SCHEDULE 2 SENIOR FACILITIES AGREEMENT dated 3 March 2006, as amended and restated on 22 May 2006, between VIRGIN MEDIA INC. (formerly known as NTL Incorporated) as Ultimate Parent VIRGIN MEDIA FINANCE PLC (formerly known as NTL Cable PLC) as Parent...
Exhibit 10.1
SCHEDULE
2
£5,165,652,430.56
€500,000,000
$650,000,000
dated
3 March 2006, as amended and restated on 22 May 2006,
10
July 2006, 10 August 2006, 4 April 2007, 15 May 2008 and 10 November
2008
between
(formerly
known as NTL Incorporated)
as
Ultimate Parent
VIRGIN
MEDIA FINANCE PLC
(formerly
known as NTL Cable PLC)
as
Parent
VIRGIN
MEDIA INVESTMENT HOLDINGS LIMITED
(formerly
known as NTL Investment Holdings Limited)
TELEWEST
COMMUNICATIONS NETWORKS LIMITED
VMIH
SUB LIMITED
(formerly
known as NTLIH Sub Limited)
as UK
Borrowers
VIRGIN
MEDIA DOVER LLC
(formerly
known as NTL Dover LLC)
as US
Borrower
THE
ORIGINAL GUARANTORS
DEUTSCHE
BANK AG, LONDON BRANCH
X.X.
XXXXXX PLC
THE
ROYAL BANK OF SCOTLAND PLC
XXXXXXX
SACHS INTERNATIONAL
as
Bookrunners and Mandated Lead Arrangers
DEUTSCHE
BANK AG, LONDON BRANCH
as
Facility Agent and Security Trustee
DEUTSCHE
BANK AG, NEW YORK BRANCH
as US
Paying Agent
GE
CORPORATE BANKING EUROPE SAS
as
Administrative Agent
THE
LENDERS
and
DEUTSCHE
BANK AG, LONDON BRANCH
as
Original L/C Bank
WHITE & CASE LLP
0 Xxx
Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
TABLE
OF CONTENTS
THIS AGREEMENT is dated 3
March 2006 as amended and restated 22 May 2006, 10 July 2006, 10 August 2006, 4
April 2007, 15 May 2008 and 10 November 2008.
BETWEEN:
|
(1)
|
VIRGIN MEDIA INC.
(formerly known as NTL Incorporated), a company incorporated in the State
of Delaware, United States of America, whose registered office is at 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, United States of America
(the “Ultimate
Parent”);
|
|
(2)
|
VIRGIN MEDIA FINANCE PLC
(formerly known as NTL Cable PLC), a company
incorporated in England & Wales with registered number 5061787 and
having its registered office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX
(the “Parent”);
|
|
(3)
|
VIRGIN MEDIA INVESTMENT HOLDINGS
LIMITED (formerly known as NTL Investment Holdings Limited), a company
incorporated in England and Wales under registered number 3173552 and
having its registered office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX
(“VMIH”);
|
|
(4)
|
TELEWEST COMMUNICATIONS
NETWORKS LIMITED, a company incorporated in England and Wales under
registered number 3071086, and having its registered office at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX (or, following a Solvent Liquidation
thereof pursuant to the provisions of Clause 25.20 (Solvent Liquidation),
the relevant Successor Entity, “TCN”);
|
|
(5)
|
VMIH SUB LIMITED
(formerly known as NTLIH Sub Limited), a company incorporated in England
and Wales with registered number 5316140 and having
its registered office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX (“VMIH Sub”);
|
|
(6)
|
VIRGIN MEDIA DOVER LLC
(formerly known as NTL Dover LLC), a limited liability company organised
under the laws of the State of Delaware, United States of America, whose
registered office is at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000,
United States of America (the “US
Borrower”);
|
|
(7)
|
THE ORIGINAL GUARANTORS
(as defined below);
|
|
(8)
|
DEUTSCHE BANK AG, LONDON
BRANCH, X.X. XXXXXX PLC, THE ROYAL BANK OF SCOTLAND PLC and XXXXXXX SACHS INTERNATIONAL
(each a “Bookrunner” and
together, the “Bookrunners”);
|
|
(9)
|
DEUTSCHE BANK AG, LONDON
BRANCH, X.X. XXXXXX PLC, THE ROYAL BANK OF SCOTLAND PLC and XXXXXXX SACHS
INTERNATIONAL (each a “Mandated Lead Arranger”
and together, the “Mandated Lead
Arrangers”);
|
|
(10)
|
DEUTSCHE BANK AG, LONDON
BRANCH (as agent for and on behalf of the Finance Parties, the
“Facility
Agent”);
|
|
(11)
|
DEUTSCHE BANK AG, NEW YORK
BRANCH (as United States paying agent for and on behalf of the
Finance Parties, the “US Paying
Agent”);
|
|
(12)
|
DEUTSCHE BANK AG, LONDON
BRANCH (as security trustee for and on behalf of the Finance
Parties, the “Security
Trustee”);
|
|
(13)
|
GE CORPORATE BANKING EUROPE SAS
(as administrative agent, the “Administrative
Agent”);
|
|
(14)
|
THE LENDERS (as defined
below); and
|
|
(15)
|
DEUTSCHE BANK AG, LONDON
BRANCH as L/C Bank (the “Original L/C
Bank”).
