debenture until the
Agent is registered as the proprietor of the Amended Debenture in
respect of that Land at H.M. Land Registry. This will trigger a
statutory requirement that an application for first registration be
made at H.M. Land Registry in respect of those properties set out in
Part 2 of Schedule 1 to the Amended Debenture which are of
unregistered land.
(C) The security interest in the Shares constituted by the Amended
Debenture is not proposed to be perfected by the registration of the
Shares in the name of the Agent or its nominee. That security
interest therefore constitutes only an equitable charge and, as such,
is not as favourable to the Agent or the Lenders as a perfected legal
charge and suffers from the disadvantages inherent in equitable (as
opposed to legal) charges. In particular, but without prejudice to
the foregoing, such an equitable charge may be defeated if the Shares
are disposed of to a person who acquires the legal title to the Shares
in good faith for value without notice (actual or constructive) of the
equitable charge. The risk of the above occurring is somewhat reduced
so long as the share certificates relating to the Shares are held by
the Agent or a nominee of the Agent and replacement certificates
therefor are not issued.
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We recommend, nonetheless, that the Shares are not registered in the
name of the Agent or its nominee. If they were there is a risk that
the Agent and the Lenders could be construed as being "connected" with
the Parent for the purposes of Section 249 of the Insolvency Xxx 0000.
This would have a number of disadvantageous consequences under that
Act.
(D) Floating charges are subject to a number of disadvantages which do not
apply to fixed charges. In particular:
(i) a floating charge created by a company within twelve months of
the commencement of its winding up is, unless it is proved that
the company is solvent immediately after the creation of the
charge, invalid except to the amount of any cash paid to the
company at the time of or subsequent to the creation of, and in
consideration for, the floating charge together with interest
thereon at a prescribed rate;
(ii) a floating charge is, on enforcement, subject to the rights of,
and accordingly ranks after, unsecured but statutorily preferred
creditors such as the Inland Revenue; and
(iii) a fixed charge created after the creation of, and over the same
assets as, a floating charge may rank ahead of the floating
charge unless the floating charge contains a prohibition on the
creation of other charges ranking prior thereto or pari passu
therewith and the holder of the fixed charge has actual notice
of such prohibition at the time of taking his charge.
(E) We express no opinion as to whether any of the charges created by the
Amended Debenture and the Amended Deposit Charge Agreement will amount
to fixed rather than floating charges. Despite being expressed in
words which would suffice to create a fixed charge, an English court
would treat security as a floating charge where effective control of
the charged assets has not been transferred to the person holding the
benefit of the security, for example where it appears that it was
intended that the person granting the charge over the charged assets
should have the licence to dispose of those charged assets in the
ordinary course of its business.
(F) We express no opinion as to the priority of the security interests
under or referred to in the Amended Debenture or the Amended Deposit
Charge Agreement, whether as regards other security that may already
exist at the time of the creation of the relevant security interest
under the Amended Debenture or the Amended Deposit Charge Agreement or
as regards security that may be created thereafter. So far as the
latter is concerned, English law is unclear as to priority where a
subsequent charge is created and further advances are subsequently
made in reliance of the prior charge.
(G) We express no opinion as to the title of the Borrower, the Parent or
Millennium to the assets to be subject to the security created by the
Amended Debenture and the Amended Deposit Charge Agreement. We would,
however, refer you to:
(i) the Report prepared by us dated 23rd January, 1997 in respect of
the Certificate of Title issued by Linklaters & Paines,
solicitors for the British Broadcasting Corporation, dated 27th
September, 1996 (as amended by the Supplemental Certificate
dated 22nd January, 1997); and
(ii) the Report prepared by us dated [ ] June, 1999 in respect of the
Certificate of Title issued by Xxxxxx Xxxx, solicitors for the
Borrower, dated [ ] June, 1999.
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(H) We express no opinion as to the efficacy of the Amended Debenture in
so far as it relates to assets which are situated or deemed to be
situated outside England and Wales or are subject to any law other
than English law. Furthermore, we have not made any investigation of
the assets which are subject to the floating charges created by the
Amended Debenture and accordingly our opinions set out above must be
read subject to any limitations or qualifications which may be
necessary as a result of the nature of, or any matter relating to,
such assets.
