EXHIBIT 10.31
CONFORMED COPY
EWT ELEKTRO & NACHRICHTENTECHNIK GMBH
AS BORROWER
THE COMPANIES IDENTIFIED HEREIN
AS GUARANTORS
THE ROYAL BANK OF SCOTLAND PLC
AS ARRANGER, FACILITY AGENT
AND SECURITY AGENT
AND
OTHERS
-----------------------------------------------------
EUR 90,000,000
REVOLVING LOAN FACILITY AGREEMENT
-----------------------------------------------------
XXXXXXXX CHANCE
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION...........................................1
2. THE FACILITY............................................................20
3. UTILISATION OF THE FACILITY.............................................21
4. PAYMENT AND CALCULATION OF INTEREST.....................................23
5. MARKET DISRUPTION.......................................................23
6. NOTIFICATION............................................................24
7. REPAYMENT...............................................................25
8. VOLUNTARY CANCELLATION AND PREPAYMENT...................................25
9. MANDATORY PREPAYMENT....................................................25
10. TAXES...................................................................28
11. INCREASED COSTS.........................................................30
12. ILLEGALITY..............................................................31
13. MITIGATION..............................................................31
14. REPRESENTATIONS AND WARRANTIES..........................................32
15. FINANCIAL INFORMATION...................................................36
16. FINANCIAL CONDITION.....................................................39
17. COVENANTS...............................................................39
18. CONDITION SUBSEQUENT....................................................47
19. EVENTS OF DEFAULT.......................................................48
20. GUARANTEE AND INDEMNITY.................................................52
21. COMMITMENT COMMISSION AND FEES..........................................57
22. COSTS AND EXPENSES......................................................57
23. DEFAULT INTEREST AND BREAK COSTS........................................58
24. BORROWER'S INDEMNITIES..................................................59
25. CURRENCY OF ACCOUNT AND PAYMENT.........................................60
26. PAYMENTS................................................................60
27. SET-OFF.................................................................62
28. SHARING.................................................................62
29. THE AGENTS, THE ARRANGER AND THE BANKS..................................63
30. ASSIGNMENTS AND TRANSFERS...............................................70
31. CALCULATIONS AND EVIDENCE OF DEBT.......................................72
32. REMEDIES AND WAIVERS, PARTIAL INVALIDITY................................73
33. NOTICES.................................................................73
34. COUNTERPARTS............................................................74
35. AMENDMENTS..............................................................75
36. GOVERNING LAW...........................................................75
37. ENFORCEMENT.............................................................75
SCHEDULE 1 Parties........................................................77
SCHEDULE 2 Form of Transfer Certificate...................................78
SCHEDULE 3 Conditions Precedent...........................................83
SCHEDULE 4 Notice of Drawdown.............................................86
SCHEDULE 5 Form of Compliance Certificate.................................87
SCHEDULE 6 Principal Agreements...........................................88
SCHEDULE 7 Mandatory Costs Formula........................................89
SCHEDULE 8 Form of Confidentiality Undertaking............................91
SCHEDULE 9 Form of Accession Letter.......................................95
SCHEDULE 10 Existing Borrowers.............................................96
SCHEDULE 11 Secured Real Property..........................................97
SCHEDULE 12 Necessary Authorisations.......................................98
SCHEDULE 13 Form of Statistics Report......................................99
THIS AGREEMENT is made on 24 October, 2001
BETWEEN
(1) EWT ELEKTRO & NACHRICHTENTECHNIK GMBH a company incorporated under the laws
of Germany having its business address at Xxxxxxxxxxxxxxx 0-0, 00000
Xxxxxxxx, Xxxxxxx, registered at the local court of Augsburg under HRB 6601
(the "BORROWER");
(2) THE COMPANIES identified in part II of Schedule 1 as Original Guarantors
(the "ORIGINAL GUARANTORS");
(3) THE ROYAL BANK OF SCOTLAND PLC as arranger of the Facility (in such
capacity, the "ARRANGER");
(4) THE ROYAL BANK OF SCOTLAND PLC as facility agent for the Banks (in such
capacity, the "FACILITY AGENT") and as security agent for the Banks (in
such capacity the "SECURITY AGENT", the Facility Agent and the Security
Agent each being an "AGENT"); and
(5) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ADVANCE" means an advance made or to be made by the Banks hereunder.
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 20.10 (ADDITIONAL GUARANTORS).
"AFFILIATE" means, in respect of any person, a direct or indirect
Subsidiary or holding company of that person or a direct or indirect
Subsidiary of a holding company of that person.
"ANNUALISED EBITDA" means, at the end of any Quarter Period, the
Consolidated EBITDA calculated in accordance with GAAP for:
(i) such Quarter Period; and
(ii) the immediately preceding Quarter Period;
times two.
"ANNUALISED QUARTERLY REVENUE" means, at the end of any Quarter Period, the
consolidated revenue of the Group calculated in accordance with GAAP for:
(i) such Quarter Period; and
(ii) the immediately preceding Quarter Period
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times two.
"AUDITORS" means Xxxxxx Xxxxxxxx & Co.
"AUDITORS' CERTIFICATE" means a certificate substantially in the form of
Schedule 5 (FORM OF COMPLIANCE CERTIFICATE) in relation to compliance or
otherwise with Clause 15.4.2 (DELIVERY OF REPORTS) issued by the Auditors
of the Borrower.
"AUTHORISATIONS" means all approvals, authorisations and licences
(including the Registrations) from, all rights granted by and all filings,
registrations and agreements with any person including, without limitation,
any government or other regulatory authority.
"AUTHORISED SIGNATORY" means, in relation to an Obligor for any purpose,
any person who is duly authorised on behalf of that Obligor for such
purpose.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time LESS the aggregate
of its portions of the principal amount of the Advances which are then
outstanding, PROVIDED THAT such amount shall not be less than zero.
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the
Available Commitments adjusted, in the case of any proposed drawdown, so as
to take into account:
(a) any reduction in the Commitment of a Bank pursuant to the terms
hereof;
(b) the principal amount of any Advance which, pursuant to any other
drawdown, is to be made; and
(c) the principal amount of any Advance which is due to be repaid,
on or before the proposed Drawdown Date.
"BANK" means any financial institution:
(a) named in Part I of Schedule 1 (THE BANKS); or
(b) which has become a party hereto in accordance with Clause 30.3
(ASSIGNMENTS AND TRANSFERS BY BANKS) or Clause 30.4 (TRANSFERS BY
BANKS),
and which has not ceased to be a party hereto in accordance with the terms
hereof.
"BANK ACCOUNT PLEDGES" means each of the Bank Account Pledge Agreements
(KONTOVERPFANDUNG) entered into on or about the date hereof by EWT Elektro-
und Nachrichtentechnik GmbH, EWT Communications GmbH, TSS Telekabel Service
Sud Marketing und Verwaltung GmbH, EWT GmbH und TSS GmbH GbR and RFC Radio,
Fernseh- und Computertechnik GmbH in favour of the Finance Parties.
"BDW" means BdW Beteiligungsgesellschaft fur die Deutsche Wirtschaft mbH &
Co. KG.
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"BDW AGREEMENT" means the silent partnership agreement (XXXXXXX
GESELLSCHAFTSVERTRAG) entered into between EWT Communications GmbH and BdW
as of March 23, 1999.
"BDW TERMINATION DATE" has the meaning ascribed thereto in Clause 17.28
(BDW TERMINATION).
"BORROWED MONEY" means Indebtedness in respect of (i) money borrowed or
raised and debit balances at banks, (ii) any bond, note, loan stock,
debenture or similar debt instrument, (iii) acceptance or documentary
credit facilities, (iv) receivables sold or discounted (otherwise than on a
non-recourse basis and other than in the ordinary course of business for
collection), (v) payments for assets acquired or services supplied deferred
for a period of over 270 days after the relevant assets were or are to be
acquired or the relevant services were or are to be supplied, (vi) finance
leases and hire purchase contracts, (vii) any other transaction (including
without limitation forward sale or purchase agreements) having the
commercial effect of a borrowing or raising of money and (viii) guarantees
in respect of Indebtedness of any person falling within any of (i) to (vii)
(for the avoidance of doubt, without double counting guarantees given by a
member of the Group for the Indebtedness of another member of the Group)
provided that Indebtedness which has been cash collateralised shall not be
included in any calculation of Borrowed Money to the extent so cash
collateralised and Indebtedness which is in the nature of equity (other
than redeemable shares) shall not be regarded as Borrowed Money.
"2001 BUDGET" means the budget for the Group for the period commencing 1
January 2001 and ending 31 December 2001 as contained in the Management
Base Case.
"2002 BUDGET" means a budget in respect of the Group for year 2002
containing information of a substantially similar type and to a
substantially similar level of detail as the 2001 Budget or containing such
additional information or additional level of detail as the Borrower
reasonably deems necessary, or, omitting such information or to such lesser
level of detail, as has at the relevant time, been approved in writing by
the Facility Agent.
"BUSINESS" means any business of the Group (i) that consists of the
up-grade, construction, creation, development, marketing, operation,
utilisation and maintenance of networks that use existing or future
technology for the transmission, reception and delivery of voice and/or
other data (including networks that transmit, receive and/or deliver
services such as multi-channel television and radio, programming,
telephony, Internet services and content, high-speed data transmission,
video, multi-media and related activities) or (ii) that supports, is
incidental to or is related to any such business or (iii) that comprises
being a holding company of one or more persons engaged in such business and
references to "BUSINESS" or "ORDINARY COURSE OF BUSINESS" shall be
similarly construed.
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"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are open for general business in London, Amsterdam and Frankfurt and (in
relation to any date for payment or purchase of euro) which is a TARGET
Day.
"CABLE SYSTEMS" means the telecommunications and/or television systems
constructed or to be constructed in relation to the Project and includes
any part of such system and all modification, substitutions, replacements
and extensions made to such systems.
"CAPITAL EXPENDITURE" means capital expenditure within the meaning of GAAP.
"COMMITMENT" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in Part A of Schedule 1
(THE BANKS).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set
out in Schedule 5 (FORM OF COMPLIANCE Certificate) in relation to the
compliance (or otherwise) with Clause 16 (FINANCIAL CONDITION) (if not in
compliance indicating the extent of the breach) issued by an Authorised
Signatory of the Borrower.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in a form
substantially in the form of Schedule 8.
"CONSOLIDATED EBITDA" means, in respect of any period, the Net Income of
the Group plus any depreciation, amortisation, other non-cash charges (such
as deferred taxes), fees accrued (whether or not paid) in respect of
Borrowed Money and interest expense and other charges in respect of
Borrowed Money for such period, adjusted as follows:
(a) minus extraordinary income of the Group;
(b) plus any extraordinary expenses of the Group;
(c) minus any interest income of the Group;
(d) adjusted for the one time compensation expense totalling Eur
10,266,000 in 2000 of which Eur 6,159,730 is allocated to 2000, Eur
2,307,263 is to be allocated to 2001 and 1,758,844 is to be allocated
to 2002,
for such period as determined in accordance with GAAP.
"CONSOLIDATED NET BORROWINGS" means at any time the aggregate amount of all
obligations of the Group for or in respect of Borrowed Money but excluding
any such obligation to any other member of the Group and any Borrowed Money
which is subject to a Subordination Agreement and which is unsecured,
adjusted to take account of the aggregate amount of freely available cash
and cash equivalents held by any member of the Group (and so that no amount
shall be included or excluded more than once).
"DRAWDOWN DATE" means the date, being a Business Day, on which an Advance
is to be made.
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment by way of security, trust
arrangement for the purpose of providing security, finance lease or other
security interest of any kind or any other
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arrangement having the effect of conferring rights of retention or other
disposal rights over an asset (including without limitation title transfer
and/or retention arrangements having a similar effect (which shall include
any sale and leasing back arrangement) or a deposit of money with the
primary intention of affording a right of set-off) and includes any
agreement to create any of the foregoing.
"ENVIRONMENTAL CLAIM" means any claim, notice of violation, prosecution,
demand, action, official warning, abatement or other order (conditional or
otherwise) relating to Environmental Matters of any notification or order
requiring compliance with the terms of any Environmental Licence or
Environmental Law.
"ENVIRONMENTAL LAW" includes all or any law, statute, rule, regulation,
treaty, by-law, code of practice, order, notice, demand, decision of the
courts or any governmental authority or agency or any other regulatory or
other body in any jurisdiction relating to Environmental Matters.
"ENVIRONMENTAL LICENCE" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law.
"ENVIRONMENTAL MATTERS" includes (a) the generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling, importation,
exportation, processing, collection, sorting, presence or manufacture of
any waste of any Relevant Substance; (b) nuisance, noise, defective
premises, health and safety at work or elsewhere; and (c) the pollution,
conservation or protection of the environment (both natural and built) or
of man or any living organisms supported by the environment or any other
matter whatsoever affecting the environment or any part of it.
"EXISTING BORROWINGS" means all Borrowed Money incurred by members of the
Group listed in Part A Schedule 10 (EXISTING BORROWINGS).
"EURIBOR" means in relation to a particular period:
(a) the percentage rate per annum which is displayed by the European
Banking Federation and which appears on Telerate page 248 (or such
other page as may replace such page 248 on such system or on any other
system of the information vendor for the time being designated by the
Federation Bancaire de `Union Europeene to be the official collector,
calculator and distributor of the Euro Interbank Offered Rate); or
(b) if no such rate is to appear on the Telerate Screen, the rate per
annum at which the Facility Agent is offering deposits in euros to
leading banks in the Interbank Market of any Participating Member
State(s),
as of 11.00 a.m. Central European time on the Quotation Date for such
period for the offering of deposits in Euro in an amount approximately
equal to the amount in relation to which EURIBOR is to be determined for a
period equivalent to such period.
"EVENT OF DEFAULT" means any circumstance described as such in Clause 19
(EVENTS OF DEFAULT).
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"EWT/PRIMACOM MERGER" means a transaction or series of transactions whereby
all or substantially all of the property and other assets of both of (a)
the Borrower and (b) Primacom (or any successor to either of them by
merger, acquisition, amalgamation or otherwise) are vested into a single
entity (a "EWT/PRIMACOM MERGED ENTITY") and the EWT/PrimaCom Merged Entity
assumes (or retains) all the rights and obligations of both of (a) the
Borrower and (b) Primacom (or any successor to either of them by merger,
acquisition, amalgamation or otherwise) as permitted under applicable law.
"FACILITY" means the revolving loan facility granted to the Borrower in
this Agreement.
"FACILITY OFFICE" means, in relation to an Agent, the office identified
with its signature below or such other office as it may select by notice
and, in relation to any Bank, the office notified by it to the Facility
Agent in writing prior to the date hereof (or, in the case of a Transferee,
at the end of the Transfer Certificate to which it is a party as
Transferee) or such other office as it may from time to time select by
notice to the Facility Agent.
"FINAL MATURITY DATE" means the date falling 364 days after the date hereof
or, if such date is not a Business Day, the first Business Day preceding
such Date.
"FINANCE DOCUMENTS" means this Agreement, any Guarantor Accession
Agreement, the Security Documents and any other documents designated as
such by the Facility Agent and the Borrower.
"FINANCE PARTIES" means the Agents, the Arranger and the Banks.
"GAAP" means generally accepted accounting principles and practices in the
United States of America.
"GROUP" means the Borrower and its Subsidiaries for the time being.
"GUARANTOR" means an Original Guarantor or an Additional Guarantor.
"GUARANTOR ACCESSION LETTER" means an agreement substantially in the form
of Schedule 9.
"INCAPACITY" means, in relation to a person, the insolvency, liquidation,
dissolution, winding up, administration, receivership or other incapacity
of that person whatsoever (and in the case of a partnership, includes the
termination or change in composition of the partnership).
"INDEBTEDNESS" means any obligation for the payment or repayment of money,
whether as principal or as surety and whether present or future, actual or
contingent.
"INDENTURES" means each of the following indentures:
(a) indenture dated 5 February 1998 between UnitedGlobalCom, Inc. (f.k.a.
United International Holdings, Inc., "UGC") and Firstar Bank of
Minnesota N.A. (the "UGC TRUSTEE") for the $1,375,000,000 10 3/4%
Senior Secured Discount Notes Due 2008;
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(b) indenture dated 29 April 1999 between UGC and the UGC Trustee for the
$355,000,000 10 3/4Senior Discount Notes Due 2009;
(c) indenture dated 30 July 1999 between UPC and Citibank, N.A. (London
branch) (the "UPC TRUSTEE") for the $735,000,000 12 1/2% Senior
Discount Notes Due 2009;
(d) indenture dated 30 July 1999 between UPC and the UPC Trustee for the
$800,000,000 10 7/8% Senior Notes Due 2009 and the EUR300,000,000 10
7/8% Senior Notes Due 2009;
(e) indenture dated 29 October 1999 between UPC and the UPC Trustee for
the $200,000,000 10 7/8% Senior Notes Due 2007 and the EUR100,000,000
10 7/8% Senior Notes Due 2007;
(f) indenture dated 29 October 1999 between UPC and the UPC Trustee for
the $252,000,000 11 1/4% Senior Notes Due 2009 and the EUR101,000,000
11 1/4% Senior Notes Due 2009;
(g) indenture dated 29 October 1999 between UPC and the UPC Trustee for
the $478,000,000 13 3/8% Senior Discount Notes Due 2009 and the
EUR191,000,000 13 3/8% Senior Discount Notes Due 2009;
(h) indenture dated 20 January 2000 between UPC and the UPC Trustee for
the $300,000,000 11 1/2% Senior Notes Due 2010;
(i) indenture dated 20 January 2000 between UPC and the UPC Trustee for
$600,000,000 11 1/4% Senior Notes Due 2010 and the EUR200,000,000 11
1/4% Senior Notes Due 2010; and
(j) indenture dated 20 January 2000 between UPC and the UPC Trustee for
the $1,000,000,000 13 3/4% Senior Discount Notes Due 2010
(each an "INDENTURE").
"INFORMATION" means the Management Base Case, the 2001 Business Plan and
information contained on pages 26-31 (NETWORK OVERVIEW, FINANCIAL OVERVIEW,
FINANCIAL SUMMARY HISTORICAL DATA, MASS MARKET VIDEO STATISTICS, MASS
MARKET INTERNET statistics) of the presentation material entitled "EWT TSS
Presentation to The Royal Bank of Scotland" dated 29 June 2001 to the
extent such information is historical in nature and is not a projection.
"INSTRUCTING GROUP" means:
(a) whilst no Advances are outstanding, a Bank or Banks whose Commitments
amount (or, if each Bank's Commitment has been reduced to zero, did
immediately before such reduction to zero, amount) in aggregate to
more than sixty-five per cent. of the Total Commitments; and
(b) whilst at least one Advance is outstanding, a Bank or Banks to whom in
aggregate more than sixty-five per cent. of the Loan is owed.
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"INTELLECTUAL PROPERTY RIGHTS" means any patent, trademark, service xxxx,
registered design, trade name or copyright required to carry on the
Business of any member of the Group.
"LIBERTY EVENT" means any of the following:
(a) both of (i) the Borrower and (ii) Primacom (or any successor to either
of them by merger, acquisition, amalgamation or otherwise) are or
become directly or indirectly controlled by Liberty Media, Liberty
Media International, Inc. or any of their respective Affiliates (as
defined in the Liberty Loan Agreement);
(b) 50% or more of the shares in, or 50% or more of the other assets or
revenues of, any member of the Group are sold, transferred, disposed
or contributed to Liberty Media or any Subsidiary or Affiliate of
Liberty Media (such 50% calculation to be made by reference to the
number of shares in issue at the date hereof or value of such assets
or revenues as evidenced by the relevant Original Financial
Statements) and Primacom (or any successor to either of them by
merger, acquisition, amalgamation or otherwise), is or becomes
directly or indirectly controlled by Liberty Media, Liberty Media
International, Inc. or any of their respective Affiliates (as defined
in the Liberty Loan Agreement).
"LIBERTY LOAN AGREEMENT" means the $1,225,000,000 loan agreement dated as
of 25 May 2001 made between Belmarken Holding B.V., UPC, UPC Internet
Holding B.V. and Liberty-Belmarken, Inc.
"LIBERTY MEDIA" means Liberty Media Corporation, a Delaware corporation
with its registered address at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, 00000, X.X.X.
"LOAN" means the aggregate principal amount for the time being outstanding
hereunder.
"MANAGEMENT BASE CASE" means the management base case financial and
operational projections for the Group produced by the Borrower and
delivered to the Facility Agent pursuant to Clause 2.4 (CONDITIONS
PRECEDENT).
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 7 (MANDATORY COSTS FORMULA).
"MARGIN" means:
(a) for the period from (and including) the date of this Agreement to (but
excluding) the date falling six months after the date hereof, 1.25 per
cent. per annum; and
(b) at all times from (and including) the date falling six months after
the date of this Agreement, 1.50 per cent. per annum,
PROVIDED THAT upon the occurrence of a Liberty Event the Margin shall be
2.00 per cent. per annum,
PROVIDED FURTHER THAT if the ratio of Consolidated Net Debt to Consolidated
EBITDA as determined in the Compliance Certificate most recently delivered
to the Facility Agent
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pursuant to Clause 15.4 (DELIVERY OF REPORTS) exceeds 4.0:1 then the Margin
shall be increased by 0.30 per cent. per annum over what it would otherwise
have been, with any such change to take effect as of the date of the
financial statements to which such Compliance Certificate relates and:
(iii) where the Margin is retroactively reduced following delivery of a
Compliance Certificate, any amount in respect of Margin overpaid by
the Borrower to the Banks for the period between the date of such
financial statements and the date such Compliance Certificate is
delivered shall be repaid by the Banks to the Borrower on the last
day of the first Term to end after such Compliance Certificate is
delivered which payment shall, provided no Event of Default or
Potential Event of Default has occurred which is continuing, be made
by being set-off against the amount payable by the Borrower to the
Banks on such date; and
(iv) where the Margin is retroactively increased following delivery of a
Compliance Certificate, any amount in respect of Margin owing by the
Borrower to the Banks for the period between the date of such
financial statements and the date such Compliance Certificate is
delivered shall be paid by the Borrower to the Facility Agent for
the account of the Banks on the last day of the first Term to end
following delivery of such Compliance Certificate (insofar as such
Margin is accrued during a Term which has ended on or before the
date such Compliance Certificate was delivered) or on the last day
of each other Term (insofar as such Margin is accrued in respect of
a Term which is still continuing on the date such Compliance
Certificate is delivered).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the ability of
the Obligors (taken as a whole) to perform their payment and other material
obligations under the Finance Documents (including, for the avoidance of
doubt, the obligations of the Borrower under Clause 16 (FINANCIAL
CONDITION)).
"MONTHLY STATISTICS" means the monthly statistics of the Group to be
delivered to the Facility Agent pursuant to Clause 15.3 (MONTHLY
STATISTICS) in the form set out in Schedule 13 (FORM OF STATISTICS REPORT)
as the same may be amended from time to time with the consent of an
Instructing Group.
"MORTGAGES" means the Security Purpose Agreements entered into by EWT
Elektro- und Nachrichtentechnik GmbH, TSS Telekabel Service Sud Marketing
und Verwaltung GmbH and EWT GmbH und TSS GmbH GbR on or about the date
hereof and each notarial deed related thereto pursuant to which each land
charge and other rights are created over the properties listed in Schedule
11 (SECURED REAL PROPERTY).
"NECESSARY AUTHORISATIONS" means
(a) the Authorisations listed in Schedule 12 (NECESSARY AUTHORISATIONS);
and
(b) each other Authorisation in favour of any member of the Group
necessary for the construction, installation or operation of the Cable
Systems and/or pursuant to which such member of the Group may provide
services relating to the
9
Business to potential end customers and housing units (WOHNEINHEITEN)
and, for the avoidance of doubt, does not include the Principal
Agreements or any of them.
"NET DISPOSAL PROCEEDS" means the gross total proceeds received (or which
would have been received but for the exercise of any right of set-off or
any similar right) by any member of the Group in cash in relation to any
disposal (other than a Permitted Disposal permitted pursuant to paragraphs
(a) to (g) of the definition of "PERMITTED DISPOSAL" in this Clause 1.1) of
any assets of any member of the Group (including, without limitation and
for the avoidance of doubt, a Permitted Chemnitz Disposal) LESS, in any
such case:
(a) costs or expenses paid or incurred in relation to such disposal (and
the amount of any costs or expenses to become payable or to be
incurred in relation to such disposal, as reasonably estimated by the
relevant member of the Group);
(b) any VAT paid or payable by such member of the Group in relation to
such disposal; and
(c) any capital gains or other sales taxes incurred and required to be
paid (or to be incurred or to become payable) by such member of the
Group in relation to such disposal as reasonably determined in good
faith by such member of the Group on the basis of existing tax rates
applicable thereto and after taking into account all available
credits, deductions and allowances.