|
WHEREAS:
|
(1)
|
The
parties hereto have entered into a £3.775 billion senior facilities
agreement dated the Original Execution Date (as defined below) (the “Original
Agreement”).
|
|
(2)
|
Pursuant
to the terms of Clause 44 (Amendment Upon Structure
Notice) of the Original Agreement, each of the parties hereto
agreed to amend and restate the Original Agreement with the form of this
Agreement and with effect from the date on which the Company delivers the
Structure Notice to the Facility Agent in accordance with the terms of
Clause 44.1 (Delivery of Structure
Notice) of the Original
Agreement.
|
|
(3)
|
The
Facility Agent confirms that it has received a copy of the Structure
Notice and has delivered a copy of that Structure Notice to each of the
Finance Parties.
|
|
(4)
|
Accordingly,
the Original Agreement shall be amended and restated in the form of this
Agreement with effect from the date of such Structure
Notice.
|
|
1.1
|
Definitions
|
In this
Agreement the following terms have the meanings set out below.
“80% Security Test” means the
requirement that, save as otherwise provided in Clause 24.12 (Further Assurance), members
of the Bank Group generating not less than 80% of Consolidated Operating
Cashflow (excluding for the purposes of this calculation, any Consolidated Net
Income attributable to any Joint Venture) have acceded as Guarantors to this
Agreement (for the avoidance of doubt, other than in respect of the C Facility)
as tested by reference to each set of annual financial information relating to
the Bank Group delivered to the Facility Agent pursuant to Clause 22.1
(Financial Statements).
For the avoidance of doubt, members of the Telewest Group or the Baseball Group
which have granted guarantees and security in respect of any of the Facilities
shall continue to be treated as Guarantors for the purposes of this 80% Security
Test, notwithstanding any limitations contained in Clause 29 (Guarantee and
Indemnity).
“A Facility” means the term
loan facility granted to the UK Borrowers pursuant to Clause 2.1(a)(i)
(The
Facilities).
“A Facility Margin” means, in
relation to A Facility Advances, and subject to Clause 14.7 (Margin Ratchet for A Facility
Advances and A1 Facility Advances (and, Prior to the Occurrence of a Paydown
Event, A2 Facility Advances and A3 Facility Advances)), 1.875% per
annum.
“A Facility Outstandings”
means, at any time, the aggregate principal amount of the A Facility Advances
outstanding under this Agreement.
“A/A2 Facility Repayment
Instalment” shall have the meaning given to it in Clause 9.1(a) (Repayment of A Facility
Outstandings, A1 Facility Outstandings, A2 Facility Outstandings and A3 Facility
Outstandings) hereof.
“A1 Facility” means the term
loan facility granted to Baseball Cash Bidco pursuant to Clause 2.1(b)(i)
(The
Facilities).
“A1 Facility Margin” means, in
relation to A1 Facility Advances, and subject to Clause 14.7 (Margin Ratchet for A Facility
Advances and A1 Facility Advances (and, Prior to the Occurrence of a
Paydown Event, A2 Facility Advances and A3 Facility Advances)),
1.875% per annum.
“A1 Facility Outstandings”
means, at any time, the aggregate principal amount of the A1 Facility Advances
outstanding under this Agreement.
“A1/A3 Facility Repayment
Instalment” shall have the meaning given to it in Clause 9.1(b) (Repayment of A Facility
Outstandings, A1 Facility Outstandings, A2 Facility Outstandings and A3 Facility
Outstandings) hereof.
“A2 Facility” means the term
loan facility granted to the UK Borrowers pursuant to Clause 2.1(a)(ii)
(The
Facilities).
“A2 Facility Margin” means, in
relation to the A2 Facility Advances, (a) until the occurrence of a Paydown
Event, subject to Clause 14.7 (Margin Ratchet for A Facility
Advances and A1 Facility Advances (and, Prior to the Occurrence of a
Paydown Event, A2 Facility Advances and A3 Facility Advances)),
1.875% per annum, and (b) on the date of a Paydown Event and thereafter,
subject to Clause 14.8 (Margin Ratchet for A2 Facility
Advances and A3 Facility Advances on and after a Paydown Event),
3.125% per annum.
“A2 Facility Outstandings”
means, at any time, the aggregate principal amount of the A2 Facility Advances
outstanding under this Agreement.
“A3 Facility” means the term
loan facility granted to Baseball Cash Bidco pursuant to Clause 2.1(b)(ii)
(The
Facilities).
“A3 Facility Margin” means, in
relation to the A3 Facility Advances, (a) until the occurrence of a
Paydown Event, subject to Clause 14.7 (Margin Ratchet for A Facility
Advances and A1 Facility Advances (and, Prior to the Occurrence of a
Paydown Event, A2 Facility Advances and A3 Facility Advances)),
1.875% per annum, and (b) on the date of a Paydown Event and thereafter,
subject to Clause 14.8 (Margin Ratchet for A2 Facility
Advances and A3 Facility Advances on and after a Paydown Event),
3.125% per annum.