(I) Rights and obligations under the Amended Loan Agreement, the Amended
Debenture and the Amended Deposit Charge Agreement will be subject to
any law from time to time in force relating to insolvency, liquidation
or administration or any other law or legal procedure affecting
generally the enforcement of creditors' rights.
(J) In so far as any obligation under the Amended Loan Agreement, the
Amended Debenture or the Amended Deposit Charge Agreement is to be
performed in any jurisdiction other than England, an English court may
have to have regard to the law of that jurisdiction in relation to the
manner of performance and the steps to be taken in the event of non-
performance or defective performance.
(K) We express no opinion as to whether the equitable remedies of specific
performance or injunctive relief would be available in respect of any
obligation of the Borrower or the Parent. These remedies are subject
to the discretion of the English courts.
(L) We express no opinion as to the validity or the binding effect of the
obligations as set out in Clause 13.1 of the Amended Loan Agreement
which provide for the payment of interest on overdue amounts. An
English court would not give effect to such provisions if it could be
established that the amount expressed as being payable was such that
such a clause was in the nature of a penalty (that is to say a
requirement for a stipulated sum to be paid irrespective of, or
necessarily greater than, the loss likely to be sustained).
(M) Clause 15.6 of the Amended Loan Agreement provides that the
obligations of the Guarantors will not be affected by any change,
waiver or release of the Borrower's obligations under the Amended Loan
Agreement. We express no opinion whether this will be effective where
the Guarantors have not agreed to that change, waiver or release.
(N) Clause 15.8 of the Amended Loan Agreement restricts the taking of
security and the exercise by the Guarantors of certain rights in
connection with the obligations of the Guarantors under Clause 15 of
the Amended Loan Agreement. This is reinforced by the provision that
the Guarantors will hold on trust for the agent and the lenders all
amounts received in respect of a proof for amounts due to it by the
Borrower or any other Guarantor. We express no opinion as to the
effectiveness of the trust itself.
(O) We express no opinion on Clause 26.1 of the Amended Loan Agreement.
Any term of the Amended Loan Agreement may in certain circumstances be
waived or amended other than in writing.
(P) We express no opinion as to the validity or binding effect of
provisions set out in Clause 27 of the Amended Debenture and Clause 15
of the Amended Deposit Charge Agreement relating to invalidity and
severability.
(Q) There could be circumstances in which an English court would not treat
as conclusive those certificates and determinations which the Amended
Loan Agreement and the Amended Deposit Charge Agreement provide are to
be
CONFORMED COPY
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conclusive, for example if it could be shown that a certificate or
determination had an unreasonable or arbitrary basis or was not made
in good faith.
(R) We express no opinion on European Union law as it affects any
jurisdiction other than England.
RELIANCE
--------
9. This opinion is addressed to you for your own benefit and as agent for and
on behalf of the Lenders in connection with the Amended Loan Agreement, the
Amended Debenture and the Amended Deposit Charge Agreement. It may not be
relied upon by any person other than yourselves or the Lenders or used for
any other purpose and, without our prior written consent, neither its
contents nor its existence may be disclosed to any other person.
Yours faithfully,
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SCHEDULE 9:
FORM OF OVERDRAFT BANK AGREEMENT
OVERDRAFT BANK AGREEMENT
DATE :
PARTIES
1. [ ] of [ ]
(the "OVERDRAFT BANK")
2. [ ] a company incorporated in England
(number [ ]) whose registered office is at [Warwick
Technology Park, Gallows Hill, Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX], on its
own behalf and on behalf of each of the existing Guarantors (each as
defined in the Loan Agreement referred to below) (the "OVERDRAFT
BORROWER")/1/
3. CREDIT SUISSE FIRST BOSTON (the "AGENT"), on its own behalf and on behalf
of each of the Lenders (as defined in the Loan Agreement)
BACKGROUND
A Loan Agreement (the "LOAN AGREEMENT") was made on 28th February, 1997 (and
amended on 21st May, 1997 and on [ ]) between (1)
Castle Transmission International Ltd. as borrower, (2) Castle Transmission
Services (Holdings) Ltd. as guarantor, (3) the lenders named in the Loan
Agreement, (4) Credit Suisse First Boston as Agent and others. Under the terms
of the Loan Agreement the Lenders agreed to provide to Castle Transmission
International Ltd. a (Pounds)150,000,000 credit facility.