"NET INCOME" means, in respect of any period and for any period the net
profit after taxes for such period, as determined in accordance with GAAP.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (NOTICE OF DRAWDOWN).
"OBLIGOR" means the Borrower or a Guarantor.
"ORIGINAL FINANCIAL STATEMENTS" means the audited financial statements of
the Borrower and the unconsolidated financial statements of each Obligor,
each in respect of the financial year ended 31 December 2000.
"PARTICIPATING MEMBER STATE" means any member state of the European Union
that has adopted the Euro as its lawful currency at the relevant time.
"PCOM AG" means PCom AG, a German stock corporation, registered in the
commercial register of the local court of Mainz, Federal Republic of
Germany, under HRB 7677.
"PERMITTED ACQUISITIONS" means:
(a) any acquisitions of assets or services in the ordinary course of
business; and
(b) any acquisitions of the share capital of, or assets and liabilities
of, a member of the Group by a member of the Group as part of the
solvent reorganisation of the Group but subject to Clause 17.25
(MAINTENANCE OF OBLIGATIONS); and
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(c) any acquisition of any assets acquired in exchange for assets disposed
of pursuant to a disposal which is a Permitted Disposal detailed in
paragraph (c) of the definition thereof provided that the conditions
set out in such paragraph of such definition are met.
"PERMITTED BORROWINGS" means, without duplication:
(a) any Borrowed Money arising under the Finance Documents;
(b) any Borrowed Money approved in writing by the Facility Agent (acting
on the instructions of the Instructing Group);
(c) any Shareholder Loan provided that such Shareholder Loan is
subordinated and assigned in accordance with Clause 17.11
(SUBORDINATION AND ASSIGNMENT OF AMOUNTS OWED TO RELEVANT PERSONS)
(where Affiliate in the definition of Relevant Person, as Relevant
Person is used in the definition of Shareholder Loan, is defined by
reference to "Subsidiary" as defined in the Indentures);
(d) any Borrowed Money owing by any member of the Group arising under
deferred payment agreements incurred in the ordinary course of
business provided that such Borrowed Money is deferred for no longer
than 270 days;
(e) any deposits or prepayments constituting Borrowed Money received by
any member of the Group from a customer or subscriber for its
services;
(f) any Borrowed Money owed by one member of the Group to another member
of the Group but subject to Clause 17.25 (MAINTENANCE OF OBLIGATIONS);
(g) until the date of the first Advance, all Existing Borrowings (PROVIDED
THAT this paragraph shall not limit paragraph (j) below);
(h) any Borrowed Money of any member of the Group arising as a result of
the issue by it or a financial institution of a surety or performance
bond in relation to the performance by such member of the Group of its
obligations under contracts entered into in the ordinary course of its
business (other than for the purpose of raising finance);
(i) only until the BdW Termination Date, the amount of DM 5,000,000
borrowed by EWT Communications GmbH pursuant to the BdW Agreement
provided that, without prejudice to any other provision hereof
prohibiting the granting of any Encumbrance, no member of the Group
shall incur or permit to exist any Encumbrance in order to secure or
otherwise support any Indebtedness in relation to such amount and the
creditor in respect thereof enters into an agreement in order to
subordinate its rights in respect of such Indebtedness to the
satisfaction of the Facility Agent; and
(j) any Borrowed Money in addition to the Borrowed Money falling within
paragraphs (a) to (i) above provided that the principal amount thereof
does not exceed at any time EUR 5,000,000 in aggregate (or its
equivalent).
11
"PERMITTED CHEMNITZ DISPOSAL" means a transfer, sale or disposal by any
member of the Group on bona fide arm's length commerical terms of the real
property and buildings currently owned by such member of the Group located
at Reinekerstrasse, Chemnitz, Germany.
"PERMITTED DISPOSALS" means:
(a) transfers, sales or disposals on arms' length commercial terms in the
ordinary course of trading; and
(b) disposals of assets on bona fide arm's length commercial terms where
such assets are obsolete;
(c) disposals of assets in exchange for other assets of comparable type
and quality having a fair market value not less than the assets
disposed of (for the purposes of paragraph (ii)(3) below, "EXCHANGE
ASSETS") either:
(i) with the consent of the Facility Agent acting on the instructions
of an Instructing Group not to be unreasonably withheld; or
(ii) in the case of any disposal which includes, directly or
indirectly, the disposition by any member of the Group of its
entitlement to receive subscriber revenues (a "DISPOSAL OF
SUBSCRIBERS"), subject to the conditions that:
(1) the revenues which are included in such disposition do not
exceed, when aggregated with the revenues which are the
subject of each other Permitted Disposal falling under this
paragraph (c)(ii), 10% of the total revenues of the Group
(as determined by reference to the most recent set of
Quarterly Management Accounts delivered to the Facility
Agent pursuant to Clause 15.2 (QUARTERLY MANAGEMENT
ACCOUNTS));
(2) the assets acquired in exchange for the relevant assets
disposed of generate revenues from subscribers to services
provided by members of the Group in the ordinary course of
business;
(3) the person from whom the relevant Exchange Assets are
acquired is an Approved Party (and for the purpose "APPROVED
PARTY" means Xxxxxxxx Associates and e-Kabel); and
(4) the projections contained in the Management Base Case
relating to EBITDA, cashflow and revenues would not be less
had the projections taken into account the relevant disposal
and the acquisition of the Exchange Assets;
(d) disposals of assets on bona fide arm's length commercial terms where
the proceeds of such disposal are to be reinvested in the Business
within one month of such disposal taking place with the consent of the
Facility Agent acting on the instructions of an Instructing Group; and
12
(e) any disposal by one member of the Group to another member of the Group
but subject to Clause 17.25 (MAINTENANCE OF OBLIGATIONS);
(f) any other disposal not falling within paragraphs (a) to (e) above
provided that such disposal is conducted on arm's length terms and for
fair market value and the consideration received for such disposal is
not more than:
(i) for any single transaction or, when aggregated with each other
disposal falling within this paragraph (f) which forms part of a
series of related transactions, 5% of Annualised EBITDA of the
Group; and
(ii) when aggregated with each other disposal falling within this
paragraph (f), 10% of Annualised EBITDA of the Group
in each case, as determined either: (1) by the most recent set of
Quarterly Management Accounts delivered pursuant to Clause 15.2
(QUARTERLY MANAGEMENT ACCOUNTS) or, (2) if the annual audited
consolidated financial statements of the Group have been delivered to
the Facility Agent in respect of the period to which such Quarterly
Management Accounts relate, the annual audited consolidated statements
of the Group delivered to the Facility Agent pursuant to Clause 15.1
(FINANCIAL STATEMENTS) for such period;
(g) any disposal of any shares in or assets or revenues of any member of
the Group having the effect referred to in Clause 9.3.2 or 9.3.3
provided that the Facility Agent shall be satisfied that the Borrower
shall, upon such disposal be in a position to, and will, comply with
its obligations under Clause 9.3 (MANDATORY PREPAYMENT ON CONTRIBUTION
TO PRIMACOM); and
(h) any disposal not falling within paragraphs (a) - (g) above provided
that an Instructing Group is satisfied (acting reasonably) that the
Borrower will be in a position to comply, and will comply, with its
obligations pursuant to Clause 9.4 (MANDATORY PREPAYMENT ON DISPOSAL)
in respect of the Net Disposal Proceeds relating thereto.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance arising hereunder or under any Security Document;
(b) (i) subject to sub-paragraph (ii), until the first Drawdown Date, any
Encumbrance securing Existing Borrowings (and created prior to the
date hereof) and
(ii) any Encumbrance securing Existing Borrowings (and created prior to the
date hereof) in relation to the properties listed in Schedule 11
(SECURED REAL PROPERTY) to the extent that such Encumbrance exists
only by reason of being registered in the competent land register
PROVIDED THAT the relevant Existing Borrowings and any related amounts
have been fully and finally repaid and/or otherwise discharged and
such Encumbrance has been fully and finally released,
PROVIDED THAT this sub-paragraph (b) shall not limit sub-paragraph (g)
below;
13
(c) any liens arising by operation of law or in the ordinary course of
business by way of contract which secure Indebtedness under any
agreement for the supply of goods or services in respect of which
payment is not deferred for more than 270 days;
(d) any Encumbrance approved in writing by the Facility Agent (acting on
the instructions of the Instructing Group);
(e) any Encumbrance arising by virtue of any retention of title or title
transfer arrangement entered into in the ordinary course of business;
(f) any Encumbrance imposed by any taxation or governmental authority in
respect of amounts which are being contested in good faith and not yet
payable or for which adequate reserves have been set aside in the
books of the Group in respect of the same in accordance with GAAP; or
(g) any Encumbrance not permitted by paragraphs (a) to (f) above which
secures Indebtedness of the members of the Group (including any
Permitted Existing Borrowings) having a principal amount of not more
than EUR 5,000,000 (or equivalent) in aggregate.
"PERMITTED EXISTING BORROWINGS" means the Existing Borrowings listed in
Part B of Schedule 10 (EXISTING BORROWINGS).
"POTENTIAL EVENT OF DEFAULT" means any event which would become (with the
passage of time, the giving of notice or any combination thereof) an Event
of Default
"PRIMACOM" means PrimaCom AG, a German stock corporation, registered in the
commercial register of the local court of Mainz, Federal Republic of
Germany, under HRB 7164.
"PRINCIPAL AGREEMENTS" means the documents and agreements listed in
Schedule 6 (PRINCIPAL AGREEMENTS).
"PROJECT" means the carrying on of the Business in those locations where
the necessary Registrations have been effected or, if not effected but
applied for, where any member of the Group is permitted to carry on the
Business pending Registration.
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are
then zero, by its Commitment to the Total Commitments immediately
prior to their reduction to zero); or
(b) whilst at least one Advance is outstanding, the proportion borne by
its share of the Loan to the Loan.
"QUALIFYING BANK" means, in relation to an Obligor, a person, being a bank
or financial institution (whether incorporated in the United Kingdom or
elsewhere), which is eligible to have payments made to it by such Obligor
under this Agreement without any
14
deduction or withholding in respect of taxes either (i) by virtue of a
double taxation treaty (assuming for this purpose only that a direction or
consent such as is referred to in Clause 10.2 (QUALIFYING BANKS) has been
given), or (ii) by virtue of the fact that no such deduction or withholding
is imposed in the jurisdiction to which such Obligor is subject.
"QUOTATION DATE" means in relation to any period for which EURIBOR is to be
determined the date falling two TARGET Days before the first day of such
period.
"QUARTER DAY" means each 31 December, 31 March, 30 June and 30 September
falling between the date hereof and the Final Maturity Date.
"QUARTERLY MANAGEMENT ACCOUNTS" means the Quarterly Management Accounts of
the Group to be delivered (or which may be delivered) to the Facility Agent
pursuant to Clause 15.2 (QUARTERLY MANAGEMENT ACCOUNTS).
"QUARTER PERIOD" means each period of approximately three months commencing
on the day after a Quarter Day and ending on the next following Quarter
Day.
"REGISTRATIONS" means the registrations by each relevant member of the
Group with the Regulatory Authority for Telecommunications and Post in
Germany or otherwise required under Telecommunications and Cable Laws in
Germany to carry on the Business from time to time or, as the case may be,
replaced from time to time in accordance with Clause 17.16.
"RELEVANT PERSON" means the Shareholder and any Affiliate of the
Shareholder which is not a member of the Group.
"RELEVANT SUBSTANCE" means any substance whatsoever (whether in a solid or
liquid form or in the form of a gas or vapour and whether alone or in
combination with any other substance) or waste which is capable of causing
harm to man or any other living organism supported by the environment, or
damaging the environment or public health or welfare.
"REPAYMENT DATE" means, in relation to any Advance, the last day of the
Term thereof.
"REPEATED REPRESENTATIONS" means each of the representations referred to in
Clause 14.19 (REPETITION).
"RESTRICTED PAYMENT" means, in each case any payment of whatsoever nature
whether in cash, securities, property or otherwise, including (a) any
direct or indirect distribution, purchase, reduction, redemption, dividend
or other payment on account of any class of share capital or capital stock
or other securities, (b) any transfers of assets, loan, gift or other
payment or (c) any payment of principal of, or interest on, any Shareholder
Loan, in each case to a Relevant Person.
"ROLLOVER ADVANCE" means an Advance which is used to refinance a maturing
Advance and which is in the same amount and the same currency as such
maturing Advance and is to be drawn on the day such maturing Advance is to
be repaid.
"SECURITY" means all security interests from time to time constituted by or
pursuant to, or evidenced by, the Security Documents.
15
"SECURITY DOCUMENTS" means:
(a) the Share Pledges;
(b) the Shareholder Loan Assignments, if any;
(c) the Subordination Agreements, if any;
(d) the Bank Account Pledges;
(e) the Mortgages.
"SECURITY PROVIDERS" means those persons (other than the Finance Parties)
that have entered into any of the Security Documents from time to time.
"SHAREHOLDER" means UPC Germany GmbH.
"SHAREHOLDER LOAN ASSIGNMENTS" means each assignment, if any, of
Shareholder Loans given by a Relevant Person to the Security Agent pursuant
to Clause 17.11 (SUBORDINATION AND ASSIGNMENT OF AMOUNTS OWED TO RELEVANT
PERSONS).
"SHAREHOLDER LOANS" means any Borrowed Money incurred by any member of the
Group which is owed to any Relevant Person.
"SHARE PLEDGES" means:
(f) the pledge of shares dated on or about the date hereof entered into by
the Shareholder in respect of all the shares in the Borrower;
(g) the pledge of shares dated on or about the date hereof entered into by
the Borrower in respect of all the shares in EWT Communications GmbH;
(h) the pledge of shares dated on or about the date hereof entered into by
the Borrower in respect of all the shares in TSS Telekabel Service Sud
Marketing und Verwaltung GmbH;
(i) the pledge of shares dated on or about the date hereof entered into by
the Borrower in respect of all the shares RFC Radio, Fernesh und
Computertechnik GmbH;
(j) the pledge of interests dated on or about the date hereof entered into
by the Borrower and TSS Telekabel Service Sud Marketing und Verwaltung
GmbH in respect of all the interests in the partnership under the
German Civil Code EWT GmbH und TSS GmbH GbR.
"SUBORDINATION AGREEMENTS" means each agreement, if any, entered into by a
Relevant Person and one or more Finance Parties pursuant to Clause 17.11
(SUBORDINATION AND ASSIGNMENT OF AMOUNTS OWED TO RELEVANT PERSONS).
"SUBSIDIARY" of a person means any company or entity directly or indirectly
controlled by such person, for which purpose "CONTROL" means ownership of
more than 50 per cent.
16
of the economic and/or voting share capital (or equivalent right of
ownership of such company or entity).
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TELECOMMUNICATIONS AND CABLE LAWS" means all laws, statutes, regulations
and judgements relating to telecommunications, cable television and data
services applicable to any member of the Group and/or the business
carried on by any member of the Group.
"TERM" means, save as otherwise provided herein:
(a) in relation to any Advance, the period for which such Advance is
borrowed as specified in the Notice of Drawdown relating thereto; and
(b) in relation to an Unpaid Sum, any of those periods mentioned in Clause
23.1 (DEFAULT INTEREST PERIODS).
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (FORM OF TRANSFER CERTIFICATE) signed by a Bank and a
Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of all or a
part of such Bank's rights, benefits and obligations under the Finance
Documents upon and subject to the terms and conditions set out in
Clause 30.3 (ASSIGNMENTS AND TRANSFERS BY BANKS); and
(b) such Transferee undertakes to perform the obligations it will assume
as a result of delivery of such certificate to the Facility Agent as
contemplated in Clause 30.4 (TRANSFERS BY BANKS).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer by novation
all or part of such Bank's rights, benefits and obligations under the
Finance Documents.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which
was signed Maastricht on 7 February 1992 and came into force on 1
November 1993).
"TSS" means TSS Telekabel Service Sud Marketing und Verwaltung GmbH.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 23.1 (DEFAULT INTEREST PERIODS).
"UPC" means United Pan-Europe Communications N.V.
17
"UPC GROUP" means UPC and its Subsidiaries from time to time.
"UPC INDENTURES" means the Indentures referred to in sub-paragraphs (c)
to (j) of the definition of "Indentures" in this Clause 1.1
(DEFINITIONS).
1.2 INTERPRETATION
Any reference in this Agreement to:
an "AGENT" or any "BANK" shall be construed so as to include its and any
subsequent successors and permitted transferees in accordance with their
respective interests;
"CONTINUING", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been remedied or waived in
accordance with the terms hereof and, in relation to a Potential Event of
Default, one which has not been remedied within the relevant grace period
or waived in accordance with the terms hereof;
For the purpose of the definitions of "Liberty Event" in Clause 1.1
(DEFINITIONS), "CONTROL" means in relation to any person:
1.2.1 the power of a person:
(a) by means of the holding of shares or the possession of
voting power in or in relation to any other person; or
(b) by virtue of any powers conferred by the articles of
association or other documents regulating any other person,
to direct or cause the direction of the management and policies
of that other person; or
1.2.2 the holding of more than one-half of the issued share capital of
that person (excluding any part of that issued share capital
that carries no right to participate beyond a specified amount
in a distribution of either profits or capital).
the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of an
amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange
quoted by the Facility Agent at or about 11.00 a.m. on such date for the
purchase of the first currency with the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory body
or court;
a "MEMBER STATE" shall be construed as a reference to a member state of
the European Union;
18
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month, except that:
(a) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on
the immediately preceding Business Day;
(c) if there is no numerically corresponding day in the calendar month in
which that period is to end, that period shall end on the last
Business Day in that calendar month.
The above rules will only apply to the last month of any period.
a "PERSON" shall be construed as including references to an individual,
firm, company, corporation, incorporated body of persons or any state or
any of its agencies together with its successors and permitted assigns.
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be, the
corresponding derivative form thereof);
a "SUCCESSOR" shall be construed so as to include an assignee or successor
in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including any penalty or interest payable
in connection with any failure to pay or any delay in paying any of the
same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or analogous
proceedings under the law of the jurisdiction in which such company or
corporation is incorporated or any jurisdiction in which such company or
corporation carries on business.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"EUR" and "EURO" means the single currency unit of the Participating Member
States. "DM" means deutschemarks being the lawful currency of the Federal
Republic of Germany.
1.4 AGREEMENTS AND STATUTES
Unless expressly provided otherwise in this Agreement, any reference in
this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or
19
document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to Amsterdam time.
1.7 FACILITY AGENT'S OPINION
Where this Agreement provides for the Facility Agent's opinion to determine
whether any matter would or is reasonably likely to have a Material Adverse
Effect, the Facility Agent shall act in accordance with the instructions of
the Instructing Group.
1.8 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or enjoy the
benefit of any term of this Agreement.
2. THE FACILITY
2.1 GRANT OF THE FACILITY
The Xxxxx xxxxx to the Borrower, upon the terms and subject to the
conditions hereof, a revolving loan facility in an aggregate amount of EUR
90,000,000.
2.2 PURPOSE AND APPLICATION
The Facility is intended to enable the following:
2.2.1 the financing of the capital expenditure, working capital
requirements and operating expenses of the Group;
2.2.2 the refinancing of the Existing Borrowings (other than the
Permitted Existing Borrowings) provided that the aggregate
principal amount refinanced shall not exceed EUR 75,000,000; and
2.2.3 the payment of all fees and expenses (including, without
limitation, interest payments) in connection with the provision of
the Facility,
and the Borrower will ensure that all amounts borrowed under the Facility
are applied towards such purposes.
2.3 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
2.4 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, the obligation of each Bank to make
its Commitment available under this Facility shall be subject to the
condition that the
20
Facility Agent, or its duly authorised representative, shall have received,
not later than three Business Days before the day on which the first
Advance is to be made the documents and other evidence listed in part I of
Schedule 3 in a form and substance satisfactory to the Facility Agent
(acting reasonably).
2.5 NOTIFICATION
The Facility Agent shall notify the Banks and the Borrower promptly after
receipt by it of the documents and evidence referred to in Clause 2.4
(CONDITIONS PRECEDENT).
2.6 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of the
Borrower towards any other party hereto nor shall any other party be liable
for the failure by such Bank to perform its obligations hereunder.
2.7 BANKS' RIGHTS SEVERAL
The rights of each Bank are several and any debt arising hereunder at any
time from the Borrower to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to protect
and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for any
party hereto to be joined as an additional party in any proceedings for
this purpose) but nothing in this Clause shall entitle any individual Bank
to take any action contemplated by Clause 19.16 (ACCELERATION AND
CANCELLATION) or Clause 19.17 (DEMAND BASIS) other than in accordance with
those Clauses.
3. UTILISATION OF THE FACILITY
3.1 DELIVERY OF NOTICE OF DRAWDOWN
Subject to the terms and conditions of this Agreement, an Advance will be
made available to the Borrower following receipt by the Facility Agent from
the Borrower and countersigned by the Shareholder of a Notice of Drawdown
not later than 10.00 a.m. on the third Business Day before the proposed
Drawdown Date. A Notice of Drawdown shall be effective upon receipt by the
Facility Agent and once given shall, subject as provided in Clause 5
(MARKET DISRUPTION), be irrevocable. No Notice of Drawdown may be given in
respect of amounts which are subject to a notice received by the Facility
Agent pursuant to Clause 8.1 (CANCELLATION).
3.2 DRAWDOWN DETAILS
Each Notice of Drawdown delivered to the Facility Agent pursuant to Clause
3.1 (DELIVERY OF NOTICE OF DRAWDOWN) shall specify:
3.2.1 the proposed Drawdown Date in respect of the Advance requested,
which shall be a Business Day falling before the Final Maturity
Date;
3.2.2 the amount of the Advance requested, which shall be (a) (if less
than the Available Facility) an amount of EUR 3,000,000 (until such
time as there is more than one Bank in which case EUR 10,000,000)
and an integral multiple of EUR 1,000,000 or (b) equal to the
amount of the Available Facility;
21
3.2.3 the proposed Term of the Advance requested, which shall be a period
of one, two or three months or such other period as may be agreed
by the Facility Agent (acting reasonably) ending on or before the
Final Maturity Date; and
3.2.4 the account to which the proceeds of the proposed Advance are to be
paid.
3.3 DRAWDOWN CONDITIONS
If the Borrower requests an Advance in accordance with the preceding
provisions of this Clause 3 and, on the proposed date for the making of
such Advance:.
3.3.1 the principal amount of such Advance and all advances outstanding
does not exceed the Available Facility;
3.3.2 there would not on and as of the proposed date for the making of
such Advance be more than 5 Advances Outstanding;
3.3.3 (a) no Event of Default or (save in relation to a Rollover Advance)
Potential Event of Default is continuing or would result from the
making of such Advance and (b) (save in relation to a Rollover
Advance) the Repeated Representations are true in all material
respects by reference to the facts and circumstances then
subsisting; and
3.3.4 the aggregate principal amount of the Consolidated Net Borrowings
as at the most recent Quarter Day in respect of which Quarterly
Management Accounts have been delivered to the Facility Agent
pursuant to this Agreement when aggregated with the amount of the
Advance does not and will not as a result of the making of such
Advance exceed:
2(A + B) x 4.5
where:
A: means Consolidated EBITDA for the Quarter Period ending on such
Quarter Day; and
B: means Consolidated EBITDA for the Quarter Period ending on the
immediately preceding Quarter Day,
then, save as otherwise provided herein, such Advance will be made in
accordance with the provisions hereof.
3.4 EACH BANK'S PARTICIPATION
Each Bank will participate through its Facility Office in each Advance made
pursuant to this Clause 3 in the proportion borne by its Available
Commitment to the Available Facility immediately prior to the making of
that Advance.
3.5 REDUCTION OF AVAILABLE COMMITMENT
If a Bank's Commitment is reduced in accordance with the terms hereof after
the Facility Agent has received the Notice of Drawdown for an Advance and
such reduction was not taken into account in the Available Facility, then
the amount of that Advance shall be reduced accordingly.