“A3 Facility Outstandings”
means, at any time, the aggregate principal amount of the A3 Facility
Advances outstanding under this Agreement.
“Acceding Borrower” means a
member of the Bank Group which has complied with the requirements of
Clause 26.1 (Acceding
Borrower).
“Acceding Group Company” means
an Acceding Borrower, an Acceding Guarantor or an Acceding Holding Company, as
the context may require.
“Acceding Guarantor” means any
member of the Bank Group which has complied with the requirements of
Clause 26.2 (Acceding
Guarantors).
“Acceding Holding Company”
means any person which becomes the Holding Company of the Ultimate Parent and
which has complied with the requirements of Clause 26.3 (Acceding Holding
Company).
“Acceding Obligors” means the
Acceding Borrowers and the Acceding Guarantors.
“Acceleration Date” means the
date on which a written notice has been served under Clause 27.17 (Acceleration).
“Acceptable Hedging Agreement”
means a Hedging Agreement entered into on the terms of the International Swaps
& Derivatives Association Inc. 1992 or 2002 Master Agreement
(Multicurrency-Cross Border) under which:
|
|
(a)
|
if
the 1992 Master Agreement is used, “Second Method” and “Market Quotation”
are specified as the payment method
applicable;
|
|
|
(b)
|
if
the 2002 Master Agreement is used, the relevant agreement provides for two
way payments; and
|
|
|
(c)
|
the
governing Law is English or New York
Law.
|
“Accession Notice” means a duly
completed notice of accession in the form of Part 1 of Schedule 7 (Form of Accession
Notice).
“Act” means the Companies Xxx
0000 (as amended).
“Additional Assets” means any
property, stock or other assets to be used by any member of the Bank Group in
the Group Business or any business whose primary operations are directly related
to the Group Business.
“Additional Facility” has the
meaning given to such term in Clause 2.9(a) (Additional
Facility).
“Additional Facility Accession
Agreement” means a deed in the form of Part 3 of Schedule 7.
“Additional Facility Availability
Period” means the period specified in the Additional Facility Accession
Agreement for an Additional Facility.
“Additional Facility Borrower”
means any Borrower which becomes a borrower under an Additional
Facility.
“Additional Facility Commencement
Date” has the meaning given to it in Clause 2.9(b) (Additional
Facility).
“Additional Facility Lender”
means a person which becomes a Lender under an Additional Facility pursuant to
Clause 2.9 (Additional
Facility).
“Additional Facility Margin”
means, in relation to an Additional Facility and subject to Clause 2.9(a)(v)
(Additional Facility),
the margin specified in and, if applicable, adjusted in accordance with the
relevant Additional Facility Accession Agreement.
“Additional Facility
Outstandings” means, at any time, the aggregate principal amount of the
Additional Facility Advances outstanding under this Agreement.
“Additional High Yield Notes”
means any high yield notes designated as “Additional High Yield Notes” by
written notice from the Company to the Facility Agent, and having a final
maturity (with no sinking fund payments) of no earlier than 15 April 2014,
to be issued by the Parent after 30 September 2008 pursuant to the
Additional High Yield Offering, 100% of the proceeds (after deducting all
reasonable fees, commissions, costs and expenses incurred by any member of the
Group in connection therewith) of which shall be applied in or towards repayment
of the Outstandings pursuant to Clause 12.5 (Repayment from Debt
Proceeds).
“Additional High Yield
Offering” means one or more offerings of the Additional High Yield Notes
on a registration statement filed with the SEC or pursuant to an exemption from
registration under the United States Securities Act of 1933, as amended,
including pursuant to Rule 144A and/or Regulation S under the United States
Securities Act of 1933, as amended.