The Overdraft Bank has provided overdraft facilities (the "OVERDRAFT
FACILITIES") to the Overdraft Borrower and wishes the Overdraft Borrower's
obligations under those Overdraft Facilities to be secured by the Charges.
The parties agree as follows:
1. INTERPRETATION
Unless a contrary intention is indicated, words and expressions defined in
the Loan Agreement and which are not defined in this Agreement will have
the same meanings when used in this Agreement. References to the Loan
Agreement are to that agreement as amended or supplemented.
2. UNDERTAKINGS OF THE OVERDRAFT BANK
The Overdraft Bank agrees that:
(A) The Overdraft Bank has delivered to the Agent a copy of the document
(if any exists) describing the terms of the Overdraft Facilities.
(B) The Overdraft Bank will notify the Agent of the termination or breach
of the Overdraft Facilities (or any event which, upon the giving of
notice, lapse of time or both would give cause for a termination of
the Overdraft Facilities).
---------------
/1/ Insert details of relevant entity which must be the Borrower or any
Restricted Subsidiary.
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3. SECURITY
By virtue of the execution of this Agreement the amounts due by the
Overdraft Borrower under the Overdraft Facilities become secured under the
Charges. Only a maximum of (Pounds)[ ]/2/ of the amount outstanding
under the Overdraft Facilities will, however, rank equally with amounts
outstanding under the Loan Agreement. The remainder, if any, will rank
behind.
4. THE AGENT
4.1 APPOINTMENT
The Agent is appointed as an agent by the Overdraft Bank. The Agent is not
acting as agent of any Company under this Agreement.
4.2 AUTHORITY
The Agent is authorised to exercise the rights, powers, discretions and
duties which are specified by the Financing Documents. The Agent may also
act in a manner reasonably incidental to these matters.
4.3 DUTIES
In addition to the obligations of the Agent set out elsewhere in the
Financing Documents the Agent agrees as follows:
(A) NOTICES: The Agent will as soon as reasonably practicable notify the
Overdraft Bank of the contents of each notice received from a Company
under the terms of a Financing Document. If the notice does not
affect the Overdraft Bank the Agent may elect not to notify the
Overdraft Bank.
(B) OTHER DOCUMENTS: When a Company delivers to the Agent any other
document required to be delivered under a Financing Document the Agent
will as soon as reasonably practicable provide a copy to the Overdraft
Bank. The Overdraft Borrower agrees to reimburse the Agent for the
costs of preparing any copies required for this purpose.
(C) TERMINATION EVENTS: The Agent will notify the Overdraft Bank of any
Termination Event or Potential Termination Event. This obligation
will not arise, however, until the Agent receives express notice with
reasonable supporting evidence of the Termination Event or Potential
Termination Event. Until this time the Agent is entitled to assume
that there is no Termination Event or Potential Termination Event.
The Agent is not required to make inquiries. Information referred to
in Clause 4.11 does not have to be disclosed under this sub-clause.
The duties under this sub-clause will be discharged if the Agent performs
the corresponding duties to the Overdraft Bank or its affiliate in is
capacity as a Lender.
4.4 POWERS
In addition to the powers of the Agent set out elsewhere in the Financing
Documents the Agent has the following powers:
(A) PROFESSIONAL ADVISERS: The Agent may instruct professional advisers to
provide advice in connection with this Agreement and the Overdraft
Facilities.
----------
/2/ The aggregate maximum amount included in this space for all Overdraft Banks
must not exceed (Pounds)5,000,000. See Clause 19.1(K)(i).