22
3.6 REDUCTION OF COMMITMENTS UNTIL BDW TERMINATION DATE
Until the BdW Termination Date, the Total Commitments shall be reduced by
the amount of EUR 2,500,000 and the Commitment of each Bank shall be
reduced rateably. On the BdW Termination Date, the Total Commitments shall
be increased in the amount of EUR 2,500,000 and the Commitment of each Bank
shall be increased rateably.
4. PAYMENT AND CALCULATION OF INTEREST
4.1 PAYMENT OF INTEREST AND APPLICABLE MARGIN
On the Repayment Date relating to each Advance (and, if the Term of such
Advance exceeds three months, on the expiry of each period of three months
during such Term) the Borrower shall pay accrued interest on that Advance.
4.2 CALCULATION OF INTEREST
The rate of interest applicable to an Advance from time to time during its
Term shall be the rate per annum which is the sum of:
4.2.1 the Margin during such Term;
4.2.2 Mandatory Cost, if any; and
4.2.3 EURIBOR for such Term.
5. MARKET DISRUPTION
5.1 MARKET DISRUPTION
If, in relation to any Advance:
5.1.1 it is not possible for EURIBOR to be calculated in accordance with
paragraph (b) of the definition thereof; or
5.1.2 before the close of business in Amsterdam on the Quotation Date for
such Advance, the Facility Agent has been notified by a Bank or
each of a group of Banks to whom in aggregate more than fifty per
cent. of the aggregate amount of such Advance is (or, in the case
of an undrawn Advance, if such Advance were then made, would be)
owed that EURIBOR does not accurately reflect the cost to it of
obtaining such deposits,
then, unless Clause 5.2 applies:
(a) if Clause 5.1.1 above applies, the duration of that Term shall be
one month, or if less, such that it shall end on the Final Maturity
Date; and
(b) if either Clause 5.1.1 or Clause 5.1.2 above applies, the rate of
interest applicable to each of Bank's portion of such Advance from
time to time during such Term shall be the rate per annum which is
the sum of the Margin at such time and the rate per annum which is
the arithmetic mean of the rates notified to the Facility Agent by
each Bank before the last day of such Term to be that which
expresses as a percentage rate per annum the cost to each Bank of
funding from whatever sources it may reasonably select its portion
of such Advance during such Term.
23
5.2 NO ADVANCES
If, as a result of any event or circumstance giving rise to an event
referred to in Clause 5.1.1 or Clause 5.1.2, the Banks are unable to fund
an Advance during the Term relating thereto, such Banks shall notify the
Facility Agent by no later than 11.30 a.m. Central European time on the
Quotation Date for such Advance, the Facility Agent shall promptly notify
the relevant Borrower and, if such Advance is an Advance (other than a
Rollover Advance) which has not then been made, such Advance shall not be
made.
5.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
If either of those events mentioned at Clause 5.1.1 or Clause 5.1.2 occurs
in relation to an Advance and the Term relating thereto then subject to 5.2
(NO ADVANCES):
5.3.1 the Facility Agent shall notify the relevant Borrower and the Banks
of such event;
5.3.2 within five days of such notification the Facility Agent and the
Borrower shall enter into negotiations with a view to agreeing a
substitute basis (1) for determining the rates of interest from
time to time applicable to the Advances and/or (2) upon which the
Advances may be maintained thereafter and any such substitute basis
that is agreed shall take effect in accordance with its terms and
be binding on each party hereto; provided that the Facility Agent
may not agree any such substitute basis without the prior consent
of each Bank.
5.4 FAILURE TO AGREE SUBSTITUTE BASIS
If a substitute basis is not so agreed in relation to an Advance within 20
days from the date of notification referred to in Clause 5.3.1, the rate of
interest applicable to each Bank's portion of such Advance from time to
time during the Term shall be the rate per annum which is the sum of the
Margin at such time and the rate per annum notified to the Facility Agent
by each such Bank before the last day of such Term to be that which
expresses as a percentage rate per annum the cost to such Bank of funding
from whatever sources it may reasonably select its portion of such Advance
during such Term.
6. NOTIFICATION
6.1 ADVANCES AND TERM
The Facility Agent shall notify each Bank and the Borrower of the amount of
the relevant Advance, its proposed Term and currency and the aggregate
principal amount of the relevant Advance allocated to such Bank pursuant to
Clause 3.4 (EACH BANK'S PARTICIPATION).
6.2 INTEREST RATE DETERMINATION
The Facility Agent shall promptly notify the Borrower and the Banks of each
determination of EURIBOR, the Mandatory Costs and the Margin.
6.3 CHANGES TO CURRENCY OR INTEREST RATES
The Facility Agent shall promptly notify the Borrower and the Banks of any
change in interest rate or Term occasioned by the operation of Clause 5
(MARKET DISRUPTION).
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7. REPAYMENT
The Borrower shall repay each Advance made to it in full on the Repayment
Date relating thereto.
8. VOLUNTARY CANCELLATION AND PREPAYMENT
8.1 CANCELLATION
The Borrower may, by giving to the Facility Agent not less than five
Business Days' prior notice to that effect, cancel the whole or any part
(being an amount of not less than EUR 10,000,000 and an integral multiple
of EUR 1,000,000) of the Available Facility. Any such cancellation shall
reduce the Total Commitments and the Commitment of each Bank rateably.
8.2 VOLUNTARY PREPAYMENT
The Borrower may subject to Clause 23.4 (BREAK COSTS) without premium or
penalty, by giving to the Facility Agent not less than five Business Days'
prior notice to that effect, prepay the whole or any part (being an amount
of not less than EUR 10,000,000 and an integral multiple of EUR 1,000,000)
of an Advance.
8.3 ADDITIONAL VOLUNTARY PREPAYMENT
The Borrower may also prepay (in whole but not in part only), without
premium or penalty by giving to the Facility Agent not less than five
Business Days' prior notice subject to Clauses 10.1 (TAX GROSS-UP), 11
(INCREASED COSTS) and 23.4 (BREAK COSTS), the share of any Bank to which it
shall have become obliged to pay additional amounts under Clauses 10.1 (TAX
GROSS-UP), 11 (INCREASED COSTS) or 23.4 (BREAK COSTS). Upon any notice of
such prepayment being given, the Commitment of the relevant Bank shall be
reduced to zero and the amount of the Total Commitments shall be reduced
accordingly.
8.4 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by the Borrower pursuant to
Clause 8.1 (CANCELLATION), Clause 8.2 (VOLUNTARY PREPAYMENT) or Clause 8.3
(ADDITIONAL VOLUNTARY PREPAYMENT) shall be irrevocable and shall specify
the date upon which such cancellation or prepayment is to be made and the
amount of such cancellation or prepayment.
8.5 PREPAYMENT OF A BANK'S COMMITMENT
If the Borrower gives notice of prepayment pursuant to Clause 8.3
(ADDITIONAL VOLUNTARY PREPAYMENT), it shall, at the time such notice
expires prepay the relevant Bank's share of all outstanding Advances
together with accrued interest thereon and all other amounts owing to such
Bank hereunder.
9. MANDATORY PREPAYMENT
9.1 MANDATORY PREPAYMENT ON CHANGE OF CONTROL
Subject to Clause 9.6 (LIBERTY EXEMPTION), if:
9.1.1 UGC and New UGC (each as defined in the Liberty Loan Agreement)
collectively cease:
25
(a) directly or indirectly to own more than 50 per cent. of the
issued share capital of UPC; and
(b) to control UPC;
9.1.2 UPC ceases (directly or indirectly) to have any of the powers
described in Clause 9.2.1 in respect of the Borrower or ceases to
control the Borrower as defined in Clause 9.2.2; or
9.1.3 the Borrower or any other Security Provider breaches or contravenes
the terms of the share pledge agreement dated on or about the date
hereof between the Borrower or such Security Provider as pledgor
and The Royal Bank of Scotland plc as pledgee and security agent by
ceasing to own (directly or indirectly) at least 75 per cent. of
the issued share capital of any Guarantor,
then the Borrower shall promptly notify the Facility Agent upon becoming
aware of that event and, if an Instructing Group so requires, the Facility
Agent shall, by not less than 20 days notice to the Borrower, cancel the
Facilities and the Borrower shall repay all outstanding Advances, together
with accrued interest, and all other amounts accrued under the Finance
Documents upon the date such cancellation becomes effective (and on such
date each Bank's Commitment shall be reduced to zero).
9.2 CONTROL
For the purpose of this Clause 9 "CONTROL" means in relation to any
person:
9.2.1 the power of a person:
(a) by means of the holding of shares or the possession of voting
power in or in relation to any other person; or
(b) by virtue of any powers conferred by the articles of
association or other documents regulating any other person,
to direct or cause the direction of the management and
policies of that other person; or
9.2.2 the holding of more than one-half of the issued share capital of
that person (excluding any part of that issued share capital that
carries no right to participate beyond a specified amount in a
distribution of either profits or capital).
9.3 MANDATORY PREPAYMENT ON CONTRIBUTION TO PRIMACOM
Subject to Clause 9.6 (LIBERTY EXEMPTION), upon:
9.3.1 the Borrower becoming directly or indirectly controlled by PrimaCom
or any of its Subsidiaries or Affiliates (or any successor to
PrimaCom or any of its Subsidiaries or Affiliates by merger,
acquisition, amalgamation or otherwise) in each case which does not
control the Borrower on the date hereof;
9.3.2 PrimaCom or any of its Subsidiaries or Affiliates (or any successor
to PrimaCom or any of its Subsidiaries or Affiliates by merger,
acquisition, amalgamation or otherwise) becoming after the date
hereof the owner, directly
26
or indirectly, of 50% or more of the shares in, or 50% or more of
the other assets or revenues of, any member of the Group; or
9.3.3 50% or more of the shares in, or 50% or more of the other assets or
revenues of, any member of the Group being contributed to PrimaCom
or any Subsidiary or Affiliate of PrimaCom or PCom AG (or any
successor to PrimaCom or any of its Subsidiaries or Affiliates by
merger, acquisition, amalgamation or otherwise),
the Borrower shall prepay all of the then outstanding Advances (together
with accrued interest thereon) and all other amounts payable under the
Finance Documents (including, without limitation, any amount payable
pursuant to Clause 23.4 (BREAK COSTS)) on the date that (a) the Borrower
becomes so controlled, (b) PrimaCom, such successor thereto or such
Subsidiary or Affiliate of PrimaCom becomes the owner of such shares and/or
assets and/or revenues, or (c) such shares, assets or revenues are so
contributed and the Facility shall be cancelled and each Bank's Commitment
shall be reduced to zero on such date. For the purposes of this Clause the
50% calculation shall be made by reference to the number of shares in issue
at the date hereof or the value of the assets or revenues as at the date of
the relevant Original Financial Statements.
9.4 MANDATORY PREPAYMENT ON DISPOSAL
The Borrower shall apply an amount equal to any Net Disposal Proceeds in or
towards prepayment of the Facility promptly following (but, in any event,
within five Business Days of) the date of receipt of the same by any member
of the Group, (or date of exercise of the relevant right of set-off or
similar right where proceeds are not so received). Amounts prepaid pursuant
to this Clause 9.4 shall not be available for reborrowing and, upon the
date of such prepayment, the Total Commitments shall be reduced by the
amount so prepaid and the Commitment of each Bank reduced rateably.
9.5 MANDATORY PREPAYMENT OF INSURANCE PROCEEDS
The Borrower shall, promptly following (but, in any event, within five
Business Days of) receipt of the same by any member of the Group, apply an
amount equal to the proceeds (net of reasonable costs and expenses and, if
any, taxes associated with the relevant insurance claim) of any insurance
("INSURANCE PROCEEDS") received by any member of the Group either:
9.5.1 towards prepayment of the Loan;
9.5.2 in the replacement, reinstatement and/or repair of the assets in
respect of which the relevant insurance claim was made; or
9.5.3 if the relevant replacement, reinstatement and/or repair of the
assets in respect of which the relevant insurance claim was made
will not take place within the relevant five Business Day period
referred to above, in payment to an account in the name of the
Borrower and secured in favour of the Finance Parties on terms
providing a first ranking, fully perfected security interest as
security for the Borrower's obligations hereunder for application
in such replacement, reinstatement and/or repair or otherwise in
repayment of the Loan.
27
9.6 LIBERTY EXEMPTION
Notwithstanding any provision of this Clause 9 (other than Clause 9.7) or
any other provision of this Agreement, the Borrower shall not be obliged to
repay the Loan and no Finance Party shall have the right to declare the
Loan (or any part of it) immediately due and payable and/or to cancel the
whole (or any part) of the Total Commitments as a result of any:
9.6.1 acquisition, ownership or disposition of any equity interest in, or
control of any member of the UPC Group by;
9.6.2 sale of assets of any member of the UPC Group to;
9.6.3 purchase of assets by any member of the UPC Group from; or
9.6.4 participation in management of any member of the UPC Group by, or
by any designee of
Liberty Media, Liberty Media International, Inc. or any of their respective
Affiliates (PROVIDED THAT, for the purpose of this Clause 9.6 only,
Affiliate shall have the meaning given thereto in the Liberty Loan
Agreement).
9.7 MANDATORY PREPAYMENT UPON EWT/PRIMACOM MERGER
Notwithstanding Clause 9.6, upon the occurrence of an EWT/PrimaCom Merger,
the Borrower (or, if applicable, the EWT/PrimaCom Merged Entity) shall
prepay all of the then outstanding Advances (together with accrued interest
thereon) and all other amounts payable under the Finance Documents
(including, without limitation, any amount payable pursuant to Clause 23.4
(BREAK COSTS)) on the date that the EWT/PrimaCom Merger is completed and
effective and the Facility shall be cancelled and each Bank's Commitment
shall be reduced to zero on such date.
10. TAXES
10.1 TAX GROSS-UP
Subject to Clause 10.2 (QUALIFYING BANKS), if, at any time, any Obligor is
required to make any deduction or withholding in respect of taxes from any
payment due under the Finance Documents for the account of any of the
Finance Parties, the sum due from such Obligor in respect of such payment
shall, subject to the relevant Finance Party's compliance with Clause 10.4
(CERTIFICATION TO SECURE A TAX BENEFIT), be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, each Finance Party receives on the due date for such payment
(and retains, free from any liability in respect of such deduction or
withholding) a net sum equal to the sum which it would have received had
no such deduction or withholding been required to be made and the Borrower
shall indemnify each Finance Party against any losses or costs incurred by
any of them by reason of any failure of an Obligor to make any such
deduction or withholding or by reason of any increased payment not being
made on the due date for such payment. The relevant Obligor shall promptly
deliver to the Facility Agent any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any such
deduction or withholding.
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10.2 QUALIFYING BANKS
If any Finance Party is not or ceases to be a Qualifying Bank in relation
to an Obligor then it shall promptly notify the Borrower upon becoming
aware of the same and such Obligor shall not be obliged to pay such
Finance Party under Clause 10.1 (TAX GROSS-UP) any amount in excess of the
amount it would have been obliged to pay if such Finance Party was or had
not ceased to be a Qualifying Bank PROVIDED THAT this Clause 10.2 shall
not apply (and the relevant Obligor shall be obliged to comply with its
obligations under Clause 10.1) if after today's date there shall have been
any change in, or in the interpretation or application of, any relevant
law, directive, treaty (including, without limitation, any applicable
double tax treaty) or regulation or practice of any applicable taxation
authority and as a result thereof the relevant Finance Party ceases to be
a Qualifying Bank in relation to such Obligor or such Obligor will be
required to make deduction or withholding on account of tax irrespective
of whether the recipient of the relevant payment is or is not a Qualifying
Bank in relation to such Obligor. Each Finance Party confirms to the
Borrower that it is, as at the date of this Agreement, a Qualifying Bank.
10.3 CLAW-BACK OF TAX BENEFIT
If following any such deduction or withholding as is referred to in Clause
10.1 (TAX GROSS-UP) any Finance Party shall receive or be granted a credit
against or remission for any taxes payable by it, the relevant Finance
Party shall, subject to the relevant Obligor having made any increased
payment in accordance with Clause 10.1 and to the extent that the relevant
Finance Party can do so without prejudicing the retention of the amount of
such credit or remission and without prejudice to the right of the
relevant Finance Party to obtain any other relief or allowance which may
be available to it, reimburse such Obligor with such amount as the
relevant Finance Party shall in its absolute discretion certify to be the
proportion of such credit or remission as will leave the relevant Finance
Party (after such reimbursement) in no worse position than it would have
been in had there been no such deduction or withholding from the payment
by such Obligor as aforesaid. Such reimbursement shall be made forthwith
upon the relevant Finance Party certifying that the amount of such credit
or remission has been received by it. Nothing contained in this Agreement
shall oblige any Finance Party to rearrange its tax affairs or to disclose
any information regarding its tax affairs or to disclose any information
regarding its tax affairs and computations. Without prejudice to the
generality of the foregoing, the Borrower shall not, by virtue of this
Clause 10.3 be entitled to enquire about any Finance Party's tax affairs.
10.4 CERTIFICATION TO SECURE A TAX BENEFIT
Finance Party without deduction or withholding for or on account of tax or
to secure the benefit of any reduced rate of such deduction or
withholding, an Obligor requires a direction from or the consent of a
government or taxing authority, each Finance Party agrees to use its
reasonable endeavours to complete (accurately and, to the extent it can
lawfully do so without prejudice to its commercial interests, in a manner
reasonably satisfactory to such Obligor), execute, arrange for any
required certification of, and deliver to such Obligor, or such government
or taxing authority as such Obligor may reasonably direct, any form or
document reasonably required of it, and to provide such information that
such Obligor
29
or such government or taxing authority may reasonably require or request
in order to assist or enable such Obligor to secure that such a direction
or consent is given to such Obligor in respect of payment. 11. INCREASED
COSTS
11.1 INCREASED COSTS
If, by reason of (a) any change after the date hereof in law or in its
interpretation or administration and/or (b) compliance with any request or
requirement relating to the maintenance of capital or any other request
from or requirement of any central bank or other fiscal, monetary or other
authority coming into effect after the date hereof and with which banks
generally are accustomed to comply:
11.1.1 a Bank or any holding company of such Bank is unable to obtain the
rate of return on its capital which it would have been able to
obtain but for such Bank's entering into or assuming or
maintaining a commitment or performing its obligations under the
Finance Documents;
11.1.2 a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining a
commitment or performing its obligations under the Finance
Documents; or
11.1.3 there is any increase in the cost to a Bank or any holding company
of such Bank of funding or maintaining such Bank's share of the
Advances or any Unpaid Sum,
then the Borrower shall, from time to time on demand of the Facility
Agent, promptly pay to the Facility Agent for the account of that Bank
amounts sufficient to indemnify that Bank or to enable that Bank to
indemnify its holding company from and against, as the case may be, (i)
such reduction in the rate of return of capital, (ii) such cost or (iii)
such increased cost (each an "INCREASED COST").
11.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 11.1 (INCREASED COSTS)
shall notify the Facility Agent of the event giving rise to such claim,
whereupon the Facility Agent shall notify the Borrower thereof.
11.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 11, no Bank shall
be entitled to make any claim under this Clause 11:
11.3.1 in respect of any Increased Costs compensated for by Clause 10.1
(TAX GROSS-UP);
11.3.2 in respect of any Increased Costs resulting from any change in the
taxation or rate of taxation on the overall net income or gross
turnover of a Bank imposed in the jurisdiction in which such
Bank's principal office is for the time being located or on the
net income or gross turnover of a Bank's Facility Office imposed
in the jurisdiction in which that Facility Office is located;
30
11.3.3 resulting from a failure by that Bank to comply with any request
from or requirement of any central bank or other fiscal or
monetary or other authority or any applicable law;
11.3.4 in respect of any Increased Costs for which (and to the extent
that) that Bank has received compensation in respect therefor; or
11.3.5 for any Increased Costs in respect of any period falling prior to
the date which is 60 days before the date on which notice of such
Increased Costs is given to the Facility Agent by the relevant
Bank.
12. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund or
allow to remain outstanding all or part of its share of the Advances, then
that Bank shall, promptly after becoming aware of the same, deliver to the
Borrower through the Facility Agent a notice to that effect and:
12.1.1 such Bank shall not thereafter be obliged to participate in the
making of any Advances and the amount of its Commitment shall be
immediately reduced to zero; and
12.1.2 if the Facility Agent on behalf of such Bank so requires, the
Borrower shall on such date as the Facility Agent shall have
specified repay such Bank's share of any outstanding Advances
either (A) forthwith, if such unlawfulness has immediate or
retrospective effect, or (B) on future specified dates falling on
or before the latest date permitted by the relevant law or
regulation to minimise any loss or expense occurred by the
relevant Bank liquidating or employing deposits from third parties
acquired or contracted to fund and or any part of its
contribution.
13. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
13.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 10.1 (TAX GROSS-UP);
13.1.2 a claim for indemnification pursuant to Clause 11.1 (INCREASED
COSTS);
13.1.3 the reduction of its Available Commitment to zero or any repayment
to be made by the Borrower pursuant to Clause 12 (ILLEGALITY); or
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Borrower under any of the
Clauses referred to above, such Bank shall promptly upon becoming aware of
such circumstances notify the Facility Agent thereof and, in consultation
with the Facility Agent and the Borrower and to the extent that it can do
so lawfully and without prejudice to its own position, take reasonable
steps (including a change of location of its Facility Office or the
transfer of its rights, benefits and obligations hereunder to another
financial institution acceptable to
31
the Borrower and willing to participate in the Facility) to mitigate the
effects of such circumstances, PROVIDED THAT such Bank shall be under no
obligation to take any such action if, in the reasonable opinion of such
Bank, to do so might have any adverse effect upon its business, operations
or financial condition (other than any minor costs and expenses of an
administrative nature).
14. REPRESENTATIONS AND WARRANTIES
Each Obligor makes the representations and warranties set out in this
Clause 14 and acknowledges that the Banks have entered into this Agreement
in reliance of these representations and warranties:
14.1 STATUS
It is a corporation duly organised under the laws of Germany with power to
enter into each of the Finance Documents to which it is a party.
14.2 POWER TO BORROW
It has power to execute, deliver and perform its obligations under this
Agreement and the Security Documents to which it is a party and, in the
case of the Borrower, to borrow the Total Commitments and, in the case of
the Guarantors, to guarantee the Loan; all necessary corporate action has
been taken to authorise the execution, delivery and performance of the
same and (subject to applicable maintenance of capital rules) no
limitation on the powers of the Borrower to borrow or the Guarantors to
give guarantees will be exceeded as a result of borrowings or guarantees
under this Agreement.
14.3 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in the Finance Documents to
which it is a party are legal and valid obligations binding on it and
enforceable against it in accordance with the terms thereof and the
Security Documents create perfected and first ranking security in
accordance with their terms subject to (a) the qualifications as to
matters of law contained in the legal opinions referred to in Schedule 3
(CONDITIONS PRECEDENT) and mandatory provisions of law affecting creditors
rights generally and (b) in relation to the ranking of the Security
Documents only, the Encumbrances permitted under sub-paragraph (b) of the
definition of Permitted Encumbrances in Clause 1.1 ranking prior to
certain Security Documents until the first Drawdown Date or, in relation
to the Mortgages only, until the date such Permitted Encumbrances are
deleted in the competent land register (as the case may be).
14.4 EXECUTION OF THIS AGREEMENT
Its execution of the Finance Documents to which it is a party and its
exercise of its rights and performance of its obligations under the
Finance Documents do not and will not conflict in any material respect
with:
14.4.1 any agreement, mortgage, bond or other instrument or treaty to
which it is a party or which is binding upon it or any of its
assets in any way which would or is reasonably likely to cause a
material claim to be brought against any of the Finance Parties;
14.4.2 its constitutive documents; or
32
14.4.3 any applicable law.
14.5 NO MATERIAL DEFAULTS
No member of the Group is in breach of or in default under any agreement
to which it is a party or which is binding on it or any of its assets to
an extent or in a manner which would or is reasonably likely to have a
Material Adverse Effect.
14.6 NO LITIGATION
No litigation, arbitration or administrative proceeding is taking place,
pending or, to the knowledge of any Obligor, threatened against any member
of the Group in which there is a reasonable likelihood of an adverse
determination, and if adversely determined would or is reasonably likely
to have a Material Adverse Effect.