“Advance” means:
|
|
(a)
|
when
designated “A
Facility”, the principal amount of each advance made or to be made
under the A Facility or arising in respect of the A Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(b)
|
when
designated “A1
Facility”, the principal amount of each advance made or to be made
under the A1 Facility or arising in respect of the A1 Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(c)
|
when
designated “A2
Facility”, the principal amount of each advance arising in respect
of the A2 Facility under Clause 2.3 (Roll of Effective
Date), under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(d)
|
when
designated “A3
Facility”, the principal amount of each advance arising in respect
of the A3 Facility under Clause 2.3 (Roll Effective Date),
under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(e)
|
when
designated “B1
Facility”, the principal amount of each advance made or to be made
under the B1 Facility or arising in respect of the B1 Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(f)
|
when
designated “B2
Facility”, the principal amount of each advance made or to be made
under the B2 Facility or arising in respect of the B2 Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(g)
|
when
designated “B3
Facility”, the principal amount of each advance made or to be made
under the B3 Facility or arising in respect of the B3 Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances); or
|
|
|
(h)
|
when
designated “B4
Facility”, the principal amount of each advance made or to be made
under the B4 Facility or arising in respect of the B4 Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances),
|
|
|
(i)
|
when
designated “B5
Facility”, the principal amount of each advance made or to be made
under the B5 Facility or arising in respect of the B5 Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances),
|
|
|
(j)
|
when
designated “B6
Facility”, the principal amount of each advance made or to be made
under the B6 Facility or arising in respect of the B6 Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances),
|
|
|
(k)
|
when
designated “B7
Facility”, the principal amount of each advance arising in respect
of the B7 Facility under Clause 2.3 (Roll Effective Date),
under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(l)
|
when
designated “B8
Facility”, the principal amount of each advance arising in respect
of the B8 Facility under Clause 2.3 (Roll Effective Date),
under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(m)
|
when
designated “B9
Facility”, the principal amount of each advance arising in respect
of the B9 Facility under Clause 2.3 (Roll Effective Date),
under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(n)
|
when
designated “B10
Facility”, the principal amount of each advance arising in respect
of the B10 Facility under Clause 2.3 (Roll Effective Date),
under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(o)
|
when
designated “B11
Facility”, the principal amount of each advance arising in respect
of the B11 Facility under Clause 2.3 (Roll Effective Date),
under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(p)
|
when
designated “B12
Facility”, the principal amount of each advance arising in respect
of the B12 Facility under Clause 2.3 (Roll Effective Date),
under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(q)
|
when
designated “C
Facility”, the principal amount of each advance made or to be made
under the C Facility or arising in respect of the C Facility under
Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances);
|
|
|
(r)
|
when
designated “RCF
Facility”, a Revolving Facility Advance or Secondary Revolving
Facility Advance;
|
|
|
(s)
|
when
designated “Revolving
Facility”, the principal amount of each advance made or to be made
under the Revolving Facility (but excluding for the purposes of this
definition, any utilisation of the Revolving Facility by way of Ancillary
Facility or Documentary Credit);
|
|
|
(t)
|
when
designated “Secondary
Revolving Facility”, the principal amount of each advance arising
in respect of the Secondary Revolving Facility under Clause 2.3
(Roll Effective
Date), (but excluding for the purposes of this definition, any
utilisation of the Secondary Revolving Facility by way of Ancillary
Facility or Documentary Credit);
|
|
|
(u)
|
when
designated “Additional
Facility”, the principal amount of each advance made or to be made
under an Additional Facility or arising in respect of an Additional
Facility under Clause 14.3 (Consolidation of Term Facility
Advances) or under Clause 14.4 (Division of Term Facility
Advances); or
|
|
|
(v)
|
without
any such designation, the “A Facility Advance”, the
“A1 Facility
Advance”, the “A2
Facility Advance”, the “A3 Facility Advance”,
the “Additional Facility
Advance”, the “B1
Facility Advance”, the “B2” Facility Advance”,
the “B3 Facility
Advance”, the “B4
Facility Advance”, the “B5 Facility Advance”,
the “B6 Facility
Advance”, the “B7
Facility Advance”, the “B8 Facility Advance”,
the “B9 Facility
Advance”, the “B10
Facility Advance”, the “B11 Facility Advance”,
the “B12 Facility
Advance”, the “C
Facility Advance”, the “RCF Facility Advance”,
the “Revolving Facility
Advance” and/or the “Secondary Revolving Facility
Advance”, as the context
requires,
|
in each
case as from time to time reduced by repayment or prepayment.
“Affiliate” means, in relation
to a person, any other person directly or indirectly controlling, controlled by
or under direct or indirect common control with that person, and for these
purposes “control” shall be construed so as to mean the ownership, either
directly or indirectly and legally or beneficially, of more than 50% of the
issued share capital of a company or the ability to control, either directly or
indirectly, the affairs or the composition of the board of directors (or
equivalent of it) of a company and “controlling”, “controlled by” and “under
common control with” shall be construed accordingly.
“Agents” means the Facility
Agent, the US Paying Agent and the Administrative Agent, and “Agent” means either of
them.
“Agreed Business Plan” means
the business plan, financial model and analysis of the future funding
requirements of the Company and the Bank Group prepared by the Company and
delivered to the Mandated Lead Arrangers, in the agreed form, prior to the
Original Execution Date.
“Alternative Baseball
Acquisition” means the acquisition (other than pursuant to the Baseball
Scheme) by any member of the Bank Group of not less than 71% of the total issued
share capital of Baseball which is funded by Alternative Baseball Financing or
by Guaranteed Parent Debt.
“Alternative Baseball
Financing” means, following the cancellation of the A1 Facility
Commitments, and the B1 Facility Commitments, an amount of up to £500 million
raised by way of the introduction of one or more tranches under this Agreement,
and having a final maturity date which falls no earlier than the Final Maturity
Date for the A Facility, for the purposes of (i) paying the cash
consideration of an Alternative Baseball Acquisition, (ii) refinancing the
Existing Baseball Facilities and (iii) paying the fees, costs and expenses
payable by or on behalf of the Bank Group in connection with the Alternative
Baseball Acquisition.
“Alternative Bridge Facility”
means the alternative bridge facility made available pursuant to the Alternative
Bridge Facility Agreement, the proceeds of which are on-lent to the Company and
following a series of transactions as more particularly described in the Steps
Paper, applied for the purposes of repaying in part, amounts outstanding under
the Bridge Facility.