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(B) AUTHORITY FROM INSTRUCTING GROUP: The Agent may take any action which
is not inconsistent with the Financing Documents and which is
authorised by an Instructing Group.
(C) VIEWS OF INSTRUCTING GROUP: In exercising any of its rights, powers or
discretions the Agent may seek the views of an Instructing Group. If
it exercises those rights, powers or discretions in accordance with
those views the Agent will incur no liability.
(D) PROCEEDINGS: The Agent may institute legal proceedings against a
Company in the name of the Overdraft Bank if the Overdraft Bank
authorises it to take those proceedings.
(E) COMPLIANCE WITH LAW: The Agent may take any action necessary for it to
comply with applicable laws.
The Agent is not required to exercise any of these powers and will incur no
liability if it fails to do so. In the context of legal proceedings the
Agent may decline to take any step until it has received indemnities or
security satisfactory to it.
4.5 RELIANCE
The Agent is entitled to rely upon each of the following:
(A) Advice received from professional advisers.
(B) A certificate of fact received from a Company and signed by an
Authorised Person.
(C) Any communication or document believed by the Agent to be genuine.
The Agent will not be liable for any of the consequences of relying on
these items.
4.6 EXTENT OF AGENT'S DUTIES
(A) NO OTHER DUTIES: The Agent has no obligations or duties other than
those expressly set out in this Agreement, the Financing Documents and
the other Overdraft Bank Agreements.
(B) ILLEGALITY AND LIABILITY: The Agent is not obliged to do anything
which is illegal or which may expose it to liability to any person.
(C) NOT TRUSTEE: The Agent is not acting as a trustee for any purpose in
connection with this Agreement, except for its role described in
Clause 4.13, 4.14 and 4.15.
4.7 RESPONSIBILITY OF THE OVERDRAFT BANK
The Overdraft Bank is responsible for its own decision to become involved
in the Overdraft Facilities and its decision to take or not take action
under the Overdraft Facilities. It should make its own credit appraisal of
the Overdraft Borrower and the terms of the Overdraft Facilities. The
Agent makes no representation that any information provided to the
Overdraft Bank before or after the date of this Agreement is true.
Accordingly the Overdraft Bank should take whatever action it believes is
necessary to verify that information. In addition the Agent is not
responsible for the legality, validity or adequacy of any Financing
Document or the efficacy of the Security under the Charges. The Overdraft
Bank will satisfy itself on these issues.
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4.8 LIMITATION OF LIABILITY
(A) AGENT: The Agent will not be liable to the Overdraft Bank for any
action or non-action under or in connection with the Financing
Documents unless caused by its gross negligence or wilful misconduct.
(B) DIRECTORS, EMPLOYEES AND AGENTS: No director, employee or agent of the
Agent will be liable to the Overdraft Bank in relation to the
Financing Documents. The Overdraft Bank agrees not to seek to impose
this liability upon them.
4.9 BUSINESS OF THE AGENT
Despite its role as agent of the Overdraft Bank the Agent may:
(A) participate as a Lender in the Facilities or as a Hedging Bank or an
Overdraft Bank,
(B) carry on all types of business with any Company, and
(C) act as agent for other groups of lenders to any Company or other
borrowers.
4.10 INDEMNITY
The Overdraft Bank agrees to reimburse the Agent for all losses and
expenses incurred by the Agent as a result of its appointment as Agent or
arising from its activities as Agent in relation to this Agreement. These
losses and expenses will take into account amounts reimbursed to the Agent
by the Overdraft Borrower. The Overdraft Bank is not liable for losses and
expenses arising from the gross negligence or willful misconduct of the
Agent.
4.11 CONFIDENTIAL INFORMATION
The Agent is not required to disclose to the Overdraft Bank any
information:
(A) which is not received by it in its capacity as Agent, or
(B) which it receives, with its consent, on a confidential basis.
4.12 RESIGNATION AND REMOVAL
The Agent may resign or be removed in accordance with the terms of the Loan
Agreement. In this case the Overdraft Bank agrees to co-operate, to the
extent reasonably necessary, with the transfer of function to a new Agent.