14.7 FINANCIAL STATEMENTS CORRECT AND COMPLETE
14.7.1 The Original Financial Statements have been prepared in accordance
with GAAP which principles have been consistently applied and
present fairly and accurately the financial position of the
Borrower and the Group as at such date and as at such date, no
member of the Group had any liabilities (contingent or otherwise)
which are significant in the context of the Group (taken as a
whole) or any material losses which are not disclosed by, or
reserved against or provided for in, such financial statements;
14.7.2 the unaudited Quarterly Management Accounts for the Group in
respect of the Quarter Period ended 30 June 2001 have been
prepared in accordance with GAAP (other than year end adjustments
and absence of footnotes) which principles have been consistently
applied and present fairly and accurately the results of the
operations of the Group for such Quarter Period as at such date;
and
14.7.3 the combined financial projections for the Group for the financial
years ending 2001 and 2002 inclusive, the operating statistics
projections for such financial years and the Management Base Case
have been prepared based upon historical financial information and
upon the assumptions set forth therein, which assumptions were
reasonable when made in light of current and reasonably
foreseeable business conditions and are reasonable on the date
hereof.
14.8 ENCUMBRANCES
Save for Permitted Encumbrances, no Encumbrance exists over all or any of
the present or future revenues or assets of any member of the Group.
14.9 NO FILINGS REQUIRED
Save for the filings, registrations and notarisation referred to in the
legal opinions referred to in Schedule 3, it is not necessary to ensure
the legality, validity, enforceability, admissibility in evidence or (in
the case of the Security Documents) the perfection and first ranking
nature of any of the Finance Documents that any of them or any other
instrument be notarised, filed recorded, registered or enrolled in any
court, public office or elsewhere in Germany or that any stamp,
registration or similar tax or charge be paid in Germany on or in relation
to any of the Finance Documents save for, in relation to the rank of the
Mortgages only, the deletion in the competent land register of
33
mortgages being Permitted Encumbrances within the meaning of sub-paragraph
(b)(ii) of the definition of Permitted Encumbrances in Clause 1.1.
14.10 TITLE TO ASSETS
The Borrower has a good and marketable interest in its material assets
free and clear of any Encumbrance other than Permitted Encumbrances.
14.11 INTELLECTUAL PROPERTY RIGHTS
14.11.1 The Intellectual Property Rights owned by or licensed to each
member of the Group are free from any Encumbrances (save for those
created or to be created by or pursuant to the Security Documents,
those arising by, through or under the terms on which any such
Intellectual Property Rights are licensed to the relevant member
of the Group and Permitted Encumbrances) and any other rights of
interests in favour of third parties;
14.11.2 no member of the Group in carrying on its business, to its
knowledge, infringes any Intellectual Property Rights of any third
party where any action taken by such third party in respect of any
such infringement would or is reasonably likely to have a Material
Adverse Effect;
14.11.3 the Intellectual Property Rights used by each member of the Group
are owned or validly licensed to it save where this is not the
case it would not or is not reasonably likely to have a Material
Adverse Effect; and
14.11.4 to the knowledge of the Borrower, no Intellectual Property Rights
owned by any member of the Group are being infringed, nor is there
any threatened infringement of any such Intellectual Property
Rights which, in either case would or is reasonably likely to have
a Material Adverse Effect.
14.12 CONSENTS OBTAINED & NECESSARY AUTHORISATIONS
14.12.1 Save for the filings, registrations and notarisation referred to
in the legal opinions referred to in Schedule 3, every consent,
authorisation, licence or approval of or registration with or
declaration to, governmental or public bodies or authorities of
courts (other than Necessary Authorisations) required by each
member of the Group in connection with, the execution, delivery,
validity, enforceability, admissibility in evidence or (in the
case of the Security Documents) the perfection and first ranking
nature of this Agreement and the Security Documents to which it
is a party or the performance by each member of the Group of
their respective obligations under this Agreement and the
Security Documents to which they are a party has been obtained
and is in full force and effect and there has been no material
default in the observance of the conditions or restrictions (if
any) imposed in, or in connection with, any of the same save
for, in relation to the rank of the Mortgages only, the deletion
in the competent land register of mortgages being Permitted
Encumbrances within the meaning of sub-paragraph (b)(ii) of the
definition of Permitted Encumbrances in Clause 1.1.
14.12.2 Other than the Necessary Authorisations listed in Schedule 12
(NECESSARY AUTHORISATIONS), there is no consent, authorisation,
licence, permit, right, or
34
approval from or registration with or declaration to,
governmental or public bodies or authorities of courts in favour
of or on the part of any member of the Group the revocation,
withdrawal, suspension, cancellation, absence, termination,
expiry or ceasing to be in full force and effect of which alone
would or is reasonably likely to have a Material Adverse Effect.
14.13 INFORMATION
To the best of its knowledge and belief, the factual information relating
to the Group contained in the Information is and remains true and
accurate in all material respects, all opinions, projections and
forecasts contained therein were prepared in good faith based on
reasonable assumptions and arrived at after due and careful and enquiry
and have been prepared by the Borrower on the basis of assumptions which
the Borrower believed were reasonable as of the date of such projections
in light of current and reasonably foreseeable business conditions at the
time. There are no material facts or circumstances which have not been
disclosed to the Arranger prior to the date hereof, the omission of
which, would make any factual information contained in the Information
inaccurate or misleading in any material respect or any of the opinions,
projections and forecasts contained in the Information (and the
assumptions on which such opinions, projections and forecasts where made)
misleading in any material respect. Notwithstanding the above, no
warranty or representation is made in respect of (i) any information,
facts, statements, opinions, projections, forecasts, demographic
statistics or circumstances relating to the cable, media,
telecommunications and data services industry as a whole, (ii) any person
other than a member of the Group.
14.14 ENVIRONMENTAL MATTERS
14.14.1 Each member of the Group complies, in all respects, with all
requirements of Environmental Laws where failure to do so has or
is reasonable likely to have a Material Adverse Effect.
14.14.2 No Environmental Claim is, to the knowledge of any member of the
Group, pending, threatened, or existing as at the date of this
Agreement, which has or is reasonably likely to have a Material
Adverse Effect.
14.15 NO DEFAULT
No Event of Default or Potential Event of Default has occurred and is
continuing.
14.16 PRINCIPAL AGREEMENTS
14.16.1 Each Principal Agreement to which any member of the Group is a
party constitutes, or will when executed constitute, the legal,
valid and binding obligation of such member, subject to the
application of any relevant insolvency, bankruptcy or similar
laws or other laws affecting the interests of creditors
generally, enforceable against it in accordance with its terms.
14.16.2 No member of the Borrower Group is in breach of any of its
material obligations under any Principal Agreement to which such
member is a party, nor (to the best of its knowledge and
belief), is any other party thereto, in each case in such a
manner or to such an extent as would or is reasonably likely to
have a Material Adverse Effect. To the best of its knowledge and
belief there is no material dispute between any member of the
Group and any other party to a
35
Principal Agreement and there have been no amendments to any
Principal Agreement in the form provided to the Facility Agent
prior to the date of this Agreement which, in each case, would
or is reasonably likely to have a Material Adverse Effect.
14.16.3 Other than the Principal Agreements, there is no agreement or
contract to which any member of the Group is a party the
revocation, withdrawal, suspension, cancellation, absence,
termination, expiry or ceasing to be in full force and effect of
which alone would or is reasonably likely to have a Material
Adverse Effect.
14.17 TELECOMMUNICATIONS AND CABLE LAWS
To the best of its knowledge and belief, each member of the Group is in
compliance in all material respects with all Telecommunications and Cable
Laws applicable to it but excluding, for these purposes only, breaches of
Telecommunications and Cable Laws which have been expressly waived by the
relevant regulatory authority.
14.18 NO MATERIAL ADVERSE EFFECT
There has been no event or circumstance since the date to which the
Original Financial Statements were prepared which has had or is
reasonably likely to have a Material Adverse Effect.
14.19 REPETITION
The representations and warranties in Clauses 14.1 (STATUS) to and
including 14.7 (FINANCIAL STATEMENTS CORRECT AND COMPLETE) (other than
Clause 14.7.3), 14.10 (TITLE TO ASSETS) and 14.14 (ENVIRONMENTAL MATTERS)
(so that (a) the representation and warranty in Clause 14.7.1 shall for
this purpose refer to the then latest audited consolidated financial
statements of the Borrower delivered to the Facility Agent under Clause
15.1 (FINANCIAL STATEMENTS) and (b) the representation and warranty in
Clause 14.7.2 shall for this purpose refer to the then latest Quarterly
Management Accounts delivered to the Facility Agent under Clause 15.2
(QUARTERLY MANAGEMENT ACCOUNTS)) shall be deemed to be repeated by each
Obligor on and as of each Drawdown Date (other than in relation to a
Rollover Advance) as if made with reference to the facts and
circumstances existing on each such date.
15. FINANCIAL INFORMATION
15.1 FINANCIAL STATEMENTS
The Borrower shall prepare annual audited consolidated statements in
accordance with GAAP and cause such financial statements to be reported
on by its Auditors and deliver to the Facility Agent sufficient copies of
the same for distribution to all of the Banks as soon as practicable but,
in any event, not later than 180 days after the end of the financial year
to which they relate. Each set of financial information or financial
statements of the Group delivered pursuant to this Clause 15.1 shall be
accompanied by a calculation in reasonable detail of Annualised Quarterly
Revenue in relation to the relevant Quarter Day.
36
15.2 QUARTERLY MANAGEMENT ACCOUNTS
The Borrower shall in respect of each Quarter Period ending after the
date hereof prepare unaudited consolidated Quarterly Management Accounts
for the Group and deliver a copy of the same to the Facility Agent for
distribution to the Banks as soon as practicable thereafter but, in any
event, not later than 60 days after the end of the Quarter Period to
which they relate. Each set of financial information or financial
statements of the Group delivered pursuant to this Clause 15.2 shall be
accompanied by a calculation in reasonable detail of Annualised Quarterly
Revenue in relation to the relevant Quarter Day.
15.3 MONTHLY STATISTICS
The Borrower shall in respect of each calendar month commencing with
September 2001 prepare consolidated Monthly Statistics for the Group and
deliver a copy of the same to the Facility Agent for distribution to all
the Banks as soon as practicable but not later than 30 days after the
month to which they relate.
15.4 DELIVERY OF REPORTS
The Borrower shall deliver to the Facility Agent, for distribution to the
Banks:
15.4.1 whenever it delivers its audited financial statements or
Quarterly Management Accounts, a Compliance Certificate from an
Authorised Signatory of the Borrower in respect of the financial
year to which such financial statements relate or in respect of
the Quarter Period to which such Quarterly Management Accounts
relate;
15.4.2 an Auditor's Certificate in respect of annual financial
statements at the time of issue thereof; and
15.4.3 the 2002 Budget no later than 31 December 2001.
15.5 CHANGE IN BASIS OF ACCOUNTS
The Borrower shall ensure that all financial statements delivered under
Clause 15.1 and 15.2 are prepared in accordance with GAAP and in
accordance with the accounting principles and practices used in the
preparation of the financial statements referred to in Clause 14.7.1 and
the 2001 Budget (the "ORIGINAL BASIS") consistently applied in respect of
each financial year unless to do so would be inconsistent with then
current GAAP (the "NEW BASIS"). If the preparation of financial
statements on the Original Basis is contrary to the New Basis then the
Borrower shall promptly notify the Facility Agent in writing of the
relevant change and (at the option of the Borrower) shall either (1)
prepare and deliver to the Facility Agent audited financial statements on
both the Original Basis and the New Basis (or shall prepare and deliver
financial statements on the New Basis only but shall also prepare and
deliver an audited reconciliation statement (a "RECONCILIATION
STATEMENT") showing those adjustments necessary in order to reconcile the
financial statements produced on the New Basis to the Original Basis) or
(2) request the Facility Agent to enter into good faith negotiations for
such amendments (if any) as are necessary to the covenant contained in
Clause 16 (FINANCIAL CONDITION) and any other provisions of this
Agreement affected by such change, in which event the Facility Agent will
enter into such negotiations for a period of not more than 28 days. If
agreement is reached between the Borrower and the Facility Agent (acting
on the instructions of an Instructing Group)
37
within such period as to the amendment of any such covenants of
provisions, then the parties hereto will enter into such documentation
and take such other steps as are required to put such amendments into
effect following which the Borrower shall then be obliged to produce
financial statements on the New Basis only. If no such agreement is
reached the Borrower shall be obliged to prepare and deliver financial
statements on both the Original Basis and the New Basis (or shall prepare
and deliver audited financial statements on the New Basis accompanied by
a Reconciliation Statement).
Where the Borrower is under an obligation to deliver financial statements
under Clause 15.1 on both the Original Basis and the New Basis (or on the
New Basis but accompanied by a Reconciliation Statement), Quarterly
Management Accounts shall also be delivered on both bases or on the New
Basis but accompanied by a Reconciliation Statement.
All financial statements, Quarterly Management Accounts and
Reconciliation Statements delivered pursuant to this Clause 15 shall be
delivered within the relevant time period set out in Clauses 15.1 and
15.2.
The provisions of this Clause 15 shall also apply, MUTATIS MUTANDIS, to
the preparation and delivery of the 2002 Budget under Clause 15.4.3 and
any revised financial projections.
15.6 OTHER FINANCIAL INFORMATION
The Borrower shall provide the Facility Agent with such other financial
information concerning the Group and its affairs as the Facility Agent
acting on instructions of any Bank may from time to time reasonably
request.
15.7 FINANCIAL YEAR END
The Borrower shall maintain a financial year end of 31 December for each
member of the Group save with the prior written consent of the Facility
Agent acting on the instructions of an Instructing Group.
15.8 AUTHORISED SIGNATORY
The Borrower shall ensure that any new or replacement Authorised
Signatory has provided the Facility Agent with evidence reasonably
satisfactory to it of such new officer(s)' authority and a specimen of
his or their signature(s) prior to signing any Compliance Certificates,
Notices of Drawdown, or any other notices, requests or confirmations
referred to in this Agreement or relating to the Facility.
15.9 AUDITORS
The Borrower shall ensure that the Auditors are appointed as auditors of
the Borrower and each of its Subsidiaries for the purpose of producing
financial statements in accordance with GAAP and not change such
appointment without appointing a major accounting firm of recognised
international standing and repute.
15.10 INSPECTION
The Borrower shall, if required by the Facility Agent (acting on the
instructions of an Instructing Group), at any time whilst a Potential
Event of Default or an Event of Default is continuing, permit, to the
extent it is able to do so, representatives of the Facility Agent upon
reasonable prior written notice to the Borrower or other relevant member
of
38
the Group, after having made arrangements with the Borrower so to do and
after entering into a Confidentiality Undertaking if reasonably required
by the Borrower (a) visit and inspect the properties of any member of the
Group during normal business hours, (b) inspect and make extracts from
and copies of its books and records other than records which the relevant
member of the Group is prohibited by law from disclosing to the Facility
Agent and/or any relevant Bank and (c) discuss with its principal
officers, Auditors and other accountants employed by the relevant member
of the Group for producing financial statements in accordance with
accounting principles generally accepted in Germany its business, assets,
liabilities, financial position, results of operations and business
prospects provided that any such discussion with the Auditors or other
accountants shall only be on the basis of the audited accounts of the
Group.
15.11 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Borrower shall ensure that each set of financial statements delivered
by it pursuant to this Clause 15 is certified by an Authorised Signatory
of the Borrower as giving a true and fair view of its financial condition
as at the end of the period to which those financial statements relate
and of the results of its operations during such period.
16. FINANCIAL CONDITION
The Borrower undertakes with each of the Finance Parties that, from the
date of this Agreement and so long as any moneys are owing under this
Agreement or any of the Commitments remain outstanding, it will ensure
that on each Quarter Day:
16.1.1 the ratio of:
(a) Consolidated Net Borrowings on such Quarter Date to
(b) two times Consolidated EBITDA for the Quarter Period
ending on such Quarter Day and for the immediately
preceding Quarter Period
shall not exceed 4.5:1;
16.1.2 Annualised Quarterly Revenue (calculated by reference to such
Quarter Day) shall not be less than EUR 47,500,000; and
16.1.3 Consolidated Net Borrowings on such Quarter Day divided by the
number of subscribers to the Group's services as at such Quarter
Day (determined, in the case of the number of subscribers, by
reference to the Monthly Statistics delivered to the Facility
Agent in respect of the month ending on the relevant Quarter
Day) shall not be greater than EUR 200.
17. COVENANTS
17.1 MAINTENANCE OF LEGAL VALIDITY
Each Obligor shall obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws of its
jurisdiction of incorporation to enable it lawfully to enter into and
perform its obligations under the Finance Documents and to ensure the
legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of the Finance Documents.
39
17.2 INSURANCE
The Borrower shall ensure that each member of the Group shall maintain
insurance cover of a type and level which a prudent person in the same
business would effect.
17.3 ENVIRONMENTAL CLAIMS
The Borrower shall inform the Facility Agent (and, if the Borrower is not
already aware of such matter, each other Obligor shall inform the
Borrower) in writing as soon as reasonably practicable upon becoming
aware of the same if any Environmental Claim has been commenced or (to
the best of such Obligor's knowledge and belief) is threatened against
any member of the Group in any case where such claim would be reasonably
likely, if determined against such member of the Group, to have a
Material Adverse Effect.
17.4 NOTIFICATION OF EVENTS OF DEFAULT
Each Obligor shall procure that the Facility Agent is promptly informed
of any Event of Default or Potential Event of Default forthwith upon
becoming aware thereof and shall notify the Facility Agent if it becomes
aware that any representation or warranty is or was untrue or false when
made or deemed to be made or becomes untrue or false between delivery of
a Notice of Drawdown and the Drawdown Date specified therein.
17.5 CLAIMS PARI PASSU
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least PARI PASSU
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
17.6 NEGATIVE PLEDGE
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS), no Obligor shall and the Borrower shall procure
that no other member of the Group shall permit any Encumbrance (other
than the Permitted Encumbrances) to subsist, arise or be created or
extended over all or any part of their respective present or future
undertakings, assets, rights or revenues.
17.7 DISPOSALS
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS), no Obligor shall and the Borrower will procure
that no other member of the Group shall sell, transfer, lend or otherwise
dispose of or cease to exercise direct control over any part of its
present or future undertaking, assets, rights or revenues whether by one
or a series of transactions related or not (other than Permitted
Disposals, a Permitted Chemnitz Disposal and disposals made as part of a
solvent reorganisation of the Group subject to Clause 17.25 (MAINTENANCE
OF OBLIGATIONS)).
17.8 COMPLIANCE WITH LAWS AND REGULATIONS
Each Obligor shall and the Borrower shall ensure that each other member
of the Group shall comply with the terms and conditions of all laws
(including Telecommunications and Cable Laws and Necessary
Authorisations), regulations, agreements, its Authorisations and
concessions including, without limitation, all Environmental Laws and all
Environmental Licences unless, but without prejudice to Clause 17.16
(REGISTRATIONS AND NECESSARY AUTHORISATIONS) the failure to comply
therewith would not,
40
or would not reasonably be likely, in the opinion of the Facility Agent
acting reasonably, to have a Material Adverse Effect.
17.9 ENVIRONMENTAL COMPLIANCE
Each Obligor shall and the Borrower shall ensure that each other member
of the Group shall comply in all material respects with all Environmental
Law and obtain and maintain any Environmental Licences.
17.10 TAXES
Each Obligor shall, and the Borrower shall procure that each other member
of the Group shall, file or cause to be filed all tax returns required to
be filed in all jurisdictions in which it is situated or carried on
business or is otherwise subject to taxation and will pay all taxes shown
to be due and payable on such returns or any assessments made against it
within the period stipulated for such payment (other than those being
contested in good faith).
17.11 SUBORDINATION AND ASSIGNMENT OF AMOUNTS OWED TO RELEVANT PERSONS
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS) the Borrower shall procure that:
17.11.1 in respect of any agreements under which any member of the Group
may be liable to pay any amounts to Relevant Persons (including,
without limitation, the repayment of Borrowed Money and the
payment of interest thereon) entered into on or before the first
Drawdown Date (where such amounts are actually payable on or
after the first Drawdown Date), prior to the first Drawdown
Date; and
17.11.2 in respect of any agreements under which any member of the Group
may be liable to pay any amounts to Relevant Persons entered
into after the first Drawdown Date, prior to the entry into such
agreements and the incurrence of any such liability to a
Relevant Person by any member of the Group,
such Relevant Person shall enter into documents on terms agreed
with the Facility Agent to subordinate to the claims of the
Finance Parties hereunder and assign to the Finance Parties the
claims of such Relevant Person (including, without limitation,
the repayment of Borrowed Money) in respect of such Borrowed
Money or other amounts such that the same constitute valid and
legally binding obligations of such Relevant Person enforceable
in accordance with their terms subject to substantially similar
qualifications as to matters of law to those made in the legal
opinions referred to in Schedule 3.
17.12 LOANS AND GUARANTEES
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS), no Obligor shall, and the Borrower will procure
that no other member of the Group shall, make any loans, grant any credit
or give any guarantee or indemnity to or for the benefit of any person or
otherwise voluntarily assume any liability in respect of any obligation
of another person, or enter into any transaction having the effect of
lending money with any person other than (i) to or for the benefit of
another member of the Group but subject to Clause 17.25 (MAINTENANCE OF
OBLIGATIONS), (ii) normal trade credit or guarantees
41
entered into or granted in the ordinary course of business, (iii) as
permitted under Clause 17.13 (BORROWED MONEY) and (iv) loans to employees
of the Borrower up to an aggregate amount of not more than EUR 100,000
(or equivalent) outstanding at any time.
17.13 BORROWED MONEY
No Obligor shall and the Borrower shall procure that no other member of
the Group shall create, incur or otherwise permit to be outstanding any
Borrowed Money (other than Permitted Borrowings).
17.14 LEGAL PROCEEDINGS
Each Obligor shall provide the Facility Agent with any notice of any
legal proceedings which are reasonably likely to have a Material Adverse
Effect.
17.15 REDEMPTION AND ISSUE OF SHARES
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS), no Obligor shall and the Borrower shall procure
that no other member of the Group shall (other than in respect of members
of the Group other than the Borrower in order to permit a solvent
reorganisation of the Group but subject to Clause 17.25 (MAINTENANCE OF
OBLIGATIONS)) reduce its capital or purchase or redeem any class of its
shares or any other ownership in it and no Obligor shall, and the
Borrower will procure that no other member of the Group shall, issue any
shares of any class save that any member of the Group may issue shares to
or otherwise acquire additional rights from any other member of the Group
so long as such shares are charged or pledged in favour of the Finance
Parties pursuant to the terms of a Security Document. or another document
constituting first ranking, fully perfected security in favour of the
Finance Parties and subject to Clause 17.25 (MAINTENANCE OF OBLIGATIONS).
17.16 REGISTRATIONS AND NECESSARY AUTHORISATIONS
Each Obligor shall:
17.16.1 obtain or cause to be obtained, every Necessary Authorisation
and (subject to the proviso below) each other Authorisation;
17.16.2 ensure that no Necessary Authorisation and (subject to the
proviso below) no other Authorisation is revoked, cancelled,
suspended, withdrawn, terminated, expires and is not renewed or
otherwise ceases to be in full force and effect without a new
one having first been put in place with a member of the Group on
substantially identical terms, on terms more beneficial to the
Group or on terms then required by the relevant governmental or
public body or authority or court in Germany; and
17.16.3 ensure that no Necessary Authorisation and (subject to the
proviso below) no other Authorisation is modified in any respect
(other than modifications of the same so that following such
modification the same is on terms more beneficial to the Group
or required by the relevant governmental or public body or
authority or court in Germany) and that no member of the Group
commits any default in the observance of the conditions or
restrictions (if any) imposed in, or in connection with, any of
the same
42
provided that at any time it shall not be a breach of this Clause 17.16
if the Authorisation(s) (other than any Necessary Athorisation) in
respect of which any member or members of the Group at such time shall
have failed to comply with this Clause 17.16 relate, at such time, to the
provision of services in relation to the Business to an aggregate of less
than 10% of the total number of potential end customers and housing units
(WOHNEINHEITEN) to which members of the Group may provide such services
at such time.