“Alternative Bridge Facility
Agreement” means the senior subordinated bridge facility agreement to be
entered into prior to the Structuring Date between, among others, the Parent and
the Mandated Lead Arrangers (as defined therein) relating to the Alternative
Bridge Facility or any agreement entered into pursuant thereto and in accordance
with the terms thereof for the purposes of extending the term of such facilities
beyond one year (including, in each case, any Exchange Notes).
“Amortisation Repayment Date”
has the meaning given to such term in Clause 9.1 (Repayment of A Facility
Outstandings, A1 Facility Outstandings, A2 Facility Outstandings and A3 Facility
Outstandings).
“Ancillary Facility” means
any:
|
|
(a)
|
overdraft,
automated payment, cheque drawing or other current account
facility;
|
|
|
(b)
|
forward
foreign exchange facility;
|
|
|
(c)
|
derivatives
facility;
|
|
|
(d)
|
guarantee,
bond issuance, documentary or stand-by letter of credit
facility;
|
|
|
(e)
|
performance
bond facility; and/or
|
|
|
(f)
|
such
other facility or financial accommodation as may be required in connection
with the Group Business and which is agreed in writing between the
relevant UK Borrowers and the relevant Ancillary Facility
Lender.
|
“Ancillary Facility Commitment”
means, in relation to an Ancillary Facility Lender at any time, and save as
otherwise provided in this Agreement, the maximum Sterling Amount to be made
available under an Ancillary Facility granted by it, to the extent not cancelled
or reduced or transferred pursuant to the terms of such Ancillary Facility or
under this Agreement.
“Ancillary Facility Documents”
means the documents and other instruments pursuant to which an Ancillary
Facility is made available and the Ancillary Facility Outstandings under it are
evidenced.
“Ancillary Facility Lender”
means any Lender which has notified the Facility Agent that it has agreed to its
nomination in a Conversion Notice to be an Ancillary Facility Lender in respect
of an Ancillary Facility granted pursuant to the terms of this
Agreement.
“Ancillary Facility
Outstandings” means (without double counting), at any time with respect
to an Ancillary Facility Lender and each Ancillary Facility provided by it, the
aggregate of:
|
|
(a)
|
all
amounts of principal then outstanding under any overdraft, automated
payment, cheque drawing or other current account facility (determined in
accordance with the applicable terms) as at such time;
and
|
|
|
(b)
|
in
respect of any other facility or financial accommodation, such other
amount as fairly represents the aggregate potential exposure of that
Ancillary Facility Lender with respect to it under its Ancillary Facility,
as reasonably determined by that Ancillary Facility Lender from time to
time in accordance with its usual banking practices for facilities or
accommodation of the relevant type (including without limitation, the
calculation of exposure under any derivatives facility by reference to the
xxxx-to-market valuation of such transaction at the relevant
time).
|
“Ancillary Facility Termination
Date” has the meaning given to such term in paragraph (h) of
Clause 6.1 (Utilisation
of Ancillary Facilities).
“Anti-Terrorism Laws”
mean:
|
|
(a)
|
Executive
Order No. 13224 of September 23, 2001 - Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten To Commit, or Support
Terrorism (the “Executive
Order”);
|
|
|
(b)
|
the
Uniting and Strengthening of America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law
107-56 (commonly known as the USA Patriot Act);
and
|
(c) the
Money Laundering Control Act of 1986, Public Law 99-570.
“Applicable Margin” means, at
any time, the prevailing A Facility Margin, A1 Facility Margin, A2 Facility
Margin, A3 Facility Margin, Additional Facility Margin, B1 Facility Margin, B2
Facility Margin, B3 Facility Margin, B4 Facility Margin, B5 Facility Margin, B6
Facility Margin, B7 Facility Margin, B8 Facility Margin, B9 Facility Margin, B10
Facility Margin, B11 Facility Margin, B12 Facility Margin, C Facility Margin,
Revolving Facility Margin or Secondary Revolving Facility Margin, as the context
may require at the relevant time.
“Arrangers” means the Mandated
Lead Arrangers and “Arranger” means any of
them.