4.13 OBLIGATION TO PAY TO THE AGENT
The Overdraft Borrower agrees to pay to the Agent on demand each amount due
and payable by the Overdraft Borrower to the Overdraft Bank under the
Overdraft Facilities. This obligation will be satisfied to the extent that
the amount is paid to the Overdraft Bank. It does not affect the rights of
the Overdraft Bank or the obligations of the Overdraft Borrower to the
Overdraft Bank. A payment of an amount under this sub-clause will,
however, satisfy the Overdraft Borrower's obligation to pay that amount to
the Overdraft Bank.
4.14 HOLDING AS SECURITY TRUSTEE
The Agent agrees that it holds the benefit of:
(A) Clause 4.13; and
(B) the Charges and all Security arising from the Charges,
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as trustee on behalf of:
(i) the Lenders;
(ii) each Hedging Bank which executed a Hedging Bank Agreement in
accordance with Clause 20.1(CC); and
(iii) each Overdraft Bank.
All the Agent's rights and claims arising under the items mentioned in
paragraphs (A) and (B) are vested in it on this basis.
4.15 SECURITY
(A) PERFECTION OF SECURITY AND TITLE: The Agent:
(i) is not liable for any failure, omission or defect in perfecting
the Security constituted by any Charge;
(ii) may accept without enquiry the title to the property over which
Security is intended to be created by any Charge.
(B) CUSTODY: The Agent is not under any obligation to hold any title
deeds, security documents or any other documents in connection with
the property charged by any Charge or to take any steps to protect or
preserve these documents. The Agent may permit a Company to retain all
these documents in its possession or may deposit them with a nominee
or custodian. This paragraph does not apply to documents held in
relation to a legal mortgage over, or over an interest in, real
property or shares.
5. NOTICES
Any notice to be delivered to the Overdraft Bank may be delivered to it, or
its affiliate, as a Lender in the manner described in the Loan Agreement.
6. LAW
This Agreement is to be governed by and construed in accordance with
English law.
SIGNATURES
[Name of Overdraft Bank]
By:
[Name of Overdraft Borrower]
By:
[Name of Agent]
By:
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SCHEDULE 10:
FORM OF HEDGING BANK AGREEMENT
HEDGING BANK AGREEMENT
DATE :
PARTIES
1. [ ] of [
] (the "HEDGING BANK")
2. CASTLE TRANSMISSION INTERNATIONAL LTD., a company incorporated in England
(number 3196207) whose registered office is at Warwick Technology Park,
Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX, on its own behalf and on behalf of each
of the existing Guarantors (each as defined in the Loan Agreement referred
to below)
3. CREDIT SUISSE FIRST BOSTON (the "AGENT"), on its own behalf and on behalf
of each of the Lenders (as defined in the Loan Agreement)
BACKGROUND
A Loan Agreement (the "LOAN AGREEMENT") was made on 28th February, 1997 (and
amended on 21st May, 1997 and on [ ]) between (1) Castle
Transmission International Ltd. as borrower, (2) Castle Transmission Services
(Holdings) Ltd. as guarantor, (3) the lenders named in the Loan Agreement, (4)
Credit Suisse First Boston as Agent and others. Under the terms of the Loan
Agreement the Lenders agreed to provide to the Borrower a (Pounds)150,000,000
credit facility.
The Hedging Bank has entered into a Hedging Contract with the Borrower and
wishes the Borrower's obligations under that Hedging Contract to be secured by
the Charges.
The parties agree as follows:
1. INTERPRETATION
Unless a contrary intention is indicated, words and expressions defined in
the Loan Agreement and which are not defined in this Agreement will have
the same meanings when used in this Agreement. References to the Loan
Agreement are to that agreement as amended or supplemented.
2. UNDERTAKINGS OF THE HEDGING BANK
The Hedging Bank agrees that:
(A) The Hedging Contract complies with the requirements of Schedule 11 to
the Loan Agreement.