17.17 INVESTMENTS
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS) and other than Permitted Acquisitions, no Obligor
shall and the Borrower shall procure that no other member of the Group
shall:
17.17.1 make any loan or advance to, or enter into any transaction
having the effect of lending money with, any person (other than
a member of the Group but subject to Clause 17.25 (MAINTENANCE
OF OBLIGATIONS)); or
17.17.2 acquire for consideration any document evidencing Indebtedness
for Borrowed Money, capital stock or other securities of any
person; or
17.17.3 acquire all or any substantial part of the assets, property or
business of any other person or any assets that constitute a
division or operating unit of the business of any other person;
or
17.17.4 create or acquire any Subsidiary or Affiliate or any shares or
equivalent ownership interests in any person or otherwise enter
into any joint venture arrangement or partnership or similar
undertaking with any person
provided that (in the case of Clauses 17.17.1 and 17.17.2) members of the
Group may undertake such transactions referred to in sub-clauses (i)-(iv)
of Clause 17.12 (LOANS AND GUARANTEES).
17.18 CAPITAL EXPENDITURE
No Obligor shall and the Borrower shall procure that no other member of
the Group shall incur any Capital Expenditure more than 10 per cent.
higher in any financial year than the expenditures forecast in respect of
that financial year in the Management Base Case.
17.19 SWAPS AND HEDGING
No Obligor shall and the Borrower shall procure that no other member of
the Group shall enter into any interest rate or currency swaps or other
hedging arrangements other than non-speculative arrangements directly
relating to the risk management of any Borrowed Money permitted to
subsist by the terms of this Agreement and entered into in the ordinary
course of the business for the genuine hedging of the relevant underlying
transaction.
17.20 RESTRICTED PAYMENTS
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS), no Obligor shall and the Borrower shall procure
that no other member of the Group shall make any Restricted Payments.
43
17.21 CONSTITUTIVE DOCUMENTS
Each Obligor shall procure and the Borrower shall procure in relation to
each other member of the Group that its constitutive documents are not
amended in any way which would or is reasonably likely to adversely
affect (in terms of value, enforceability or otherwise) any Encumbrance
created in favour of the Finance Parties pursuant to the Security
Documents.
17.22 MERGER
Subject to the provisions of Clause 17.24 (LIMITATION ON CERTAIN
RESTRICTIVE COVENANTS), no Obligor shall merge or consolidate with any
other company or person and the Borrower shall procure that no other
member of the Group merges or consolidates with any other company or
person save for mergers between any members of the Group with any or all
of the other members of the Group ("ORIGINAL ENTITIES") into one or more
entities (each a "MERGED ENTITY") PROVIDED THAT:
17.22.1 reasonable details of the proposed merger in order to
demonstrate satisfaction with paragraphs 17.22.2 to 17.22.4
below are provided to the Facility Agent at least 10 days before
the merger is to be entered into;
17.22.2 such Merged Entity is a member of the Group and is liable for
the obligations of the relevant Original Entities (including the
obligations under this Agreement and the Security Documents)
which remain unaffected thereby and entitled to the benefit of
all the rights of such Original Entities and, where one or more
of the Original Entities are Guarantors, the maximum amount
payable by the Merged Entity as a Guarantor hereunder (taking
into account Clause 20.11 (LIMITATIONS FOR GERMAN OBLIGORS)) is
not less than the aggregate of the maximum amount payable as
Guarantors hereunder by the Original Entities;
17.22.3 such Merged Entity has as soon as reasonably practicable after
the relevant merger being consummated entered into security
documents over all of its material assets (to the extent
practicable) in a similar form and substance to the Security
Documents; and
17.22.4 all the property and other assets of the relevant Original
Entities are vested in the Merged Entity and that the Merged
Entity has assumed all the rights and obligations of the
relevant Original Entity as permitted under applicable law.
17.23 PRINCIPAL AGREEMENTS
The Borrower shall ensure that:
17.23.1 no Principal Agreement is amended (other than to correct a
manifest error), supplemented, novated, terminated, suspended,
revoked, cancelled or otherwise ceases to be in full force and
effect other than upon the expiry of the term of such agreement
in accordance with the terms and conditions of such agreement in
effect as at the date of this Agreement;
17.23.2 "GESTATTUNGSVERTRAGE" agreements to which any member of the
Group is a party pursuant to which (singly or in total) 10% or
more of the total number of end customers and housing units
(WOHNEINHEITEN) which are serviced or reached by the Group at
any time are serviced or reached, are not amended or
supplemented
44
to the detriment of a member of the Group, leading to a loss of
10% or more of the total number of end customers and houing
units (WOHNEINHEITEN) which are reached or serviced by the
Group, novated, terminated, suspended, revoked, cancelled or
otherwise cease to be in full force and effect; and
17.23.3 no member of the Group breaches any term of or repudiates any of
its obligations under any of the Principal Agreements or under
"GESTATTUNGSVERTRAGE" agreements to which any member of the
Group is a party pursuant to which (singly or in total) 10% or
more of the total number of end customers and housing units
(WOHNEINHEITEN) which are serviced or reached by the Group at
any time are serviced or reached, leading to a loss of 10% or
more of the total number of end customers and housing units
(WOHNEINHEITEN) which are reached or serviced by the Group.
PROVIDED THAT
17.23.4 the Borrower may permit up to (but no more than) three of the
agreements listed under the heading "Part I -
Gestattungsvertrage" of Schedule 6 (PRINCIPAL AGREEMENTS) to be
terminated, suspended, revoked, cancelled or to otherwise cease
to be in full force and effect; and
17.23.5 the Borrower may permit an agreement listed under the heading
"Part II - Signal Delivery and Connection Agreements" of
Schedule 6 (PRINCIPAL AGREEMENTS) to be terminated, suspended,
revoked, cancelled or to otherwise cease to be in full force and
effect if the Borrower provides evidence reasonably satisfactory
to the Facility Agent acting reasonably, (by no later than the
date of such termination, suspension, revocation or cancellation
or otherwise) that such agreement has been replaced by one or
more agreements with other reputable suppliers to provide (in
the opinion of the Facility Agent, acting reasonably) similar
services to a similar extent and under similar conditions or
that (in the opinion of the Facility Agent, acting reasonably)
uninterrupted signal delivery services are and shall be provided
to the Group to a similar extent and under similar conditions by
other means.
17.24 LIMITATION ON CERTAIN RESTRICTIVE COVENANTS
Notwithstanding the provisions of Clauses 17.6 (NEGATIVE PLEDGE), 17.7
(DISPOSALS), 17.11 (SUBORDINATION AND ASSIGNMENT OF AMOUNTS OWED TO
RELEVANT PERSONS), 17.12 (LOANS AND GUARANTEES) 17.15 (ISSUE OF SHARES),
17.17(INVESTMENTS), 17.20 (RESTRICTED PAYMENTS) and 17.22 (MERGER) the
provisions of those Clauses shall not restrict the ability of any
Subsidiary (as such term is defined in the UPC Indentures) to take such
action as is contemplated in Section 10.13(1)(i), (ii) & (iii) of the UPC
Indentures which may but for this provision be restricted by virtue of
those clauses unless: (a) a payment default under Clause 19.1
(NON-PAYMENT) or (b) a breach of the provisions of Clause 16 (FINANCIAL
CONDITION) has occurred.
17.25 MAINTENANCE OF OBLIGATIONS
Notwithstanding the provisions of any other provision hereof, no member
of the Group shall take any action which would, as at the time such
action is taken, diminish the amount which could, but for such action,
have been claimed by any of the Finance
45
Parties under any guarantee issued by such member of the Group or any
other member of the Group assuming for this purpose that the amount which
could have been claimed, but for such action, and the amount which would
be capable of being claimed as a result of such action is calculated as
at the date at which such action is taken.
17.26 OBLIGATIONS OF GERMAN OBLIGORS
17.26.1 The provisions of Clauses 17.7 (DISPOSALS), 17.15 (ISSUE OF
SHARES), 17.21 (CONSTITUTIVE DOCUMENTS), and 17.22 (MERGERS),
(the "Relevant Restrictive Covenants") shall not apply to any
Obligor whose Relevant Jurisdiction is Germany (each the "German
Obligor") or any of its Subsidiaries from time to time whose
Relevant Jurisdiction is Germany (together with each German
Obligor, the "German Group").
17.26.2 Each German Obligor shall give the Facility Agent no less than
ten Business Days' prior written notice of the intention of it
or of its Subsidiaries whose Relevant Jurisdiction is Germany to
carry out any of the acts or take any of the steps referred to
in the Relevant Restrictive Covenants.
17.26.3 The Facility Agent shall be entitled within ten Business Days of
receipt of the relevant German Obligor's notice under Clause
17.26.2 to request the relevant German Obligor to supply to the
Facility Agent in sufficient copies for the Banks any relevant
information in connection with the proposed action or steps
referred to in such notice.
17.26.4 The Facility Agent shall notify the relevant German Obligor,
within ten Business Days of receipt of the relevant German
Obligor's notice under Clause 17.26.2 or if additional
information has been requested by the Facility Agent within the
prescribed time, within ten Business Days of receipt of such
information, whether the proposed action or steps under Clause
17.26.3 is or is, in the reasonable opinion of the Facility
Agent, acting on the instructions of an Instructing Group,
likely to have a Material Adverse Effect.
17.26.5 If the proposed action or steps under Clause 17.26.3 is so
considered by the Facility Agent to have a Material Adverse
Effect and the relevant member of the German Group nevertheless
takes such action or steps under Clause 17.26.3, the Facility
Agent shall be entitled to make (and, if so instructed by an
Instructing Group, shall make) the declaration, request and/or
instruction set out in sub-clause 19.16 (ACCELERATION AND
CANCELLATION) and call for repayment of the Advances and
exercise the other rights in accordance with sub-clause 19.17
(DEMAND BASIS).
17.26.6 For the purposes of this Clause "RELEVANT JURISDICTION" means,
in respect of any person, the jurisdiction of the country in
which such person is incorporated and, if different, where it is
resident or has its principal place of business, and each
jurisdiction or state in which it owns or leases property or
otherwise conducts its business.
46
17.27 MORTGAGES
17.27.1 The Borrower shall use, and shall cause each relevant Security
Provider to use its best efforts, to ensure that within three
months after the first Drawdown Date all registrations of the
land charges created by the Mortgages shall have been registered
with the competent Land Register, completed and made such that
each Mortgage constitutes first ranking perfected security in
favour of the Finance Parties. If the mortgages have not been
registered within three months after the first Drawdown Date,
the Borrower shall within two weeks of such date provide to the
Finance Parties fully perfected first ranking security over
assets having a value not less than the value of the property
subject to the Mortgages, which security shall be on terms
satisfactory to the Finance Parties and shall be enforceable
with no more costs or effort than that involved in enforcing the
Mortgages.
17.27.2 The Borrower shall ensure that a land charge is created by a
mortgage over the property situated at Winklhoferstrasse,
Chemnitz described in the Land Register of Schonau as FLURSTUCK
535/5 (measuring about 800 square meters) and 536/9 (measuring
about 400 square meters), which the Borrower is in the process
of acquiring and the Borrower shall ensure that such charge
shall constitute a first ranking perfected security in favour of
the Finance Parties.
17.28 BdW TERMINATION
17.28.1 Each Obligor shall procure that EWT Communications GmbH shall
repay all indebtedness owing pursuant to the BdW Agreement and
take all other necessary actions and steps so as to terminate
the BdW Agreement and all rights, benefits, duties and
obligations of the parties thereunder and to terminate all
obligations, duties and liabilities of the Borrower in relation
thereto by no later than 31 December 2001.
17.28.2 The Borrower shall deliver to the Facility Agent evidence
satisfactory in form and substance to the Facility Agent of the
termination of the BdW Agreement and the repayment of all
indebtedness owing thereunder and the termination of all rights,
benefits, duties and obligations of the parties thereunder and
all obligations, duties and liabilities of the Borrower in
relation thereto by no later than 31 December 2001 (such date or
such earlier date upon which such evidence is delivered to the
Facility Agent, the "BDW TERMINATION DATE").
18. CONDITION SUBSEQUENT
18.1 CONSENTS
The Obligor shall ensure that all declarations of consent
(LOSCHUNGSBEWILLIGUNGEN) relating to the properties under the Mortgages,
shall be filed with the competent Land Register within 10 Business Days
of the date hereof.
Failure to comply with this Clause 18 within the time period specified
herein, shall result in all amounts outstanding under the Facility
(including accrued interest) becoming due and payable by the Obligor
within 10 Business Days of the expiry of such time period. Failure to
repay all amounts outstanding under the Facility (including accrued
interest)
47
on or before the expiry of such 10 Business Day period shall, for the
avoidance of doubt, constitute an Event of Default in accordance with
Clause 19.
19. EVENTS OF DEFAULT
Each of the events and circumstances set out below is an Event of Default
(whether or not caused by any reason outside the control of a member of
the Group):
19.1 NON-PAYMENT
Any Obligor fails to pay any principal sum due from it under this
Agreement in the currency, at the time and in the manner stipulated in
this Agreement, or any other sum due from it under the Finance Documents
within three Business Days of the due date in the currency and in the
manner stipulated in this Agreement or such other Finance Document.
19.2 BREACH OF FINANCIAL COVENANTS
The Borrower fails to comply with its obligations pursuant to Clause 16.
19.3 BREACH OF OTHER OBLIGATIONS
The Shareholder, any Security Provider or any Obligor commits any breach
of or omits to observe any of the obligations or undertakings expressed
to be assumed by it under the Finance Documents (other than the
obligations referred to in Clauses 19.1 and 19.2) and, in respect of any
such breach or omission which is capable of remedy, such action as the
Facility Agent may reasonably require shall not have been taken within 21
days of the Facility Agent notifying the Shareholder, Security Provider
or Obligor (as the case may be) of such default and of such required
action.
19.4 MISREPRESENTATION
Any representation or warranty made or deemed to be made or repeated by
or in respect of the Shareholder, a Security Provider or an Obligor in or
pursuant to the Finance Documents or in any notice, certificate of
statement referred to in or delivered under the Finance Documents is or
proves to have been incorrect or misleading in any material respect when
made and, in the event that the act or circumstance which led to such
representation or warranty being incorrect or misleading is capable or
remedy, such action as the Facility Agent may require shall not have been
taken within 21 days of the Facility Agent notifying the person who made
or was deemed to have made or repeated such representation or warranty of
such act or circumstance and such required action.
19.5 VALIDITY OF SECURITY
Save for registration of the land charges created by the Mortgages and,
prior to the making of the first Advance, for any Encumbrance over the
shares in EWT Communications GmbH, any Security Document is not or ceases
to be effective and to create first ranking perfected security in favour
of the Finance Parties or any Security Provider shall repudiate, or
proceedings shall successfully challenge the prior status of the
Encumbrances created by the Security Documents or the validity or
enforceability of the Security Documents.
48
19.6 CROSS-DEFAULT
19.6.1 Any Borrowed Money of UPC is not paid when due (or within any
applicable grace period expressly contained in the agreement
relating to such Borrowed Money in its original terms); or
19.6.2 any Borrowed Money of UPC becomes (whether by declaration or
automatically in accordance with the relevant agreement or
instrument constituting the same) due and payable prior to the
date when it would otherwise have become due;
provided that, in the case of Clauses 19.6.1 and 19.6.2, the principal
amount, or aggregate principal amount at any one time, of all Borrowed
Money in relation to any of the foregoing events set out above shall have
occurred and be continuing is equal to or greater than EUR 50,000,000 (or
such other lower threshold amount as may from time to time be specified
in relation to UPC in the Eur 3,500,000,000, US$ 347,500,000 and Eur
95,000,000 facility agreement dated 26 October 2000 entered into among,
INTER ALIA, UPC Distribution Holding B.V. and Chase Manhattan plc) or its
equivalent in the currency in which the same is denominated and payable.
19.6.3 Any Borrowed Money of any member of the Group is not paid when
due (or within any applicable grace period expressly contained
in the agreement relating to such Borrowed Money in its original
terms); or
19.6.4 any Borrowed Money of any member of the Group becomes (whether
by declaration or automatically in accordance with the relevant
agreement or instrument constituting the same) due and payable
prior to the date when it would otherwise have become due; or
19.6.5 any creditor of any member of the Group becomes entitled to
declare any Borrowed Money of any member of the Group due and
payable prior to its specified maturity as a result of an event
of default (however described) unless such creditor is not
taking any action (such action to include the entering into any
discussions with any member of the Group or any of UPC, its
Subsidiaries and Affiliates) of whatsoever nature in relation to
or as a result of the same,
provided that the principal amount, or aggregate principal amount at any
one time, of all Borrowed Money in relation to any of the foregoing
events set out in Clauses 19.6.3, 18.6.4 or 18.6.5 above shall have
occurred and be continuing is equal to or greater than EUR 2,000,000 or
(in either case) its equivalent in the currency in which the same is
denominated and payable.
19.7 LEGAL PROCESS
19.7.1 Any judgement or order for an amount of EUR 1,000,000 (or its
equivalent) or more is made against any member of the Group
unless the same is stayed, complied with or being appealed
against in good faith by appropriate proceedings (provided that
such appeal is being diligently pursued and such member of the
Group is able to pay such judgement should such appeal fail)
within 45 days (meaning, in the case of any appeal, such appeal
is successful
49
and the relevant member of the Group is not required to pay such
judgement or order).
19.7.2 A creditor attaches or takes possession of, or a distress,
execution, sequestration or other process is levied or enforced
upon or sued out against, any material part of the undertakings,
assets, rights or revenues of any member of the Group or
Security Provider and the same is not discharged within 45 days
save where the relevant member of the Group or Security Provider
is, in good faith, contesting the relevant process by
appropriate proceedings diligently pursued and an Instructing
Group (acting reasonably) is satisfied that the ability of the
Group to comply with its payment and other material obligations
under the Finance Documents will not be materially and adversely
affected whilst such process is being so contested or as a
result of such proceedings.
19.8 INSOLVENCY
19.8.1 A member of the Group or Security Provider is over-indebted
(UBERSCHULDET) or unable or admits inability to pay its current
debts which have fallen due or its debts which fall due in the
future (which includes ZAHLUNGSUNFAHIGKEIT and DROHENDE
ZAHLUNGSUNFAHIGKEIT) or, by reason of actual or anticipated
financial difficulties, either suspends making payments on any
of its debts or commences negotiations with one or more of its
creditors with a view to rescheduling any of its Indebtedness.
19.8.2 A moratorium is declared in respect of any Indebtedness of any
member of the Group or Security Provider.
19.9 WINDING UP
Any application or filing for bankruptcy, the opening of insolvency
proceedings or a moratorium (either preliminary or definitive) is
presented and is not discharged within 45 days against any member of the
Group or any Security Provider (not being a petition which the relevant
member of the Group or Security Provider (as the case may be) can
demonstrate to the satisfaction of an Instructing Group is frivolous,
vexatious or an abuse of the process of the courts or relates to a claim
to which the relevant member of the Group or Security Provider (as the
case may be) has a good defence and which is being vigorously contested
by the relevant member to the Group or Security Provider (as the case may
be)) or an order is made or resolution passed for the winding up of any
member of the Group or Security Provider other than in any such case in
relation to, or for the purpose of, a solvent reorganisation or merger
(i) permitted under Clause 17.22 (MERGER) or (ii) on terms previously
approved by the Facility Agent (acting on the instructions of an
Instructing Group).
19.10 COMPOSITIONS
Any steps are taken, or negotiations commenced, by any member of the
Group or Security Provider or by any of their respective creditors with a
view to proposing any kind of composition, compromise or arrangement
involving such company and any of its creditors.
50
19.11 THE GROUP'S BUSINESS
Any member of the Group ceases to carry on the Business or enters into
any business unrelated to the Business without first having obtained the
consent in writing of the Instructing Group which consent shall not be
unreasonably withheld.
19.12 SEIZURE
All or a material part of the undertakings, assets, rights or revenues
of, or shares or other ownership interests in the Group (taken as a
whole) are seized, nationalised, expropriated or compulsory acquired by
or under the authority of any government.
19.13 ANALOGOUS PROCEEDINGS
There occurs in relation to any member of the Group in any country or
territory in which it carries on business or to the jurisdiction of whose
courts any part of its assets is subject, any event which corresponds
with, or has an effect equivalent or similar to any of those mentioned in
Clauses 19.7 to 19.10 and 19.12.
19.14 ILLEGALITY
It becomes unlawful at any time for any Obligor or Security Provider to
perform any of their respective material obligations under the Finance
Documents or any of the material obligations of an Obligor or Security
Provider under the Finance Documents becomes unenforceable in any way or
the Encumbrances intended to be created by the Security Documents are not
or cease to be in existence in accordance with the terms of the Security
Documents.
19.15 MATERIAL ADVERSE EFFECT
Any other event occurs or circumstances arise which in the reasonable
opinion of an Instructing Group has had or would or is reasonably likely
to have a Material Adverse Effect.
19.16 ACCELERATION AND CANCELLATION
The Facility Agent may and, if so requested by an Instructing Group,
shall, without prejudice to any other rights of the Banks, at any time
after the happening of an Event of Default so long as the same is
continuing unremedied or unwaived by notice to the Borrower declare that:
19.16.1 the obligation of each Bank to make its Commitment available
shall be terminated, whereupon the Commitments shall be reduced
to zero forthwith; and/or
19.16.2 the Loan and all interest and commitment commission accrued and
all other sums payable under this Agreement have become
immediately due and payable or have become due and payable on
demand, whereupon the same shall, immediately or in accordance
with the terms of such notice, become so due and payable; and/or
19.16.3 the Security Documents (or any of them) have become enforceable
whereupon the same shall be enforceable.
On or at any time after making of any such declaration, the Facility
Agent shall be entitled, to the exclusion of the Borrower, to select the
duration of each period for the
51
calculation of interest in relation to any outstanding Advances or other
sums payable under this Agreement.
19.17 DEMAND BASIS
If, pursuant to Clause 19.16 (ACCELERATION AND CANCELLATION) the Facility
Agent declares the Loan to be due and payable on demand then the Facility
Agent may (and, if so instructed by an Instructing Group, shall) at any
time by written notice to the Borrower (a) call for repayment of the
Advances on such date as may be specified in such notice whereupon the
Advances shall become due and payable on the date so specified together
with all interest and commitment commission accrued and all other sums
payable under this Agreement or (b) withdraw such declaration with effect
from the date specified in such notice.
19.18 LENGTH OF TERMS
If, pursuant to Clause 19.16 (ACCELERATION AND CANCELLATION), the
Facility Agent declares the Advances to be due and payable on demand of
the Facility Agent, the Term in respect of any such Advance shall, if the
Facility Agent subsequently demands payment before the scheduled
Repayment Date in respect of such Advance, be deemed (except for the
purposes of Clause 23.4 (BREAK COSTS) to be of such length that it ends
on the date that such demand is made.
20. GUARANTEE AND INDEMNITY
20.1 GUARANTEE AND INDEMNITY
Each Guarantor irrevocably and unconditionally jointly and severally:
20.1.1 guarantees to each Finance Party punctual performance by the
Borrower of all the Borrower's obligations under the Finance
Documents;
20.1.2 undertakes with each Finance Party that whenever the Borrower
does not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor provided that the
Facility Agent has first made a demand for payment of such
amount from the Borrower; and
20.1.3 indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise
have been entitled to recover.
20.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
20.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
52
20.3.1 the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
20.3.2 each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
20.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 20 will not be
affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this
Clause 20 (without limitation and whether or not known to it or any
Finance Party) including:
20.4.1 any time, waiver or consent granted to, or composition with, any
Obligor or other person;
20.4.2 the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Group;
20.4.3 the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or
any failure to realise the full value of any security;
20.4.4 any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of an
Obligor or any other person;
20.4.5 any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
20.4.6 any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document
or security; or
20.4.7 any insolvency or similar proceedings.
20.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 20. This waiver
applies irrespective of any law or any provision of a Finance Document to
the contrary.
20.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
20.6.1 refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it
53
sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
20.6.2 hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability
under this Clause 20.
20.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and unless the Agent otherwise directs, no Guarantor will exercise
any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
20.7.1 to be indemnified by an Obligor;
20.7.2 to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
20.7.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
20.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
20.9 UNDERTAKING IN RELATION TO GUARANTORS
The Borrower shall ensure that the Borrower and the Guarantors together:
20.9.1 contribute not less than 90 per cent. of the Consolidated EBITDA
of the Group in respect of any one year period ending on a
Quarter Day; and
20.9.2 own assets having a book value not less than 90 per cent. of the
book value of the assets of the Group as a whole (disregarding
for this purpose the value of any shareholdings or equivalent
ownership interests owned by a member of the Group in another
member of the Group),
in each case determined by reference to the annual audited consolidated
financial statements of the Borrower or, as the case may be, Quarterly
Management Accounts and Compliance Certificate most recently delivered to
the Facility Agent pursuant to Clause 15.1 (FINANCIAL STATEMENTS) or (as
the case may be) 15.2 (QUARTERLY MANAGEMENT ACCOUNTS) and 15.4 (DELIVERY
OF REPORTS).