“Asset Passthrough” means a
series of transactions between a Bank Holdco, one or more members of the Bank
Group and an Asset Transferring Party where:
|
|
(a)
|
in
the case of an asset being transferred by a Bank Holdco to the Asset
Transferring Party that asset:
|
|
|
(i)
|
is
first transferred by such Bank Holdco to a member of the Bank Group;
and
|
|
|
(ii)
|
may
then be transferred between various members of the Bank Group, and is
finally transferred (insofar as such transaction relates to the Bank
Group) to an Asset Transferring Party;
or
|
|
|
(b)
|
in
the case of an asset being transferred by an Asset Transferring Party to a
Bank Holdco, that asset:
|
|
|
(i)
|
is
first transferred by that Asset Transferring Party to a member of the Bank
Group; and
|
|
|
(ii)
|
may
then be transferred between various members of the Bank Group, and is
finally transferred (insofar as such transaction relates to the Bank
Group) to such Bank Holdco,
|
and where
the purpose of each such asset transfer is, in the case of an Asset Passthrough
of the type described in paragraph (a), to enable a Bank Holdco to
indirectly transfer assets (other than cash) to that Asset Transferring Party
and, in the case of an Asset Passthrough of the type described in
paragraph (b), is to enable an Asset Transferring Party to indirectly
transfer assets (other than cash) to a Bank Holdco, in either case, by way of
transfers of those assets to and from (and, if necessary, between) one or more
members of the Bank Group in such a manner as to be neutral to the Bank Group
taken as a whole provided
that:
|
|
(w)
|
the
consideration payable (if any) by the first member of the Bank Group to
acquire such assets comprises either (i) cash funded or to be funded
directly or indirectly by a payment from (in the case of an Asset
Passthrough of the type described in paragraph (a)) the Asset
Transferring Party and (in the case of an Asset Passthrough of the type
described in paragraph (b)) a Bank Holdco, in either case, in
connection with that series of transactions or (ii) Subordinated Funding
or (iii) the issue of one or more
securities;
|
|
|
(x)
|
the
consideration payable by (in the case of an Asset Passthrough of the type
described in paragraph (a)) the Asset Transferring Party is equal to
the consideration received or receivable by a Bank Holdco and (in the case
of an Asset Passthrough of the type described in paragraph (b)) by a
Bank Holdco is equal to the consideration received or receivable by the
Asset Transferring Party (and for this purpose, a security issued by one
company shall constitute equal consideration to a security issued by
another company where such securities have been issued on substantially
the same terms and subject to the same
conditions);
|
|
|
(y)
|
all
of the transactions comprising such a series of transactions (from and
including the transfer of the assets by a Bank Holdco to and including the
acquisition of those assets by the Asset Transferring Party or vice versa)
are completed within two Business Days;
and
|
|
|
(z)
|
upon
completion of all of the transactions comprising such a series of
transactions, no person (other than another member of the Bank Group) has
any recourse to any member of the Bank Group and no member of the Bank
Group which is not an Obligor may have any recourse to an Obligor, in each
case in relation to such a series of transactions (other than in respect
of (i) the Subordinated Funding or any rights and obligations under the
securities, in each case, mentioned in paragraph (w) above and (ii)
covenants as to title provided, in the case of an Asset Passthrough of the
type described in paragraph (a), in favour of the Asset Transferring
Party on the same terms as such covenants were provided by the Bank Holdco
in respect of the relevant assets and, in the case of an Asset Passthrough
of the type described in paragraph (b), in favour of the Bank Holdco
on the same terms as such covenants were provided by the Asset
Transferring Party in respect of the relevant
assets).
|
“Asset Securitisation
Subsidiary” means any Subsidiary engaged solely in the business of
effecting or facilitating any asset securitisation programme or programmes or
one or more receivables factoring transactions.
“Asset Transferring Party”
means the member of the Group (or any person in which a member of the Bank Group
owns an interest but which is not a member of the Group), other than a member of
the Bank Group (except where the asset being transferred is a security where
such member of the Group may be a member of the Bank Group), who is the initial
transferor or final transferee in respect of a transfer to or from a Bank
Holdco, as the case may be, through one or more members of the Bank
Group.
“Associated Costs Rate” means,
in relation to any Advance or Unpaid Sum, the rate determined in accordance with
Schedule 6 (Associated Costs
Rate).
“Authorisation” means an
authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
“Available A Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its A Facility Commitment at such time
less the Sterling Amount of its share of the A Facility Advances made under this
Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any A Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
A Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available A1 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its A1 Facility Commitment at such time
less the Sterling Amount of its share of the A1 Facility Advances made under
this Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any A1 Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
A1 Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available A2 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its A2 Facility Commitment at such time
less the Sterling Amount of its share of the A2 Facility Advances under this
Agreement, adjusted to take account of any cancellation or reduction of, or any
transfer by such Lender or any transfer to it of, any A2 Facility Commitment, in
each case, pursuant to the terms of this Agreement, provided always that such
amount shall not be less than zero.
“Available A3 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its A3 Facility Commitment at such time
less the Sterling Amount of its share of the A3 Facility Advances under this
Agreement, adjusted to take account of any cancellation or reduction of, or any
transfer by such Lender or any transfer to it of, any A3 Facility Commitment, in
each case, pursuant to the terms of this Agreement, provided always that such
amount shall not be less than zero.
“Available Additional Facility
Commitment” means, in relation to a Lender and an Additional Facility, at
any time and save as otherwise provided in this Agreement, its Additional
Facility Commitment in relation to that Additional Facility at such time less
the Sterling Amount of its share of the Additional Facility Advances made under
that Additional Facility, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any Additional Facility Commitment in relation to that
Additional Facility, in each case, pursuant to the terms of this
Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance under an Additional Facility, the
Sterling Amount of its share of such Additional Facility Advance which,
pursuant to any other Utilisation Request is to be made on or before the
proposed Utilisation Date,
|
provided
always that such amount shall not be less than zero.
“Available Ancillary Facility
Commitment” means, in relation to an Ancillary Facility Lender and an
Ancillary Facility granted by it at any time, and save as otherwise provided in
this Agreement or in the applicable Ancillary Facility Documents, its Ancillary
Facility Commitment at such time, less the Sterling Amount of the relevant
Ancillary Facility Outstandings at such time, provided always that such amount
shall not be less than zero.