(F) The Hedging Bank will notify the Agent of the termination or breach of
the Hedging Contract (or any event which, upon the giving of notice,
lapse of time or both would give cause for a termination of the
Hedging Contract).
(G) The Hedging Bank has delivered to the Agent a copy of the Hedging
Contract. It will deliver to the Agent copies of all confirmations
under the Hedging Contract. Before entering into a transaction which
is to be incorporated in the Hedging Contract the Hedging Bank will
use reasonable endeavours to ensure that:
(i) the proposed transaction will not cause the Borrower to be in
default under Clause 20.1(CC) of the Loan Agreement; and
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(ii) the transaction forms part of the implementation of the Hedging
Policy.
This obligation may be discharged by the Hedging Bank receiving a
certificate from the Borrower to this effect.
(H) If an Event of Default (as described in the Hedging Contract) occurs
and is continuing under the Hedging Contract, the Agent (acting on the
instructions of an Instructing Group) shall be entitled, by notice in
writing to the Hedging Bank and the Borrower, to require the Hedging
Contract to be terminated and closed out in accordance with its terms
as soon as possible after the notice is given. If there is a net
amount payable to the Borrower under the Hedging Contract upon its
termination and close out, the Hedging Bank shall pay that net amount
to the Agent to discharge amounts due under the Financing Documents,
any other Hedging Contracts and the Overdraft Facilities, or (where no
such amounts are due) into an account held with the Agent or a nominee
of the Agent and charged to the Agent.
(I) Any waiver of a Termination Event given by the Agent under the Loan
Agreement will be treated as given by the Hedging Bank in the same
terms in respect of the equivalent Event of Default under the Hedging
Contract.
3. SECURITY
By virtue of the execution of this Agreement the amounts due by the
Borrower under the Hedging Contract with the Hedging Bank become secured
under the Charges.
4. THE AGENT
4.1 APPOINTMENT
The Agent is appointed as an agent by the Hedging Bank. The Agent is not
acting as agent of any Company under this Agreement.
4.2 AUTHORITY
The Agent is authorised to exercise the rights, powers, discretions and
duties which are specified by the Financing Documents. The Agent may also
act in a manner reasonably incidental to these matters.
4.3 DUTIES
In addition to the obligations of the Agent set out elsewhere in the
Financing Documents the Agent agrees as follows:
(A) NOTICES: The Agent will as soon as reasonably practicable notify the
Hedging Bank of the contents of each notice received from a Company
under the terms of a Financing Document. If the notice does not
affect the Hedging Bank the Agent may elect not to notify the Hedging
Bank.
(B) OTHER DOCUMENTS: When a Company delivers to the Agent any other
document required to be delivered under a Financing Document the Agent
will as soon as reasonably practicable provide a copy to the Hedging
Bank. The Borrower agrees to reimburse the Agent for the costs of
preparing any copies required for this purpose.
(C) TERMINATION EVENTS: The Agent will notify the Hedging Bank of any
Termination Event or Potential Termination Event. This obligation
will not arise, however, until the Agent receives express notice with
reasonable supporting evidence of the Termination Event or Potential
Termination Event. Until this time the Agent is entitled to assume
that there is no Termination Event or Potential
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Termination Event. The Agent is not required to make inquiries.
Information referred to in Clause 4.11 does not have to be disclosed
under this sub-clause.
The duties under this sub-clause will be discharged if the Agent performs
the corresponding duties to the Hedging Bank or its affiliate in is
capacity as a Lender.
4.4 POWERS
In addition to the powers of the Agent set out elsewhere in the Financing
Documents the Agent has the following powers:
(A) PROFESSIONAL ADVISERS: The Agent may instruct professional advisers to
provide advice in connection with this Agreement and the Hedging
Contract.
(B) AUTHORITY FROM INSTRUCTING GROUP: The Agent may take any action which
is not inconsistent with the Financing Documents and which is
authorised by an Instructing Group.