20.10 ADDITIONAL GUARANTORS
If Clause 20.9 (UNDERTAKING IN RELATION TO GUARANTORS) is not complied
with the Borrower shall, within 10 Business Days of the Quarterly
Management Accounts and Compliance Certificates showing such
non-compliance being delivered to the Facility Agent cause one or more of
its Subsidiaries to become party to this Agreement as Additional
Guarantor such that Clause 20.9 (UNDERTAKING IN RELATION TO GUARANTORS)
shall be complied with.. A Subsidiary shall become an Additional
Guarantor if:
54
20.10.1 the Borrower delivers to the Agent a duly completed and executed
Guarantor Accession Letter; and
20.10.2 the Facility Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (CONDITIONS PRECEDENT)
in relation to that Additional Guarantor, each in form and
substance satisfactory to the Facility Agent.
The Facility Agent shall notify the Borrower and the Finance Parties
promptly upon being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in Part
II of Schedule 2 (CONDITIONS PRECEDENT).
20.11 LIMITATIONS FOR GERMAN OBLIGORS
The right to enforce any guarantee issued by a guarantor incorporated in
the Federal Republic of Germany as a GmbH or a GmbH & Co. KG (the
"RELEVANT GERMAN GUARANTOR") pursuant to this Clause 19 shall, if and to
the extent that (i) it secures liabilities of an affiliated company
(VERBUNDENES UNTERNEHMEN) within the meaning of section 15 of the German
Stock Corporation Act (AKTIENGESETZ) of the Relevant German Guarantor
(other than its direct or indirect subsidiary) and (ii) the application
of the enforcement proceeds towards the obligations secured by such
guarantee would otherwise lead to the situation that the Relevant German
Guarantor (or, in the case of a GmbH & Co. KG, the general partner of the
Relevant German Guarantor) does not have sufficient assets to maintain
its stated share capital (STAMMKAPITAL), be limited to an amount that is
equal to the assets of the Relevant German Guarantor (or, in the case of
a GmbH & Co. KG, of the general partner). The calculation of the Relevant
German Guarantor's (or, in the case of a GmbH & Co. KG, the general
partner's) assets shall take into account the captions reflected in
Section 266 (2) A, B and C of the German Commercial Code
(HANDELSGESETZBUCH) less the sum of (A) the Relevant German Guarantor's
(or, in the case of a GmbH & Co. KG, the general partner's) liabilities
(the calculation of which shall take into account the captions reflected
in Section 266 (3) B, C and D of the German Commercial Code) and (B) the
stated share capital of the Relevant German Guarantor (or, in the case of
a GmbH & Co. KG, of the general partner), (the "NET ASSETS"). For the
purpose of the calculation of the Net Assets the following balance sheet
items shall be adjusted as follows:
20.11.1 the amount of any increase of stated share capital after the
date hereof that has been effected without the prior written
consent of the Facility Agent shall be deducted from the stated
share capital; and
20.11.2 loans and other contractual liabilities incurred in violation of
the provisions of the Finance Documents shall be disregarded.
The provisions of this Clause 20.11 shall apply without prejudice to the
statutory burden of proof which, for the avoidance of doubt, is borne by
the Relevant German Guarantor.
Furthermore, if and to the extent legally permissible and commercially
justifiable in respect of the Relevant German Guarantor's business, the
Relevant German Guarantor shall, in a situation where the Relevant German
Guarantor does not have sufficient assets to maintain its stated share
capital, realise any and all of its assets that are shown in the balance
sheet with a book value (BUCHWERT) which is significantly lower than the
market
55
value of such assets and that are not necessary for the Relevant German
Guarantor's business. In the case of a Relevant German Guarantor in the
form of a GmbH & Co. KG such obligation to realisation shall also apply
to the general partner of the Relevant German Guarantor.
20.12 PARALLEL OBLIGATIONS
For the purposes of (a) taking Security in, or subject to the laws of,
Germany (and such other jurisdictions as the Agents and the Borrower
(acting reasonably) agree) (together, the "AGREED JURISDICTIONS") and (b)
ensuring the continued validity of such Security, the Security Agent and
the Obligors agree that despite anything to the contrary contained in any
Finance Document:
20.12.1 each Obligor shall pay to the Security Agent sums equal to, and
in the currency of, its Principal Obligations (as defined below)
as and when the same fall due for payment under any Finance
Document (the "PARALLEL OBLIGATIONS");
20.12.2 the rights of the Finance Parties to receive payment of the
Principal Obligations are several from the rights of the
Security Agent to receive the Parallel Obligations;
20.12.3 the Security Agent shall have its own independent right to
demand payment of the Parallel Obligations by the Obligors;
20.12.4 the irrevocable receipt (as defined below) by the Security Agent
of the payment by an Obligor of its Parallel Obligations to the
Security Agent in accordance with this Clause 20.12 shall be a
good discharge of the corresponding Principal Obligations owed
by such Obligor to the relevant Finance Party under the relevant
Finance Document and the irrevocable receipt by a Finance Party
of the payment by an Obligor of the Principal Obligations owed
by such Obligor to the relevant Finance Party under the relevant
Finance Document shall be a good discharge of the corresponding
Parallel Obligations owed to the Security Agent under this
Clause 20.12; and
20.12.5 nothing in this Agreement or any Finance Document shall in any
way limit the Security Agent's right to act in the protection or
preservation of, the rights under, or to enforce any, Security
Document as contemplated by this Agreement or the relevant
Security Document.
Despite the foregoing, any such payment shall be made to the Facility
Agent, unless the Facility Agent directs such payment to be made to the
Security Agent.
Without limiting or affecting the Security Agent's rights against the
Obligors (whether under this Clause 20.12 or under any other provision of
the Finance Documents and subject to sub-clause 20.12.5) the Security
Agent agrees with each other Finance Party (on a several basis) that it
will not exercise its rights in respect of the Parallel Obligations
except with the consent of the relevant Finance Party.
For the purposes of this Clause 20.12:
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"IRREVOCABLE RECEIPT" means that the Security Agent or the relevant
Finance Party (as the case may be) does not consider that such amount
received is capable of being avoided or reduced by virtue of any
bankruptcy, insolvency, liquidation or similar laws; and
"PRINCIPAL OBLIGATIONS" means in respect of each Agreed Jurisdiction and
in relation to an Obligor, any sums owing by it to a Finance Party (other
than the Security Agent under sub-clause 20.12.1) under any Finance
Document.
21. COMMITMENT COMMISSION AND FEES
21.1 COMMITMENT COMMISSION
The Borrower shall pay to the Facility Agent for account of each Bank a
commitment commission on the amount of the total Available Commitments
from day to day during the period beginning on the date hereof and ending
on the Final Maturity Date, such commitment commission to be calculated
at the rate equal to 50 per cent. of the Margin from time to time and
payable in arrears on the last day of each successive Quarter Period
which ends during such period and on the Final Maturity Date. For the
avoidance of doubt, the amount of the total Available Commitments for
purposes of this Clause 21.1 is to be calculated without reference to any
reduction of the Commitments pursuant to Clause 3.6.
21.2 AGENCY FEE
The Borrower shall pay to the Facility Agent for its own account and for
the account of Security Agent the agency fees specified in the agency fee
letter dated on or about the date hereof from the Facility Agent to the
Borrower at the times, and in the amounts, specified in such letter.
21.3 ARRANGEMENT FEE
The Borrower shall pay to the Arranger for its own account the fees
specified in the arrangement fee letter dated on or about the date hereof
from the Arranger to the Borrower at the times, and in the amounts,
specified in such letter.
22. COSTS AND EXPENSES
22.1 TRANSACTION EXPENSES
The Borrower will pay all the Facility Agent's reasonable out of pocket
costs and expenses, including reasonable travelling, printing and legal
fees incurred by the Facility Agent in connection with the preparation,
negotiation, execution and delivery of the documentation with respect to
the Agreement and Security Documents, including, but not limited to, the
agreed fees of its legal advisers.
22.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand of the Facility Agent,
reimburse the Finance Parties for all reasonable costs and expenses
(including legal fees) together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Finance Parties under the Finance Documents and any other document
referred to in this Agreement.
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22.3 STAMP TAXES
The Borrower shall pay all stamp, registration and other taxes to which
this Agreement, any other document referred to in the Finance Documents
or any judgment given in connection therewith is or at any time may be
subject and shall, from time to time on demand of the Facility Agent,
indemnify the Finance Parties against any liabilities, costs, claims and
expenses resulting from any failure to pay or any delay in paying any
such tax.
22.4 AMENDMENT COSTS
If the Borrower requests any amendment, waiver or consent then the
Borrower shall, within five Business Days of demand by the Facility
Agent, reimburse the Finance Parties for all reasonable costs and
expenses (including reasonable legal fees) together with any VAT thereon
incurred by such person in responding to or complying with such request.
22.5 BANKS' LIABILITIES FOR COSTS
If the Borrower fails to perform any of its obligations under this Clause
22, each Bank shall, in its Proportion, indemnify each of the Facility
Agent and the Arranger against any loss incurred by any of them as a
result of such failure.
23. DEFAULT INTEREST AND BREAK COSTS
23.1 DEFAULT INTEREST PERIODS
If any sum due and payable by the Borrower hereunder is not paid on the
due date therefor in accordance with Clause 26 (PAYMENTS) or if any sum
due and payable by the Borrower under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period
beginning on such due date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of the Borrower
to pay such sum is discharged shall be divided into successive periods,
each of which (other than the first) shall start on the last day of the
preceding such period and the duration of each of which shall (except as
otherwise provided in this Clause 23) be selected by the Facility Agent.
23.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Term in respect thereof at
the rate per annum which is two per cent. per annum above the percentage
rate which would apply if such Unpaid Sum had been an Advance in the
amount and currency of such Unpaid Sum and for the same Term, PROVIDED
THAT if such Unpaid Sum relates to an Advance which became due and
payable on a day other than the last day of the Term thereof:
23.2.1 the first such Term applicable to such Unpaid Sum shall be of a
duration equal to the unexpired portion of the current Term
relating to that Advance; and
23.2.2 the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one point
five per cent. the rate which would have been applicable to it
had it not so fallen due save that the Margin shall be, or be
deemed to be, the highest rate specified in the definition
thereof.
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23.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 23.2 (DEFAULT
INTEREST) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Borrower on the last day of its Term or on such other
dates as the Facility Agent may specify by notice to the Borrower.
23.4 BREAK COSTS
If any Bank or the Facility Agent on its behalf receives or recovers all
or any part of such Bank's share of an Advance or Unpaid Sum otherwise
than on the last day of the Term thereof, the Borrower shall pay to the
Facility Agent on demand for account of such Bank an amount equal to the
amount (if any) by which (a) the additional interest which would have
been payable on the amount so received or recovered had it been received
or recovered on the last day of the Term thereof exceeds (b) the amount
of interest which would have been payable to the Facility Agent on the
last day of the Term thereof in respect of a deposit in the currency of
the amount so received or recovered equal to the amount so received or
recovered placed by it with a prime bank in the relevant interbank market
for a period starting on the third Business Day following the date of
such receipt or recovery and ending on the last day of the Term thereof.
24. BORROWER'S INDEMNITIES
24.1 BORROWER'S INDEMNITY
The Borrower undertakes to indemnify:
24.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon which it may sustain or incur as a consequence of the
occurrence of any Event of Default;
24.1.2 the Facility Agent against any cost or loss it may suffer or
incur as a result of its entering into, or performing, any
foreign exchange contract for the purposes of Clause 26
(PAYMENTS);
24.1.3 each Bank against any cost or loss it may suffer under Clause
22.5 (BANKS' LIABILITIES FOR COSTS) or Clause 29.5
(INDEMNIFICATION);
24.1.4 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion
of an Advance requested by the Borrower but not made as a result
of the operation of this Agreement;
24.1.5 each Bank against any loss it may suffer or incur as a result of
its funding its portion of any Advance by reason of Clause 3.3
(DRAWDOWN CONDITIONS).
24.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under this Agreement or any
order, judgment given or made in relation hereto has to be converted from
the currency (the "FIRST CURRENCY") in which such Sum is payable into
another currency (the "SECOND CURRENCY") for the purpose of:
24.2.1 making or filing a claim or proof against an Obligor;
24.2.2 obtaining or enforcing an order, judgment in any court or other
tribunal;
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the Borrower shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such
Sum from the First Currency into the Second Currency and (b) the rate or
rates of exchange available to such person at the time of receipt of such
Sum.
25. CURRENCY OF ACCOUNT AND PAYMENT
The euro is the currency of account and payment for each and every sum at
any time due from the Obligors hereunder, PROVIDED THAT:
25.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
25.1.2 each payment pursuant to Clause 10.2 (TAX INDEMNITY), Clause
11.1 (INCREASED COSTS) or Clause 24.1 (BORROWER'S INDEMNITY)
shall be made in the currency specified by the party claiming
thereunder; and
25.1.3 any amount expressed to be payable in a currency other than euro
shall be paid in that other currency.
26. PAYMENTS
26.1 NOTIFICATION OF PAYMENTS
Without prejudice to the liability of each party hereto promptly to pay
each amount owing by it hereunder on the due date therefor, whenever a
payment is expected to be made by any of the parties hereto, the Facility
Agent shall, at least five Business Days prior to the expected date for
such payment, notify all the parties hereto of the amount, currency and
timing of such payment and the identity of the party liable to make such
payment.
26.2 PAYMENTS TO THE FACILITY AGENT
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank, such Obligor or, as the case may be, such Bank shall
make the same available to the Facility Agent for value on the due date
at such time and in such funds and to such account with such bank as the
Facility Agent shall specify from time to time.
26.3 PAYMENTS BY THE FACILITY AGENT
26.3.1 Save as otherwise provided herein, each payment received by the
Facility Agent pursuant to Clause 26.2 (PAYMENTS TO THE FACILITY
AGENT) shall:
(a) in the case of a payment received for the account of the
Borrower, be made available by the Facility Agent to the
Borrower by application:
(i) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due
from the Borrower hereunder to the person from whom the
amount was so received or in or towards the purchase of
any amount of any currency to be so applied; and
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(ii) secondly, in or towards payment (on the date, and in
the currency and funds, of receipt) to such account
with such bank in a financial centre in a Participating
Member State as the Borrower shall have previously
notified to the Facility Agent for this purpose; and
(b) in the case of any other payment, be made available by the
Facility Agent to the person entitled to receive the payment
in accordance with this Agreement (in the case of a Bank,
for the account of the Facility Office) for value the same
day by transfer to such account of such person with such
bank in a financial centre in a Participating Member State
as the person has previously notified to the Facility Agent.
26.3.2 A payment will be deemed to have been made by the Facility Agent
on the date on which it is required to be made under this
Agreement if the Facility Agent has, on or before that date,
taken steps to make that payment in accordance with the
regulations or operating procedures of the clearing system used
by the Facility Agent in order to make the payment.
26.4 NO SET-OFF
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
26.5 CLAWBACK
Where a sum is to be paid hereunder to the Facility Agent for account of
another person, the Facility Agent shall not be obliged to make the same
available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to
its satisfaction that it has actually received such sum, but if it does
so and it proves to be the case that it had not actually received such
sum, then the person to whom such sum or the proceeds of such exchange
contract was so made available shall on request refund the same to the
Facility Agent together with an amount sufficient to indemnify the
Facility Agent against any cost or loss it may have suffered or incurred
by reason of its having paid out such sum or the proceeds of such
exchange contract prior to its having received such sum.
26.6 PARTIAL PAYMENTS
If and whenever a payment is made by the Borrower hereunder the Facility
Agent may apply the amount received towards the obligations of the
Borrower under this Agreement in the following order:
26.6.1 FIRST, in or towards payment of any unpaid costs and expenses of
the Agents and the Arranger;
26.6.2 SECONDLY, in or towards payment PRO RATA of any accrued interest
due but unpaid;
26.6.3 THIRDLY, in or towards payment PRO RATA of any principal due but
unpaid; and
26.6.4 FOURTHLY, in or towards payment PRO RATA of any other sum due
but unpaid.
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26.7 VARIATION OF PARTIAL PAYMENTS
The order of payments set out in Clause 26.6 (PARTIAL PAYMENTS) shall
override any appropriation made by the Borrower but the order set out in
sub-Clauses 26.6.2, 26.6.3 and 26.6.4 of Clause 26.6 (PARTIAL PAYMENTS)
may be varied if agreed by all the Banks.
26.8 BUSINESS DAYS
26.8.1 Subject to any other provisions of this Agreement, any payment
which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there
is not).
26.8.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original due
date.
27. SET-OFF
27.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with such Bank in
satisfaction of any sum due and payable from such Obligor to such Bank
under the Finance Documents but unpaid. For this purpose, each Bank is
authorised to purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect such
application.
27.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause 27.1
(CONTRACTUAL SET-OFF).
28. SHARING
28.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is received
or recovered other than in accordance with Clause 26 (PAYMENTS), then
such Recovering Bank shall:
28.1.1 notify the Facility Agent of such receipt or recovery;
28.1.2 at the request of the Facility Agent, promptly pay to the
Facility Agent an amount (the "SHARING PAYMENT") equal to such
receipt or recovery less any amount which the Facility Agent
determines may be retained by such Recovering Bank as its share
of any payment to be made in accordance with Clause 26.6
(PARTIAL PAYMENTS).
28.2 REDISTRIBUTION OF PAYMENTS
The Facility Agent shall treat the Sharing Payment as if it had been paid
by the Borrower and distribute it between the Finance Parties (other than
the Recovering Bank) in accordance with Clause 26.6 (PARTIAL PAYMENTS).
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28.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 28.2
(REDISTRIBUTION OF PAYMENTS) in respect of the Sharing Payment (and the
Borrower shall be liable to the Recovering Bank in an amount equal to the
Sharing Payment).
28.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
28.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 28.2 (REDISTRIBUTION OF PAYMENTS) shall, upon
request of the Facility Agent, pay to the Facility Agent for
account of such Recovering Bank an amount equal to its share of
such Sharing Payment; and
28.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable
to the reimbursing party for the amount so reimbursed.
28.5 EXCEPTION
This Clause 28 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the Borrower.
28.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court it shall give
prior notice to the Facility Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and, as
a result thereof or in connection therewith, receives any amount, then
such Bank shall not be required to share any portion of such amount with
any Bank which has the legal right to, but does not, join in such action
or commence and diligently prosecute a separate action to enforce its
rights in another court.
29. THE AGENTS, THE ARRANGER AND THE BANKS
29.1 APPOINTMENT OF THE FACILITY AGENT
Each of the Finance Parties (other than the Facility Agent) hereby
appoints the Facility Agent to act as its agent in connection with the
Finance Documents and authorises the Facility Agent to exercise such
rights, powers, authorities and discretions as are specifically delegated
to the Facility Agent by the terms hereof together with all such rights,
powers, authorities and discretions as are reasonably incidental thereto.
29.2 APPOINTMENT OF THE SECURITY AGENT
Each of the Finance Parties (other than the Security Agent) hereby
irrevocably appoint the Security Agent to act as its agent in connection
with the Security Documents, with power to sub-delegate, and authorises
the Security Agent, with power to sub-delegate, to exercise such rights,
powers, authorities and discretions as are specifically delegated to the
Security Agent by the terms of the Finance Documents together with all
such rights, powers, authorities and discretions as are reasonably
incidental thereto. The exercise by the Security Agent of such rights,
powers, authorities and discretions shall at all times be subject to the
provisions of this Agreement.
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29.3 AGENTS' DISCRETIONS
Each Agent may:
29.3.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto,
that (a) any representation made or deemed to be made by the
Borrower in connection with the Finance Documents is true, (b)
no Event of Default or Potential Event of Default has occurred,
(c) the Borrower is not in breach of or default under its
obligations under the Finance Documents and (d) any right,
power, authority or discretion vested herein upon an Instructing
Group, the Banks or any other person or group of persons has not
been exercised;
29.3.2 assume that (a) the Facility Office of each Bank is that
notified to it by such Bank in writing prior to the date hereof
(or, in the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee) until it has
received from such Bank a notice of a change to the Facility
Office or any such information and act upon any such notice
until the same is superseded by a further such notice;
29.3.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon
any advice so obtained;
29.3.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Borrower upon a
certificate signed by or on behalf of the Borrower;
29.3.5 rely upon any communication or document believed by it to be
genuine;
29.3.6 refrain from exercising any right, power or discretion vested in
it as agent under the Finance Documents unless and until
instructed by an Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to
be exercised, as to the manner in which it should be exercised;
and
29.3.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with the Finance Documents
Agreement until it shall have received such security as it may
require (whether by way of payment in advance or otherwise) for
all costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or may
expend or incur in complying with such instructions.
29.4 AGENTS' OBLIGATIONS
Each Agent shall:
29.4.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from the
Borrower under the Finance Documents;
29.4.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by the Borrower in the due performance of
or compliance with its
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obligations under the Finance Documents of which such Agent has
notice from any other party hereto;
29.4.3 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the other Agent,
the Arranger and the Banks; and
29.4.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as agent
under the Finance Documents.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
29.5 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agents nor the Arranger shall:
29.5.1 be bound to enquire as to (a) whether or not any representation
made or deemed to be made by the Borrower in connection with the
Finance Documents is true, (b) the occurrence or otherwise of
any Event of Default (c) the performance by the Borrower of its
obligations under the Finance Documents or (d) any breach of or
default by the Borrower of or under its obligations under the
Finance Documents;
29.5.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
29.5.3 be bound to disclose to any other person any information
relating to any member of the Group if (a) such person, on
providing such information expressly stated to the Facility
Agent or, as the case may be, the Arranger, that such
information was confidential or (b) such disclosure would or
might in its opinion constitute a breach of any law or be
otherwise actionable at the suit of any person;
29.5.4 be under any obligations other than those for which express
provision is made herein; or
29.5.5 be or be deemed to be a fiduciary for any other party hereto.
29.6 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by either
of the Agents, indemnify such Agent, against any and all costs, claims,
losses, expenses (including legal fees) and liabilities together with any
VAT thereon which such Agent may incur, otherwise than by reason of its
own gross negligence or wilful misconduct, in acting in its capacity as
agent hereunder (other than any which have been reimbursed by the
Borrower pursuant to Clause 24.1 (BORROWER'S INDEMNITY)).
29.7 EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful misconduct, neither of
the Agents accepts any responsibility:
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29.7.1 for the adequacy, accuracy and/or completeness of the
Information or any other information supplied by the either of
the Agents or the Arranger, by the Borrower or by any other
person in connection with the Finance Documents, the
transactions therein contemplated or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents;
29.7.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents; or
29.7.3 for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection
with the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of,
pursuant to or in connection with the Finance Documents.
29.8 NO ACTIONS
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Agents or the Arranger
any claim it might have against any of them in respect of the matters
referred to in Clause 29.7 (EXCLUSION OF LIABILITIES).
29.9 BUSINESS WITH THE GROUP
Each of the Agents and the Arranger may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any
member of the Group.
29.10 AGENCY DIVISION SEPARATE
In acting as agent hereunder for the Banks, each Agent shall be regarded
as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 29, any
information received by some other division or department of such Agent
may be treated as confidential and shall not be regarded as having been
given to such Agent's agency division.
29.11 THE SECURITY AGENT
Each of the Security Agent and the other Finance Parties agrees that its
respective rights and obligations in relation to the Security Agent's
acting as security agent under any of the Facility Documents shall also
be governed by the foregoing provisions of this Clause 29.
29.12 SECURITY AGENT'S POWERS
The Security Agent may:
29.12.1 exercise and enforce in the name of and on behalf of the Banks
all of the rights, powers, authorities and remedies which the
Banks have or may have under any of the Finance Documents;
29.12.2 generally, do all acts and things which the Security Agent
considers necessary for the purposes of registering, perfecting,
protecting and administering the
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Security Documents and each of the Finance Documents and
enforcing any of the Banks' rights thereunder or in relation
thereto;
29.12.3 do any act or thing which in its absolute discretion it
considers necessary for the protection and benefit of all of the
Finance Parties; and
29.12.4 upon a disposal of any property the subject of any of the
Security Documents by any receiver, or by the Borrower where the
Security Agent has consented to such disposal, release such
property from the Security.