“Available B1 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B1 Facility Commitment at such time
less the Sterling Amount of its share of the B1 Facility Advances made under
this Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any B1 Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
B1 Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available B2 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B2 Facility Commitment at such time
less the Sterling Amount of its share of the B2 Facility Advances made under
this Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any B2 Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
B2 Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available B3 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B3 Facility Commitment at such time
less the Sterling Amount of its share of the B3 Facility Advances made under
this Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any B3 Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
B3 Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available B4 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B4 Facility Commitment at such time
less the Sterling Amount of its share of the B4 Facility Advances made under
this Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any B4 Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
B4 Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available B5 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B5 Facility Commitment at such time
less the Sterling Amount of its share of the B5 Facility Advances made under
this Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any B5 Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
B5 Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available B6 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B6 Facility Commitment at such time
less the Sterling Amount of its share of the B6 Facility Advances made under
this Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any B6 Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
B6 Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available B7 Facility Commitment”
means, in relation to a Lender, at any time and save as otherwise
provided in this Agreement, its B7 Facility Commitment at such time less the
Sterling Amount of its share of the B7 Facility Advances under this Agreement,
adjusted to take account of any cancellation or reduction of, or any transfer by
such Lender or any transfer to it of, any B7 Facility Commitment, in each case,
pursuant to the terms of this Agreement, provided always that such amount shall
not be less than zero.
“Available B8 Facility Commitment”
means, in relation to a Lender, at any time and save as otherwise
provided in this Agreement, its B8 Facility Commitment at such time less the
Sterling Amount of its share of the B8 Facility Advances under this Agreement,
adjusted to take account of any cancellation or reduction of, or any transfer by
such Lender or any transfer to it of, any B8 Facility Commitment, in each case,
pursuant to the terms of this Agreement, provided always that such amount shall
not be less than zero.
“Available B9 Facility Commitment”
means, in relation to a Lender, at any time and save as otherwise
provided in this Agreement, its B9 Facility Commitment at such time less the
Sterling Amount of its share of the B9 Facility Advances under this Agreement,
adjusted to take account of any cancellation or reduction of, or any transfer by
such Lender or any transfer to it of, any B9 Facility Commitment, in each case,
pursuant to the terms of this Agreement, provided always that such amount shall
not be less than zero.
“Available B10 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B10 Facility Commitment at such time
less the Sterling Amount of its share of the B10 Facility Advances under this
Agreement, adjusted to take account of any cancellation or reduction of, or any
transfer by such Lender or any transfer to it of, any B10 Facility Commitment,
in each case, pursuant to the terms of this Agreement, provided always that such
amount shall not be less than zero.
“Available B11 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B11 Facility Commitment at such time
less the Sterling Amount of its share of the B11 Facility Advances under this
Agreement, adjusted to take account of any cancellation or reduction of, or any
transfer by such Lender or any transfer to it of, any B11 Facility Commitment,
in each case, pursuant to the terms of this Agreement, provided always that such
amount shall not be less than zero.
“Available B12 Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its B12 Facility Commitment at such time
less the Sterling Amount of its share of the B12 Facility Advances under this
Agreement, adjusted to take account of any cancellation or reduction of, or any
transfer by such Lender or any transfer to it of, any B12 Facility Commitment,
in each case, pursuant to the terms of this Agreement, provided always that such
amount shall not be less than zero.
“Available C Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its C Facility Commitment at such time
less the Sterling Amount of its share of the C Facility Advances made under this
Agreement, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any C Facility Commitment, in each case, pursuant to
the terms of this Agreement; and
|
|
|
(b)
|
in
the case of any proposed Advance, the Sterling Amount of its share of such
C Facility Advance which, pursuant to any other Utilisation Request is to
be made on or before the proposed Utilisation
Date,
|
|
|
provided
always that such amount shall not be less than
zero.
|
“Available Commitment” means,
in relation to a Lender, the aggregate amount of its Available A
Facility Commitments, its Available A1 Facility Commitments, its Available A2
Facility Commitments, its Available A3 Facility Commitments, its Available
Additional Facility Commitments, its Available B1 Facility Commitments, its
Available B2 Facility Commitments, its Available B3 Facility Commitments, its
Available B4 Facility Commitments, its Available B5 Facility Commitments, its
Available B6 Facility Commitments, its Available B7 Facility Commitments, its
Available B8 Facility Commitments, its Available B9 Facility Commitments, its
Available B10 Facility Commitments, its Available B11 Facility Commitments, its
Available B12 Facility Commitments, its Available C Facility Commitments, its
Available Revolving Facility Commitment, its Available Secondary Revolving
Facility Commitments, its Available RCF Facility Commitments and its Available
Ancillary Facility Commitments, or, in the context of a particular Facility, its
Available A Facility Commitment, its Available A1 Facility Commitments, its
Available A2 Facility Commitments, its Available A3 Facility Commitments, its
Available Additional Facility Commitments, its Available B1 Facility
Commitments, its Available B2 Facility Commitments, its Available B3 Facility
Commitments, its Available B4 Facility Commitments, its Available B5 Facility
Commitments, its Available B6 Facility Commitments, its Available B7 Facility
Commitments, its Available B8 Facility Commitments, its Available B9 Facility
Commitments, its Available B10 Facility Commitments, its Available B11 Facility
Commitments, its Available B12 Facility Commitments, its Available C Facility
Commitments, its Available Revolving Facility Commitments, its Available
Secondary Revolving Facility Commitments, its Available RCF Facility
Commitments, or its Available Ancillary Facility Commitments, as the context may
require.