(C) VIEWS OF INSTRUCTING GROUP: In exercising any of its rights, powers or
discretions the Agent may seek the views of an Instructing Group. If
it exercises those rights, powers or discretions in accordance with
those views the Agent will incur no liability.
(D) PROCEEDINGS: The Agent may institute legal proceedings against a
Company in the name of the Hedging Bank if the Hedging Bank authorises
it to take those proceedings.
(E) COMPLIANCE WITH LAW: The Agent may take any action necessary for it to
comply with applicable laws.
The Agent is not required to exercise any of these powers and will incur no
liability if it fails to do so. In the context of legal proceedings the
Agent may decline to take any step until it has received indemnities or
security satisfactory to it.
4.5 RELIANCE
The Agent is entitled to rely upon each of the following:
(A) Advice received from professional advisers.
(B) A certificate of fact received from a Company and signed by an
Authorised Person.
(C) Any communication or document believed by the Agent to be genuine.
The Agent will not be liable for any of the consequences of relying on
these items.
4.6 EXTENT OF AGENT'S DUTIES
(A) NO OTHER DUTIES: The Agent has no obligations or duties other than
those expressly set out in this Agreement, the Financing Documents,
any other Hedging Bank Agreements and the Overdraft Bank Agreements.
(B) ILLEGALITY AND LIABILITY: The Agent is not obliged to do anything
which is illegal or which may expose it to liability to any person.
(C) NOT TRUSTEE: The Agent is not acting as a trustee for any purpose in
connection with this Agreement, except for its role described in
Clause 4.13, 4.14 and 4.15.
4.7 RESPONSIBILITY OF THE HEDGING BANK
The Hedging Bank is responsible for its own decision to become involved in
the Hedging Contract and its decision to take or not take action under the
Hedging Contract. It should make its own credit appraisal of the Borrower
and the terms of the Hedging Contract. The Agent makes no representation
that any information provided to the Hedging Bank before or after the date
of this Agreement is true. Accordingly the Hedging Bank should take
whatever action it believes is necessary to verify that information. In
addition the Agent is not responsible for the legality, validity or
adequacy of any Financing Document or the efficacy of the Security under
the Charges. The Hedging Bank will satisfy itself on these issues.
4.8 LIMITATION OF LIABILITY
(A) AGENT: The Agent will not be liable to the Hedging Bank for any action
or non-action under or in connection with the Financing Documents
unless caused by its gross negligence or wilful misconduct.
(B) DIRECTORS, EMPLOYEES AND AGENTS: No director, employee or agent of the
Agent will be liable to the Hedging Bank in relation to the Financing
Documents. The Hedging Bank agrees not to seek to impose this
liability upon them.
4.9 BUSINESS OF THE AGENT
Despite its role as agent of the Hedging Bank the Agent may:
(A) participate as a Lender in the Facilities or as a Hedging Bank or an
Overdraft Bank,
(B) carry on all types of business with any Company, and
(C) act as agent for other groups of lenders to any Company or other
borrowers.
4.10 INDEMNITY
The Hedging Bank agrees to reimburse the Agent for all losses and expenses
incurred by the Agent as a result of its appointment as Agent or arising
from its activities as Agent in relation to this Agreement. These losses
and expenses will take into account amounts reimbursed to the Agent by the
Borrower. The Hedging Bank is not liable for losses and expenses arising
from the gross negligence or willful misconduct of the Agent.
4.11 CONFIDENTIAL INFORMATION
The Agent is not required to disclose to the Hedging Bank any information:
(A) which is not received by it in its capacity as Agent, or
(B) which it receives, with its consent, on a confidential basis.
4.12 RESIGNATION AND REMOVAL
The Agent may resign or be removed in accordance with the terms of the Loan
Agreement. In this case the Hedging Bank agrees to co-operate, to the
extent reasonably necessary, with the transfer of function to a new Agent.
4.13 OBLIGATION TO PAY TO THE AGENT
The Borrower agrees to pay to the Agent on demand each amount due and
payable by the Borrower to the Hedging Bank under the Hedging Contract.