29.13 EXCLUDED RESPONSIBILITIES
Notwithstanding anything to the contrary expressed or implied in any of
the Finance Documents, the Security Agent shall not be bound to enquire
as to:
29.13.1 the due execution, delivery, validity, legality, adequacy,
suitability, performance, enforceability or admissibility in
evidence of the Facility Documents or any opinion, report,
valuation, certificate or appraisal delivered or made in
connection herewith or therewith or of any guarantee, indemnity
or Security given or created thereby or any obligations imposed
thereby or assumed thereunder; or
29.13.2 the ownership, value or sufficiency of any property the subject
of any of the Security, the priority of any of the Security, the
right or title of any person in or to any property comprised
therein or the existence of any encumbrance affecting the same.
29.14 FINANCE DOCUMENTS
The Security Agent shall be at liberty to place any of the Finance
Documents and any other instruments, documents or deeds delivered to it
pursuant to or in connection with any of the Finance Documents for the
time being in its possession in any safe deposit, safe or receptacle
selected by it or with any bank, any company whose business includes
undertaking the safe custody of documents or any firm of lawyers of good
repute and shall not be responsible for any loss thereby incurred if it
has exercised due care in selecting the same.
29.15 DELEGATION
The Security Agent may, whenever it thinks fit, delegate by power of
attorney or otherwise to any person or persons, or fluctuating body of
persons, all or any of the rights, powers, authorities and discretions
vested in it by any of the Finance Documents and such delegation may be
made upon such terms (including the power to sub-delegate) and subject to
such conditions and subject to such regulations as it may think fit and
it shall not be bound to supervise, or be in any way responsible for any
loss incurred by reason of any misconduct or default on the part of, any
such delegate or sub-delegate if it has exercised due care in selecting
the same provided that, notwithstanding any such delegation or
sub-delegation, the Security Agent shall remain responsible for the
performance of the obligations of the Security Agent under any of the
Finance Documents.
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29.16 BREACH OF LAW
Notwithstanding anything else contained in any of the Finance Documents,
the Security Agent may refrain from doing anything which would or might
in its reasonable opinion be contrary to any relevant law of any
jurisdiction or any relevant directive or regulation of any agency of any
state or which would or might otherwise render it liable to any person,
and may do anything which is, in its opinion, necessary to comply with
any such law, directive or regulation.
29.17 INDEMNITY
The Security Agent and every attorney, agent or other person appointed by
it or under any of the Finance Documents may indemnify itself or himself
out of the Security against all claims, demands, liabilities,
proceedings, losses and out of pocket costs, fees, charges and expenses
incurred by any of them (and in any such case to the extent not
previously reimbursed by an Obligor) in relation to or arising out of the
taking or holding of any of the Security, the exercise or purported
exercise of any of the rights, powers and discretions vested in any of
them or any other matter or thing done or omitted to be done in
connection with any of the Finance Documents or pursuant to any law or
regulation (otherwise than as a result of its gross negligence or wilful
misconduct).
29.18 INSURANCE
Without prejudice to the provisions of any of the Finance Documents the
Security Agent shall not be under any obligation to insure any of the
property subject to the Security or to require any other person to
maintain any such insurance and shall not be responsible for any loss
which may be suffered by any person as a result of the lack of or
inadequacy or insufficiency of any such insurance.
29.19 EXCLUSION OF LIABILITIES
The Security Agent shall not be liable (save in the case of gross
negligence or wilful misconduct on its part) for any failure:
29.19.1 to require the deposit with it of any deed or document
certifying, representing or constituting the title of any
Security Provider to any of the property subject to the
Security;
29.19.2 to obtain any licence, consent or other authority for the
execution, delivery, validity, legality, adequacy, performance,
enforceability or admissibility in evidence of any of the
Finance Documents;
29.19.3 to register or notify any of the foregoing in accordance with
the provisions of any of the documents of title of any Security
Provider;
29.19.4 to effect or procure registration of or otherwise protect any of
the Security by registering the same under any applicable
registration laws in any jurisdiction;
29.19.5 to take, or to require any Security Provider to take, any steps
to render the Security effective or to secure the creation of
any ancillary charge under the laws of any jurisdiction; or
29.19.6 to require any further assurances in relation to any of the
Finance Documents.
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29.20 TITLE AND SECURITY
The Security Agent shall be entitled to accept without enquiry,
requisition or objection such right and title as the relevant Security
Provider may have to any of the property or assets which is the subject
matter of any of the Security and shall not be bound or concerned to
investigate or make any enquiry into the right or title of any Security
Provider to such property or assets or, without prejudice to the
foregoing, to require any Security Provider to remedy any defect in such
right or title.
29.21 ADDITIONAL AGENTS
Each Agent may at any time after the occurrence of an Event of Default
which is continuing appoint any person to act either as a separate agent
or as a co-agent jointly with it for the purposes of conforming to any
legal requirements, restrictions or conditions which such Agent deems
relevant for the purposes of the enforcement of any of the Security (but
not for any other purpose) and such Agent shall give prior notice to each
of the other parties hereto of any such appointment. Any person so
appointed shall have such powers, authorities and discretions and such
duties and obligations as shall be conferred or imposed on such person by
the instrument of appointment and shall have the same benefits under the
foregoing provisions of this Clause 29 as such Agent provided that,
notwithstanding any such delegation, such Agent shall remain responsible
for the performance of the obligations of such Agent under any of the
Facility Documents to which it is a party. Each Agent shall have power in
like manner to remove any person so appointed. Such reasonable time cost
remuneration as each Agent may pay to any person so appointed, and any
reasonable costs, charges and expenses incurred by such person in
performing its functions pursuant to such appointment, shall for the
purposes hereof be treated as costs, charges, or as the case may be,
expenses of such Agent.
29.22 RESIGNATION OF THE AGENTS
An Agent may resign as agent under any of the Finance Documents to which
it is a party at any time without assigning any reason therefor by giving
not less than thirty days' prior written notice to that effect to each of
the other parties to this Agreement provided that no such resignation
shall be effective until (i) a successor to such Agent is appointed in
accordance with the provisions of this Clause 29, (ii) all of the
Security created by the Security Documents (in the case of the Security
Agent) and all of such Agent's rights, benefits and obligations as agent
under each of the Finance Documents to which it is a party have been
transferred to its successor, (iii) its successor has executed and
delivered to the Security Agent or, as the case may be, the outgoing
Security Agent (and the Security Agent or, as the case may be, the
outgoing Security Agent has countersigned) an undertaking in a form
reasonably acceptable to the Security Agent or, as the case may be, the
outgoing Security Agent in relation to such transfer.
29.23 SUCCESSOR AGENT
If any Agent gives notice of its resignation as agent pursuant to Clause
29.22 (RESIGNATION OF THE AGENTS), any reputable bank or other financial
institution may be appointed as a successor to such Agent by an
Instructing Group during the period of such notice but, if no such
successor is so appointed, such Agent may appoint such a successor itself
provided that in either case the requirements of Clause 29.22
(RESIGNATION OF THE AGENTS) are met and (unless an Event of Default has
occurred and is
69
continuing) the Borrower has given its prior written consent to the
appointment of such successor, such consent not to be unreasonably
withheld.
29.24 RIGHTS AND OBLIGATIONS
If a successor to any Agent is appointed under the provisions of Clause
29.22 (RESIGNATION OF THE AGENTS) and Clause 29.23 (SUCCESSOR AGENT), (i)
the resigning Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of
this Clause 29 and (ii) its successor and each of the other parties
hereto shall have the same rights and obligations amongst themselves as
they would have had if such successor had been a party to the Finance
Documents to which the resigning Agent was a party.
29.25 LAW GOVERNING AGENCY ISSUES
All powers of attorney and agency provisions contained herein, implied
hereunder or envisaged hereby shall be governed by and be construed in
accordance with Dutch law, and such choice of law is hereby expressly
accepted and acknowledged by all parties hereto as the law governing all
internal and external agency issues that may arise from time to time in
connection with such powers of attorney and agency provisions.
30. ASSIGNMENTS AND TRANSFERS
30.1 BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and Transferees
30.2 NO ASSIGNMENTS AND TRANSFERS BY THE BORROWER
The Borrower shall not be entitled to assign or transfer all or any of
its rights, benefits and obligations under the Finance Documents.
30.3 ASSIGNMENTS AND TRANSFERS BY BANKS
Any Bank may, at any time, transfer in accordance with Clause 30.5
(TRANSFERS BY BANKS) all or any of its rights, benefits and obligations
under the Finance Documents to a bank or financial institution provided
that (save in the case of any transfer (a) to any Affiliate of such Bank
or (b) to any other Bank) the Borrower has given its consent to such
transfer (such consent not to be unreasonably withheld or delayed and, in
the event that the Borrower does not respond to any request to give
consent within 10 Business Days of such request being received by it
shall be deemed to have consented to such transfer) and further provided
that the Arranger will not enter into transfers with more than 4 other
persons during primary syndication.
30.4 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 30.3
(ASSIGNMENTS AND TRANSFERS BY BANKS), then such transfer may be effected
by the delivery to the Facility Agent of a duly completed Transfer
Certificate executed by such Bank and the relevant Transferee in which
event, on the later of the Transfer Date specified in such Transfer
Certificate and the fifth Business Day after (or such earlier Business
Day endorsed by the Facility Agent on such Transfer Certificate falling
on or after) the date of delivery of such Transfer Certificate to the
Facility Agent:
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30.4.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations under the Finance Documents, the Borrower and such
Bank shall be released from further obligations towards one
another under the Finance Documents and their respective rights
against one another shall be cancelled (such rights and
obligations being referred to in this Clause 30.4 as "DISCHARGED
RIGHTS AND OBLIGATIONS");
30.4.2 the Obligors and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against
one another which differ from such discharged rights and
obligations only insofar as the Obligors and such Transferee
have assumed and/or acquired the same in place of the Obligors
and such Bank;
30.4.3 the Facility Agent, the Arrangers, such Transferee and the other
Banks shall acquire the same rights and benefits and assume the
same obligations between themselves as they would have acquired
and assumed had such Transferee been an original party hereto as
a Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer and to that extent
the Facility Agent, the Arranger and the relevant Bank shall
each be released from further obligations to each other
hereunder; and
30.4.4 such Transferee shall become a party hereto as a "Bank".
30.5 ASSIGNMENT AND TRANSFER FEES
On the date upon a transfer takes effect pursuant to Clause 30.4
(TRANSFERS BY BANKS) the relevant Transferee shall pay to the Facility
Agent for its own account a fee of EUR 1,500.
30.6 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
30.6.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under the Finance Documents;
30.6.2 with (or through) whom such Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
the Finance Documents or the Borrower; or
30.6.3 to whom information may be required to be disclosed by any
applicable law,
such information about the Borrower or the Group and the Finance
Documents as such Bank shall consider appropriate PROVIDED THAT in
relation to paragraphs 30.6.1 or 30.6.2 the person to whom such
information is to be given has entered into a Confidentiality
Undertaking.
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30.7 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
30.7.1 Unless expressly agreed to the contrary, a Transferor makes no
representation or warranty and assumes no responsibility to a
Transferee for:
(a) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(b) the financial condition of any Obligor;
(c) the performance and observance by any Obligor or Security
Provider of its obligations under the Finance Documents or
any other documents; or
(d) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are
excluded.
30.7.2 Each Transferee confirms to the Transferor and the other Finance
Parties that it:
(a) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each Obligor and its related entities in
connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by
the Transferor in connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
30.7.3 Nothing in any Finance Document obliges a Transferor to:
(a) accept a re-transfer from a Transferee of any of the rights
and obligations assigned or transferred under this Clause
30; or
(b) support any losses directly or indirectly incurred by the
Transferee by reason of the non-performance by any Obligor
or Security Provider of its obligations under the Finance
Documents or otherwise.
30.8 NOTIFICATION
The Facility Agent shall within fourteen days of receiving a Transfer
Certificate notify the Borrower and the other Banks of any assignment or
transfer completed pursuant to this Clause 30 (ASSIGNMENTS AND
TRANSFERS).
31. CALCULATIONS AND EVIDENCE OF DEBT
31.1 BASIS OF ACCRUAL
Any interest, commission or fee accruing hereunder will accrue from day
to day and is calculated on the basis of actual number of days elapsed
and a year of 360 days or, in any case where market practice differs in
accordance with market practice.
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31.2 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
31.3 CONTROL ACCOUNTS
The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Advance or
Unpaid Sum and each Bank's share therein, (b) the amount of all
principal, interest and other sums due or to become due from the Borrower
and each Bank's share therein and (c) the amount of any sum received or
recovered by the Facility Agent hereunder and each Bank's share therein.
31.4 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 31.2 (EVIDENCE OF DEBT) and Clause 31.3 (CONTROL ACCOUNTS) shall
be PRIMA FACIE evidence of the existence and amounts of the specified
obligations of the Borrower.
31.5 CERTIFICATES OF BANKS
A certificate of a Bank as to (a) the amount by which a sum payable to it
hereunder is to be increased under Clause 10.1 (TAX GROSS-UP), (b) the
amount for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 11.1 (INCREASED COSTS) or
Clause 24.1 (BORROWER'S INDEMNITY) or (c) the amount of any credit,
relief, remission or repayment as is mentioned in Clause 10.3 (CLAW-BACK
OF TAX BENEFIT) shall, in the absence of manifest error, be PRIMA FACIE
evidence of the existence and amounts of the specified obligations of the
Borrower.
32. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
32.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise thereof or the
exercise of any other right or remedy. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies
provided by law.
32.2 PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or
impaired thereby.
33. NOTICES
33.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or letter.
73
33.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Facility Agent,
specified another address or fax number) be made or delivered to the
address or fax number:
33.2.1 in the case of the Borrower, the Original Guarantors and the
Facility Agent, identified with its name below;
33.2.2 in the case of each Bank, notified in writing to the Facility
Agent prior to the date hereof (or, in the case of a Transferee,
at the end of the Transfer Certificate to which it is a party as
Transferee); and
33.2.3 in the case of an Additional Guarantor specified in the
Guarantor Accession Letter by which it became a party to this
Agreement,
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause at any time.
33.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
33.3.1 if by way of fax, be deemed to have been received when
transmission has been completed; and
33.3.2 if by way of letter, be deemed to have been delivered when left
at the relevant address or, as the case may be, ten days after
being deposited in the post postage prepaid in an envelope
addressed to it at such address,
PROVIDED THAT any communication or document to be made or delivered to
the Facility Agent shall be effective only when received by its agency
division and then only if the same is expressly marked for the attention
of the department or officer identified with the Facility Agent's
signature below (or such other department or officer as the Facility
Agent shall from time to time specify for this purpose).
33.4 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 33.2 (ADDRESSES) or changing its own address
and fax number the Facility Agent shall notify the other parties hereto
of such change.
33.5 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true and
accurate translation thereof.
34. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
74
35. AMENDMENTS
35.1 AMENDMENTS
If the Facility Agent has the prior consent of an Instructing Group, the
Facility Agent and the Borrower may from time to time agree in writing to
amend this Agreement or to waive, prospectively or retrospectively, any
of the requirements of this Agreement and any amendments or waivers so
agreed shall be binding on all the Finance Parties and the Borrower,
PROVIDED THAT no such waiver or amendment shall subject any party hereto
to any new or additional obligations without the consent of such party.
35.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
35.2.1 Clause 28 (SHARING) or this Clause 35;
35.2.2 reducing the proportion of any amount received or recovered in
respect of any amount due from the Borrower hereunder to which
any Bank is entitled;
35.2.3 a change in the principal amount of or currency of any Advance,
or extending the term of the Facility or the Term of any
Advance;
35.2.4 a change in the Margin, the amount or currency of any payment of
interest, fees or any other amount payable hereunder to any
Finance Party or deferral of the date for payment thereof;
35.2.5 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
35.3 EXCEPTIONS
Notwithstanding any other provisions hereof, the Facility Agent shall not
be obliged to agree to any such amendment or waiver if the same would:
35.3.1 amend or waive this Clause 35, Clause 22 (COSTS AND EXPENSES) or
Clause 29 (THE AGENTS, THE ARRANGER AND THE BANKS); or
35.3.2 otherwise amend or waive any of the Facility Agent's rights
hereunder or subject the Facility Agent or the Arranger to any
additional obligations hereunder.
36. GOVERNING LAW
This Agreement is governed by English law.
37. ENFORCEMENT
37.1 JURISDICTION OF ENGLISH COURTS
37.1.1 The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE").
75
37.1.2 The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
37.1.3 This Clause 37.1 is for the benefit of the Finance Parties only.
As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
37.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in
England and
Wales):
37.2.1 irrevocably appoints HRO Registrars Limited as its agent for
service of process in relation to any proceedings before the
English courts in connection with any Finance Document; and
37.2.2 agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
76
SCHEDULE 1
PARTIES
PART I - THE BANKS
BANK COMMITMENT
The Royal Bank of Scotland plc acting as agent for EUR 90,000,000
National Westminster Bank plc
PART II - THE ORIGINAL GUARANTORS
1. EWT Communications GmbH
2. Kabeldienst Kabelanschluss-Verwaltungsgesellschaft mbH
3. TSS Telekabel Service Sud Marketing und Verwaltung GmbH
4. EWT GmbH and TSS GmbH GbR
5. RFC Radio-, Fernseh- u. Computertechnik GmbH
6. AdiC - Antennendienst Calau GmbH
7. CTC GmbH Breitbandtechnik
77
SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
PART I
To: The Royal Bank of Scotland plc as Agent
From: [THE EXISTING LENDER] (the "EXISTING LENDER") and [THE NEW LENDER] (the
"NEW LENDER")
Dated:
EWT ELEKTRO & NACHRICHTENTECHNIK GMBH - EUR 90,000,000 FACILITY AGREEMENT DATED
24 OCTOBER, 2001 (THE "FACILITY AGREEMENT")
1. We refer to Clause 30 (TRANSFERS AND ASSIGNMENTS):
(a) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part
of the Existing Lender's Commitment, rights and obligations
referred to in the Schedule in accordance with Clause (TRANSFERS
BY BANKS).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of Clause
33.2 (ADDRESSES) are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 30.7 (LIMITATION
OF RESPONSIBILITY OF TRANSFERORS).
3. The New Lender hereby expressly consents to the declarations of the
Security Agent made on behalf and in the name of the New Lender as Future
Pledgee (as such term is defined in the Security Documents being pledges
and governed by German law) in such Security Documents. The New Lender
confirms that it is aware of the content of such Security Documents.
4. This Transfer Certificate is governed by English law.
78
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[INSERT RELEVANT DETAILS]
[FACILITY OFFICE ADDRESS, FAX NUMBER AND ATTENTION
DETAILS FOR NOTICES AND ACCOUNT DETAILS FOR PAYMENTS,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date
is confirmed as [ ].
[Agent]
By:
PART II
LMA TRANSFER CERTIFICATE (PAR)
BANK: Date:
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"SALE AGREEMENT") evidenced by the Confirmation dated between the Bank and the
Transferee (acting directly or through their respective agents) and (ii) the
Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the
Credit Agreement shall become
effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated in
the Sale Agreement;
(ii) the terms and conditions annexed hereto; and
(iii) the schedule annexed hereto,
all of which are incorporated herein by reference.
THE BANK
[NAME OF BANK]
By:
THE TRANSFEREE
[NAME OF TRANSFEREE] [ ]
By:
79
THE SCHEDULE
CREDIT AGREEMENT DETAILS:
Borrower(s): -----------------------------------------
Credit Agreement Dated -----------------------------------------
Guarantor(s): -----------------------------------------
Agent Bank: No Yes (specify)----------------
Security: -----------------------------------------
Total Facility Amount: -----------------------------------------
Governing Law: -----------------------------------------
Additional Information: -----------------------------------------
TRANSFER DETAILS:
Name of Tranche Facility: ----------------------- ---------------
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit, Other): ----------------------- ---------------
Final Maturity: ----------------------- ---------------
PARTICIPATION TRANSFERRED
Commitment transferred1 ----------------------- ---------------
Drawn Amount (details below):(1) ----------------------- ---------------
Undrawn Amount:(1) ----------------------- ---------------
Settlement Date: -----------------------------------------
DETAILS OF OUTSTANDING CREDITS(1)
Specify in respect of each Credit:
Transferred Portion (amount): -----------------------
Tranche/Facility: -----------------------
Nature: Term Revolver Acceptance Guarantee/Letter of Credit
Other (specify) -----------------------
Details of other Credits are set out on the attached sheet
ADMINISTRATION DETAILS
Bank's Receiving Account: --------------------------------------
Transferee's Receiving Account: --------------------------------------
ADDRESSES
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref Attn/Ref
----------
(1) As at the date of the Transfer Certificate
80
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "TRANSFER CERTIFICATE") to which they are
annexed.
1. INTERPRETATION
In these Terms and Conditions words and expressions shall (unless otherwise
expressly defined herein) bear the meaning given to them in the Transfer
Certificate, the
Credit Agreement or the Sale Agreement.
2. TRANSFER
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the Bank
under the
Credit Agreement as is set out in the relevant part of the
Transfer Certificate under the heading "Participation Transferred" (the
"Purchased Assets") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice specified
in the
Credit Agreement. On the Transfer Date the Transferee shall pay to
the Bank the Settlement Amount as specified in the pricing letter between
the Bank and the Transferee dated the date of the Transfer Certificate
(adjusted, if applicable, in accordance with the Sale Agreement) and
completion of the transfer will take place.
3. EFFECTIVENESS OF TRANSFER
The Transferee hereby requests the Agent to accept the Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of the
Credit Agreement so as to take effect in accordance with the terms of the
Credit Agreement on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4. TRANSFEREE'S UNDERTAKING
The Transferee hereby undertakes with the Agent and the Bank and each of
the other parties to the Credit Documentation that it will perform in
accordance with its terms all those obligations which by the terms thereof
will be assumed by it after delivery of the Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which the
Transfer Certificate is to take effect.
5. PAYMENTS
5.1 PLACE
All payments by either party to the other under the Transfer Certificate
shall be made to the Receiving Account of that other party. Each party may
designate a different account as its Receiving Account for payment by
giving the other not less than five Business Days notice before the due
date for payment.
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5.2 FUNDS
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times and
in such funds as are customary at the time for settlement of transactions
in that currency.
6. THE AGENT
The Agent shall not be required to concern itself with the Sale Agreement
and may rely on the Transfer Certificate without taking account of the
provisions of such agreement.
7. ASSIGNMENT OF RIGHTS
The Transfer Certificate shall be binding upon and enure to the benefit of
each party and its successors and permitted assigns provided that neither
party may assign or transfer its rights thereunder without the prior
written consent of the other party.
8. GOVERNING LAW AND JURISDICTION
The Transfer Certificate (including, without limitation, these Terms and
Conditions) shall be governed by and construed in accordance with the laws
of England, and the parties submit to the non-exclusive jurisdiction of the
English courts.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for any
reason the appointing party shall notify the other party and shall promptly
appoint another person incorporated within
England and Wales to act as its
process agent.
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SCHEDULE 3
CONDITIONS PRECEDENT
PART I
DOCUMENTS TO BE DELIVERED BEFORE FIRST DRAWDOWN
1. A copy, certified as at the date of this Agreement a true and up-to-date
copy by an Authorised Signatory of an extract of the commercial register
(HANDELSREGISTER) and the Articles of Association of each Obligor and
Security Provider.
2. If applicable under the Articles of Association of the relevant person, a
copy, certified as at the date of this Agreement a true and up-to-date copy
by an Authorised Signatory of each Obligor and Security Provider, of a
resolution of each Obligor and Security Provider and any other corporate
approvals necessary to approve the execution, delivery and performance of
the Finance Documents and the terms and conditions thereof and authorising
the legal representatives of such Obligor or Security Provider to sign the
Finance Documents to which such Obligor or Security Provider is party and
any documents to be delivered by it pursuant thereto.
3. A certificate of an Authorised Signatory of each Obligor and Security
Provider setting out the signatures of the persons authorised to sign the
Finance Documents on behalf of such Obligor or Security Provider.
4. An opinion of Xxxxxxxx Chance Punder as to matters of German law
satisfactory in form and substance to the Facility Agent.
5. An opinion of Xxxxxxxx Chance as to matters of English law satisfactory in
form and substance to the Facility Agent.
6. A copy, certified a true copy by an Authorised Signatory of the Borrower,
of the Original Financial Statements.
7. Original executed copies of each of the Finance Documents.
8. Copies, certified by the Authorised Signatory of the Borrower to be true,
complete and up to date copies of the Principal Agreements, the Necessary
Authorisations and the BdW Agreement in form and substance satisfactory to
the Facility Agent.
9. A legal opinion of Holme Xxxxxxx & Xxxx LLP legal advisers to the Borrower,
confirming that the entry into the Finance Documents by the Obligors and
the Security Providers will not result in any default under the Indentures.
10. Management Base Case in form and substance satisfactory to the Facility
Agent.
11. Evidence that the Existing Borrowings (other than the Permitted Existing
Borrowings) will be repaid in full out of the proceeds of the first Advance
and that the documentation under which the Existing Borrowings (other than
the Permitted Existing Borrowings) were incurred will be cancelled in full
and that all Encumbrances (other than Permitted Encumbrances) will be
released, in each case with effect from the first Drawdown Date
83
(PROVIDED THAT, for the avoidance of doubt, such evidence shall include and
provide for, with effect from the first Drawdown Date, the release but not
the deletion in the competent land register of Encumbrances securing
Existing Borrowings (and created prior to the date hereof) in relation to
the properties listed in Schedule 11 (SECURED REAL PROPERTY)).
12. Evidence that all fees, costs and expenses required to be paid by the
Borrower to the Arranger, the Facility Agent or the Security Agent as of
such date have been paid.
PART II
DOCUMENTS TO BE DELIVERED IN RESPECT OF AN ADDITIONAL GUARANTOR
1. A Guarantor Accession Letter, duly executed by the Additional Guarantor and
the Borrower.
2. A copy of the constitutional documents of the Additional Guarantor.
3. A copy of all resolutions of the board of directors or other relevant body
of the Additional Guarantor:
(a) approving the terms of, and the transactions contemplated by, the
Guarantor Accession Letter and the Finance Documents and resolving
that it execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices to be signed and/or
despatched by it under or in connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A copy of a resolution signed by all the holders of the issued shares of
the Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Guarantor is
a party, if deemed to be necessary under applicable law by counsel to the
Banks.
6. A certificate of the Additional Guarantor (signed by an Authorised
Signatory) confirming that guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or similar limit
binding on it to be exceeded.
7. A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document listed in this Part II of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier than
the date of the Guarantor Accession Letter.
8. A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and
84
performance of the transactions contemplated by the Guarantor Accession
Letter or for the validity and enforceability of any Finance Document.
9. If available, the latest audited financial statements of the Additional
Guarantor.
10. A legal opinion of Xxxxxxxx Chance, as to matters of English law.
11. If the Additional Guarantor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Arranger
and the Agent in the jurisdiction in which the Additional Obligor is
incorporated.
12. If the proposed Additional Obligor is incorporated in a jurisdiction other
than
England and Wales, evidence that the process agent specified in Clause
37.2 (SERVICE OF PROCESS), if not an Obligor, has accepted its appointment
in relation to the proposed Additional Obligor.
85
SCHEDULE 4
NOTICE OF DRAWDOWN
From: EWT Elektro & Nachrichtentechnik GmbH.
To: The Royal Bank of Scotland plc
Attention: Xxxxxx Xxxxxxx/ Xxxxx Xxxxxxxx Natwest Global Services, Financial
Markets
Fax: 0000 000 000 0000
Dated:
Dear Sirs,
1. We refer to the agreement (the "FACILITY AGREEMENT") dated 24 October, 2001
and made between ourselves as borrower, yourselves as Facility Agent and
Security Agent, the financial institutions named therein as banks and the
companies named therein as Guarantors. Terms defined in the Facility
Agreement shall have the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Facility Agreement and upon
the terms and subject to the conditions contained therein, we wish an
Advance to be made to us as follows:
(a) Currency and Amount:
(b) Drawdown Date:
(c) Term:
4. We confirm that, at the date hereof, the Repeated Representations are true
in all material respects and no Event of Default has occurred and is
continuing.
5. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully,
-----------------
Authorised Signatory
for and on behalf of
EWT Elektro & Nachrichtentechnik GmbH
-----------------
Authorised Signatory
for and on behalf of
UPC Germany GmbH
86
SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: The Royal Bank of Scotland plc
Date:
Dear Sirs,
We refer to an agreement (the "FACILITY AGREEMENT" dated 24 October, 2001 and
made between EWT Elektro & Nachrichtentechnik GmbH as borrower, the entitles
identified therein as Guarantors, The Royal Bank of Scotland plc as Facility
Agent and Security Agent and the financial institutions defined therein as
Banks.
Terms defined in the Facility Agreement shall bear the same meaning herein.
This Compliance Certificate is issued in relation to the Quarter Period ending
on [-] (respectively the "RELEVANT QUARTER PERIOD" and the "RELEVANT QUARTER
DAY")
We confirm that:
(1) Consolidated Net Borrowings as at the Relevant Quarter Date was EUR [-].
(2) Consolidated EBITDA in respect of the Relevant Quarter Period and the
immediately preceding Quarter Period was EUR [-].
(3) The ratio of (1) to two times (2) is [-]:[-].
(4) The number of subscribers of the Group as at the Relevant Quarter Day was
[-], therefore Consolidated Net Borrowings per subscriber as at the
Relevant Quarter Day was EUR [-].
(5) Annualised Quarterly Revenue in respect of the Relevant Quarter Period was
[-]
(6) The consolidated book value of the assets of the Group as at the Relevant
Quarter Date was EUR [-]. The Borrower and the Guarantors together
contributed [-] per cent. of Consolidated EBITDA for the Relevant Quarter
Period and the immediately preceding Quarter Period and directly owned [-]
per cent. of the book value of the Group's consolidated assets as at the
Relevant Quarter Date (disregarding for these purposes any book value
attributed to shareholding in other members of the Group).
Signed: [AUTHORISED SIGNATORY OF THE BORROWER (IN RELATION TO QUARTERLY
MANAGEMENT ACCOUNTS)]/[AUDITORS OF THE BORROWER (IN RELATION TO ANNUAL
ACCOUNTS)]
87
SCHEDULE 6
PRINCIPAL AGREEMENTS
PART I - GESTATTUNGSVERTRAGE
1. Gestattungsvertrag zur Errichtung von Gemeinschaftsantennenanlagen between
TSS GmbH and Wohnbaugesellschaft Xxxxxxxxxxx mbH dated 28 February 1997.
2. Mietvertrag between EWT Communications GmbH and Aktienbaugesellschaft fur
kleine Wohunungen, Frankfurt dated 26 April 1989 and 9 May 1989 as modified
by Agreement betweeen EWT Communications GmbH and AGB Frankfurt Holding
Wohnungsbau- und Beteiligungsgesellschaft dated 24 June 1998.
3. Gestattungs- und Betriebsvertrag fur Gemeinschaftsantennenanlagen und
private Breitbandanlagen between TSS and WBM Wohnungsbaugesellschaft Mitte
mbH dated 31 October 1996.
4. Rahmen- und Gestattungsvertrag fur private Breitbandanlagen between EWT
Communications GmbH and Xxxx-Xxxxx Immobilien-Dienstleistungsgesellschaft
mbH dated 26 and 29 May 1998
5. Vertrag fur Gemeinschaftsantennenanlagen und private Breitbandanlagen
zwischen der BBCom Berlin-Brandenburgische Communicationsgesellschaft mbH,
Berliner Wohn- und Geschaftshaus GmbH BEWOGE, TSS GmbH, WBM
Wohnbaugesellschaft Berlin-Mitte mbH, WBMI Real Estate Aktiengesellschaft
Berlin and TSB Haus- und Bautechnische Servicegesellschaft mbH
Xxxxxx-Xxxxxxxxxxx dated May 2000 as amended by agreement between Bbcom
GmbH and Berliner Wohn- und Geschaftshaus GmbH BEWOGE dated 31 August 2000.
PART II - SIGNAL DELIVERY AND CONNECTION AGREEMENTS
6. Einzelanschlie(beta)ungsvertrag between Kabel Deutschland GmbH and TSS
dated 20. April 1999
7. Vereinbarung (Einzelanschlie(beta)ungsvereinbarung for Merseburg and
Wei(beta)enfels) between Deutsche Telekom AG, Niederlassung Halle and TSS
dated on or about 21.12.1995
8. Vereinbarung between Deutsche Bundespost Telekom (Vertreten durch die
Direktion Berlin) and TSS dated 12 November 1993.
9. Rahmenvertrag between Kabel Deutschland GmbH and the Borrower dated 16 and
22 September 1999
88
SCHEDULE 7
MANDATORY COSTS FORMULA
1. The Mandatory Cost is an addition to the interest rate in relation to the
cost of compliance with (a) the requirements of the Bank of England and/or
the Financial Services Authority (or, in either case, any other authority
which replaces all or any of its functions) or (b) the requirements of the
European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COST RATE") in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Agent by reference to
the Agent's own rates and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Bank lending from a Facility Office in a
Participating Member State will be the percentage determined by the
Facility Agent as the cost of complying with the minimum reserve
requirements of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
4.1 in relation to a domestic sterling Loan:
AB+C(B-D)+E X 0.01
(a) ------------------ per cent. per annum
100-(A+C)
4.2 in relation to a Loan in any currency other than domestic sterling:
E X 0.01
(a) -------- per cent. per annum.
300
5. Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which the Agent is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost) payable for the relevant Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which the Agent is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
E is the rate of charge payable by the Agent to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee
89
required pursuant to the Fees Regulations) and expressed in pounds per
L1,000,000 of the Fee Base of the Agent.
6. For the purposes of this Schedule:
6.1 "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given to
them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;
6.2 "FEES REGULATIONS" means the Banking Supervision (Fees) Regulations 2000 or
such other law or regulation as may be in force from time to time in
respect of the payment of fees for banking supervision; and
6.3 "FEE BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
7. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
8. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender.
9. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
10. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
90
SCHEDULE 8
FORM OF CONFIDENTIALITY UNDERTAKING
[DATE]
Dear Sirs,
EUR 90 MILLION REVOLVING CREDIT
FACILITY FOR EWT ELEKTRO & NACHRICHTENTECHNIK GMBH (THE "FACILITY")
Words and expressions used in the Loan Facility Agreement dated 24 October, 2001
shall, unless otherwise defined have the same meaning in this letter.
[You have expressed interest in entering into the Facility with us]. [You have
provided us with written notice pursuant to Clause 17.4 that a Potential Event
of Default or an Event of Default is continuing. Clause 15.10 (INSPECTION)
specifically provides that the Borrower shall, if required by the Facility Agent
(acting on the instructions of an Instructing Group), at any time whilst a
Potential Event of Default is continuing, permit to the extent it is able to do
so, representatives of the Facility Agent, upon reasonable prior written notice
to the Borrower, or other relevant member of the Group, after having made
arrangements with the Borrower so to do after entering into a Confidential
Undertaking to visit and inspect the properties of any member of the Group
during normal business hours and to inspect and make copies of its books and
records other than records which the relevant number of the Group is prohibited
by law from disclosing to the Facility Agent and/or any relevant Bank and
discuss with its principal officers and Auditors and other accountants employed
by the relevant member of the Group for producing financial statements in
accordance with accounting principles generally accepted in Germany its
business, assets, liabilities, financial position, results of operations and
business prospects provided that such discussions with the Auditors or other
accountants shall only be on the basis of the audited accounts of the Group.]
* DELETE AS APPROPRIATE.
1. KEEPING CONFIDENTIAL INFORMATION CONFIDENTIAL
You shall keep the Confidential Information confidential and, in
particular, you shall:
(a) keep all documents and other material containing, reflecting, or which
are generated from any Confidential Information separate from all
other documents and materials and at your usual place of business in [
];
(b) exercise in relation to the Confidential Information no lesser
security measures and degree of care than those which you apply to
your own confidential information (and which you warrant as providing
adequate protection against any unauthorised disclosure, copying or
use).
(c) As you have exercised your rights pursuant to Clause 14.10
(INSPECTION) you shall keep such Confidential Information
confidential.
2. USE OF CONFIDENTIAL INFORMATION
91
You shall not use the Confidential Information for any purpose other than
[in connection with deciding whether to enter into the Facility] [for the
determination of whether an Event of Default has occurred or in order to
review the Bank's overall security position and if necessary to enable the
Security Agent to exercise its rights pursuant to the Securities]. *Delete
as appropriate.
3. DISCLOSURE OF CONFIDENTIAL INFORMATION
3.1 You shall not disclose the Confidential Information to another person
except that you may disclose the Confidential Information:
(a) to your employees, professional advisors, authorised representatives
(or sub-contractors) to the extent that it is essential to enable you
to decide whether to [enter into the Facility] [determine whether or
not a Potential Event of Default or an Event of Default has occurred.]
*Delete as appropriate.
(b) if disclosure is required by law, by a court of competent jurisdiction
or by another appropriate regulatory body provided that you give us
not less than two business days' notice in writing of that disclosure.
3.2 You shall use all reasonable efforts to prevent the disclosure of the
Confidential Information except as mentioned in paragraph 3.1.
3.3 You shall ensure that each person to whom Confidential Information is
disclosed pursuant to paragraph 3.1(a) complies with the terms of this
Agreement as if that person were a party to this Agreement.
4. DURATION
4.1 This undertaking shall be of indefinite duration [or ( ) days in
circumstances where an Event of Default has occurred.] *Delete if
appropriate.
4.2 You shall, within 7 days of a written request from us, return to us all
documents and other material in your possession, custody or control that
contain any part of the Confidential Information (except for documents and
material which you are required to retain in accordance with any legal or
regulatory requirement or which has become part of your permanent records)
[unless a Potential Event of Default or an Event of Default has
occurred][unless you decide to enter into the Facility with us.] *Delete as
appropriate.
5. EXCEPTIONS
This Agreement does not apply to any Confidential Information:-
(a) to the extent that it is or becomes publicly known other than by
breach of this Agreement by you.
(b) which you can show by your written records was in your possession
prior to you receiving it from us and which you had not previously
obtained from us or from another person on our behalf under an
obligation of confidence.
92
6. FURTHER AGREEMENTS
6.1 No right or licence is granted to you in relation to the Confidential
Information other than as expressly set out in this Agreement.
6.2 We accept no responsibility for and make no representation or warranty,
express or implied with respect to the truth, accuracy, completeness or
reasonableness of the Confidential Information. We are not liable to you or
another person in respect of the Confidential Information or its use.
6.3 [You shall not disclose to any person, except those referred to in
paragraph 3.1, the fact that discussions or negotiations are taking place
between us concerning the Facility without our prior written consent.]
*Delete as appropriate.
6.4 The failure to exercise or delay in exercising a right or remedy provided
by this Agreement or by law does not constitute a waiver of the right or
remedy or a waiver of other rights or remedies. No single or partial
exercise of a right or remedy provided by this Agreement or by law prevents
further exercise of the right or remedy or the exercise of another right or
remedy.
6.5 Damages would not be an adequate remedy for a breach of this Agreement and
we are entitled to the remedies of injunction, specific performance and
other equitable relief for a threatened or actual breach of this Agreement.
7. DEFINITIONS
In this Agreement:
"CONFIDENTIAL INFORMATION" means any information (other than the
information contained as part of the Information as defined in the Loan
Facility Agreement) disclosed (whether before or after the date of this
Agreement and whether in writing, verbally or by any other means and
whether directly or indirectly) by us or by another person on our behalf to
you or to another person on your behalf including, without limitation, any
information relating to the Facility for our products, operations,
processes, plans or intentions, product information, know-how, design
rights, trade secrets, market opportunities and business affairs [and shall
include any information disclosed by virtue of the Facility Agent
exercising its rights pursuant to Clause 14.10 (INSPECTION)]. *Delete as
appropriate.
8. GOVERNING LAW
This Agreement is governed by English law.
Please indicate your acceptance of this Agreement by signing and returning
the enclosed copy of this Agreement to us.
Yours faithfully
93
-----------------------------------
for and on behalf of
[ ]
Agreed and accepted by
-----------------------------------
for and on behalf of
[ ]
94
SCHEDULE 9
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [ADDITIONAL GUARANTOR] and EWT Elektro & Nachrichentechnik GmbH
Dated:
Dear Sirs
EWT ELEKTRO & NACHRICHENTECHNIK GMBH - EUR 90,000,000 FACILITY AGREEMENT
DATED 24 OCTOBER, 2001 (THE "FACILITY AGREEMENT")
1. [SUBSIDIARY] agrees to become an Additional Guarantor] and to be bound by
the terms of the Facility Agreement as an Additional Guarantor] pursuant to
Clause 20.10 (ADDITIONAL GUARANTORS) of the Facility Agreement.
[SUBSIDIARY] is a company duly incorporated under the laws of [NAME OF
RELEVANT JURISDICTION].
2. [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No:
Attention:
3. This letter is governed by English law.
This Guarantor Accession Letter is entered into by a deed.
EWT ELEKTRO & NACHRICHENTECHNIK GMBH
By:
[SUBSIDIARY]
By:
95
SCHEDULE 10
EXISTING BORROWERS
Part A
Existing Borrowings to be Refinanced
Part B
Permitted Existing Borrowings
1. Loan from HypoVereinsbank to EWT GmbH and TSS GmbH GBR dated [ ] in the
amount of DM 6,501,845.
2. Loan from HypoVereinsbank to EWT GmbH and TSS GmbH GBR dated [ ] in the
amount of DM 2,862,126.
3. Loan from HypoVereinsbank to EWT GmbH and TSS GmbH GBR dated [ ] in the
amount of DM 350,000.
4. Indebtedness in the amount of DM 5,000,000 borrowed by EWT Communications
GmbH pursuant to the BdW Agreement.
96
SCHEDULE 11
SECURED REAL PROPERTY
1. Chemnitz Schonau, land register sheet 1689, parcels of land 528/8, 530/6
and 531/4
2. Chemnitz Gablenz, land register sheet 1813, parcel of land 1000/4
3. Augsburg Schwabmunchen, land register volume 101, land register sheet 3675,
parcel of land 497/9
4. Berlin Tempelhof-Kreuzberg, Mitte, land register sheet 693N, subdividable
land 42220, parcel of land 123
97
SCHEDULE 12
NECESSARY AUTHORISATIONS
1. License Class 3 number 54 70 0001 A granted in favour of tss GmbH in
respect of Berlin/Xxxxxxxxxxx, Berlin Mitte and Riesa an der Elbe dated 19
August 1998
2. License Class 3 number 98 03 1120 granted in favour of the Borrower in
respect of parts of Chemnitz dated 13 July 2000
3. License Classe 3 number 98 03 0198 (as amended by Anderungsbescheid 98 03
0198A, Anderungsbescheid 98 03 0198B, Anderungsbescheid 98 03 0198C and
Anderungsbescheid 98 03 0198D) granted in favour of EWT Communications GmbH
in respect of several parts of Bavaria, Nordrhein-Westfalen,
Rheinland-Pfalz and Hessen, Baden-Wurttembergdated 15 October 1998
4. Lizenzurkunde 98 70 2354 granted in favour of EWT Communications GmbH in
respect of parts of Dortmund dated 13 March 2001.
98
SCHEDULE 13
FORM OF STATISTICS REPORT
Month End: [ ]
------------------------------------------------------------------------------------------------------------
Current Previous Increase/
Month Decrease
Month
------------------------------------------------------------------------------------------------------------
Homes Passed
------------------------------------------------------------------------------------------------------------
Two-way Upgraded Homes
------------------------------------------------------------------------------------------------------------
Homes Serviceable Analogue TV
------------------------------------------------------------------------------------------------------------
Homes Serviceable Internet
------------------------------------------------------------------------------------------------------------
Homes Serviceable Telephony
------------------------------------------------------------------------------------------------------------
Basic Subscribers
------------------------------------------------------------------------------------------------------------
Internet Subscribers
------------------------------------------------------------------------------------------------------------
Telephony Subscribers
------------------------------------------------------------------------------------------------------------
We the undersigned certify the above information;
------------------------------------------------
Authorised Signatory of
EWT Elektro & Nachrichtentechnik GmbH
------------------------------------------------
Authorised Signatory of
UPC Germany GmbH.
99
SIGNATURES
THE BORROWER
EWT ELEKTRO & NACHRICHTENTECHNIK GMBH
By: Xxxxxxx Xxxx
Address: Xxxxxxxxxxxxxxx 0-0, 00000 Xxxxxxxx, Xxxxxxx (registered at the
local court of Augsburg under HRB 6601)
Fax: x00 (0)000 00 00 000
Attention: Xxxxxxx Xxxx
THE ORIGINAL GUARANTORS
EWT COMMUNICATIONS GmbH
By: Xxxxxxx Xxxx by power-of-attorney
Address: Xxxxxxxxxxxxxxx 0-0, 00000 Xxxxxxxx, Xxxxxxx (registered in the
commercial register (HANDELSREGISTER) at the local court of Augsburg under HRB
15612)
Fax: x00 (0)000 00 00 000
Attention: Xx. Xxxxx
CTC GMBH BREITBANDTECHNIK
By: Xxxxxxx Xxxx by power-of-attorney
Address:
Fax:
Attention:
KABELDIENST KABELANSCHLUSS-VERWALTUNGSGESALLSCHAFT MBH
By: Xxxxxxx Xxxx by power-of-attorney
Address:
Fax:
Attention:
100
TSS TELEKABEL SERVICE SUD MARKETING UND VERWALTUNG GMBH
By: Xxxxxxx Xxxx under power of attorney
Address: Xxxxxxxxxxxxxxx 0-0, 00000 Xxxxxxxx, Xxxxxxx (registered in the
commercial register (HANDELSREGISTER) at the local court of Augsburg under HRB
10404)
Fax: x00 (0)000 00 00 000
Attention: Xxxxxx Xxxxxxxxx
ADIC ANTENNENDIENST CALAU GMBH
By: Xxxxxxx Xxx under power of attorney
Address:
Fax:
Attention:
EWT GmbH AND TSS GmbH GBR
BY: EWT ELEKTRO & NACHRICHTENTECHNIK GmbH AND TSS TELEKABEL SERVICE
SUD MARKETING UND VERWALTUNG GmbH
By: Xxxxxxx Xxxx
EWT Elektro & Nachrichtentechnik GmbH
By: Xxxxxxx Xxxx under power of attorney
TSS Telekabel Service Sud Marketing und Verwaltung GmbH
Address: Xxxxxxxxxxxxxxx 0-0, 00000 Xxxxxxxx, Xxxxxxx
Fax: x00 (0)000 00 00 000
Attention: Xx. Xxxxx
RFC RADIO, FEMSEH UND COMPUTERTECHNIK GMBH
By: Xxxxxxx Xxxx
Address: Xxxxxxxxxxxxxxx 0, 00000 Xxxxxxxx, Xxxxxxx, registered in the
commercial register (HANDELSREGISTER) at the local court (AMTSGERICHT) of
Chemnitz under HRB 4346
Fax: x00 (0)000 0 00 00
Attention: Xxxxxxx Xxxx
101
THE ARRANGER
THE ROYAL BANK OF SCOTLAND PLC
By: Xxxxxx Xxxxx
Address: 000 Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 (0) 000 000 0000
Attention: Xxxxxx Xxxxx / Xxxxx Dec, Corporate & Institutional Banking
THE FACILITY AGENT
THE ROYAL BANK OF SCOTLAND PLC
By: Xxxxxxx X. Xxxxx
FOR OPERATIONAL MATTERS:
Address: The Royal Bank of Scotland plc
XX Xxx 000
0xx Xxxxx, Xxxxxxx Xxxxx
00 Xxxxxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Tel: + 00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
Attention: CBO Loans Administration / XXX
FOR NON-OPERATIONAL MATTERS:
Address: The Royal Bank of Scotland plc
Xxxxx 0
000 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
Attention: Xxxx Xxxxx
102
THE SECURITY AGENT
THE ROYAL BANK OF SCOTLAND PLC
By: Xxxxxxx X. Xxxxx
FOR OPERATIONAL AND NON-OPERATIONAL MATTERS:
Address: The Royal Bank of Scotland plc
Xxxxx 0
000 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
Attention: Syndicated Loans Agency
THE BANKS
FOR AND ON BEHALF OF
THE ROYAL BANK OF SCOTLAND PLC
ACTING AS AGENT FOR
NATIONAL WESTMINSTER BANK PLC
By: Xxxxxx Xxxxx
Address: The National Westminster Bank plc
Global Services, Financial Markets
000 Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 (0) 000 000 0000
Attention: Xxxxxx Xxxxxxx, NatWest Global Services, Financial Markets,
103