This obligation will be satisfied to the extent that the amount is paid to
the Hedging Bank. It does not affect the
rights of the Hedging Bank or the obligation of the Borrower to the Hedging
Bank. A payment of an amount under this sub-clause will, however, satisfy
the Borrower's obligation to pay that amount to the Hedging Bank.
4.14 HOLDING AS SECURITY TRUSTEE
The Agent agrees that it holds the benefit of:
(A) Clause 4.13; and
(B) the Charges and all Security arising from the Charges, as trustee on
behalf of:
(i) the Lenders;
(ii) each Hedging Bank which executes a Hedging Bank Agreement in
accordance with Clause 20.1(CC)(ii) of the Loan Agreement; and
(iii) each Overdraft Bank.
All the Agent's rights and claims arising under the items mentioned in
paragraphs (A) and (B) are vested in it on this basis.
4.15 SECURITY
(A) PERFECTION OF SECURITY AND TITLE: The Agent:
(i) is not liable for any failure, omission or defect in perfecting
the Security constituted by any Charge;
(ii) may accept without enquiry the title to the property over which
Security is intended to be created by any Charge.
(B) CUSTODY: The Agent is not under any obligation to hold any title
deeds, security documents or any other documents in connection with
the property charged by any Charge or to take any steps to protect or
preserve these documents. The Agent may permit a Company to retain all
these documents in its possession or may deposit them with a nominee
or custodian. This paragraph does not apply to documents held in
relation to a legal mortgage over, or over an interest in, real
property or shares.
5. NOTICES
Any notice to be delivered to the Hedging Bank may be delivered to it, or
its affiliate, as a Lender in the manner described in the Loan Agreement.
6. LAW
This Agreement is to be governed by and construed in accordance with
English law.
SIGNATURES
[Name of Hedging Bank]
By:
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Castle Transmission International Ltd.
By:
[Name of Agent]
By:
CONFORMED COPY
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SCHEDULE 11:
REQUIREMENTS FOR HEDGING CONTRACTS
Each Hedging Contract is to be on the terms of the International Swaps &
Derivatives Association, Inc. ("ISDA") 1992 Master Agreement
(Multicurrency-Cross Border) (the "ISDA AGREEMENT"). Each Hedging Contact
will provide for, together with such other terms as the relevant Hedging
Bank and the Borrower may agree and which do not conflict with, the
following:
(a) Sections 5(a)(i) to (viii) of the ISDA Agreement not to apply as
Events of Default with respect to the Borrower. The Termination
Events (as defined in the Loan Agreement) shall be the only Events of
Default with respect to the Borrower for the purposes of the ISDA
Agreement and, accordingly, the automatic termination provisions of
Section 6(a) of the ISDA Agreement shall not be applicable.
(b) Any notice given pursuant to Section 5 or Section 6 of the ISDA
Agreement to also be given contemporaneously to the Agent.
(c) If any Event of Default under the ISDA Agreement occurs (as referred
to in paragraph (a) above) the relevant Hedging Bank to be entitled to
designate a day as an Early Termination Date (by notice to the
Borrower in accordance with Section 6(a) of the ISDA Agreement) only
if all principal amounts outstanding under the Facilities are due and
payable or if the Agent has cancelled the Facilities or demanded
immediate repayment of the Loan under Clause 20.2 of this Agreement or
required the Hedging Contract to be terminated under Clause 2(D) of
the Hedging Bank Agreement with that Hedging Bank. This notice must
also be given to the Agent.
(d) No contractual rights of set-off to either party additional to such
rights contained in the unamended form of the ISDA Agreement.
(e) Section 2(c)(ii) of the ISDA Agreement not to apply to any
Transactions and thus payments under all Transactions under the same
Hedging Contract to be made in the same currency on the same day shall
be netted.
(f) An acknowledgement of the existence of this Agreement and the Charges.
(g) An election for "Second Method and Market Quotation" in the "Schedule"
as the payment method applicable.
(h) The governing law to be English law.
Terms used in this schedule have the meanings given to them in the ISDA
Agreement or, where the context does not so permit, the meanings given to
them in this Agreement.