“Available Facility” means, in
relation to a Facility, at any time, the aggregate amount of the Available
Commitments in respect of that Facility at that time.
“Available RCF Facility” means
the Available Revolving Facility and Available Secondary Revolving
Facility.
“Available RCF Facility
Commitment” means, in relation to a Lender, at any time, its Available
Revolving Facility Commitment and Available Secondary Revolving Facility
Commitment.
“Available Revolving Facility”
means, at any time, the aggregate amount of the Available Revolving Facility
Commitments.
“Available Revolving Facility
Commitment” means, in relation to a Lender, at any time and save as
otherwise provided in this Agreement, its Revolving Facility Commitment at such
time, less the Sterling Amount of its share of the Revolving Facility
Outstandings, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any Revolving Facility Commitment, in each case,
pursuant to the terms of this Agreement;
and
|
|
|
(b)
|
in
the case of any proposed Utilisation, the Sterling Amount of its share of
(i) such Revolving Facility Advance and/or Documentary Credit which
pursuant to any other Utilisation Request is to be made, or as the case
may be, issued, and (ii) any Revolving Facility Advance and/or Documentary
Credit which is due to be repaid or expire (as the case may be), in each
case, on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“Available Secondary Revolving
Facility” means, at any time, the aggregate amount of the Available
Secondary Revolving Facility Commitments.
“Available Secondary Revolving
Facility Commitment” means, in relation to a Lender, at any time and save
as otherwise provided in this Agreement, its Secondary Revolving Facility
Commitment at such time, less the Sterling Amount of its share of the Secondary
Revolving Facility Outstandings, adjusted to take account of:
|
|
(a)
|
any
cancellation or reduction of, or any transfer by such Lender or any
transfer to it of, any Secondary Revolving Facility Commitment, in each
case, pursuant to the terms of this Agreement;
and
|
|
|
(b)
|
in
the case of any proposed Utilisation, the Sterling Amount of its share of
(i) such Secondary Revolving Facility Advance and/or Documentary Credit
which pursuant to any other Utilisation Request is to be made, or as the
case may be, issued, and (ii) any Secondary Revolving Facility Advance
and/or Documentary Credit which is due to be repaid or expire (as the case
may be), in each case, on or before the proposed Utilisation
Date,
|
provided
always that such amount shall not be less than zero.
“B1 Facility” means the term
loan facility granted to Baseball Cash Bidco pursuant to Clause 2.1(c)(i)
(The
Facilities).
“B1 Facility Margin” means, in
relation to the B1 Facility Advances, 2.125% per annum.
“B1 Facility Outstandings”
means, at any time, the aggregate principal amount of the B1 Facility Advances
outstanding under this Agreement.
“B2 Facility” means the term
loan facility granted to the Company pursuant to Clause 2.1(d)(i) (The Facilities).
“B2 Facility Margin” means, in
relation to the B2 Facility Advances, 2.125% per annum.
“B2 Facility Outstandings”
means, at any time, the aggregate principal amount of the B2 Facility Advances
outstanding under this Agreement.
“B3 Facility” means the term
loan facility granted to the Company pursuant to Clause 2.1(e)(i) (The Facilities).
“B3 Facility Margin” means, in
relation to the B3 Facility Advances, 2.00% per annum.
“B3 Facility Outstandings”
means, at any time, the aggregate principal amount of the B3 Facility Advances
outstanding under this Agreement.
“B4 Facility” means the term
loan facility granted to the Company pursuant to Clause 2.1(f)(i) (The Facilities) and novated
to the US Borrower pursuant to the provisions of Clause 2.2 (Novation of B4
Facility).
“B4 Facility Margin” means, in
relation to the B4 Facility Advances, 2.00% per annum.
“B4 Facility Outstandings”
means, at any time, the aggregate principal amount of the B4 Facility Advances
outstanding under this Agreement.
“B5 Facility” means the term
loan facility granted to the Company pursuant to Clause 2.1(g)(i) (The Facilities).
“B5 Facility Margin” means, in
relation to the B5 Facility Advances, 2.125% per annum.
“B5 Facility Outstandings”
means, at any time, the aggregate principal amount of the B5 Facility Advances
outstanding under this Agreement.
“B6 Facility” means the term
loan facility granted to VMIH Sub pursuant to Clause 2.1(h)(i) (The Facilities).
“B6 Facility Margin” means, in
relation to the B6 Facility Advances, 2.125% per annum.
“B6 Facility Outstandings”
means, at any time the aggregate principal amount of the B6 Facility Advances
outstanding under this Agreement.
“B7 Facility” means the term
loan facility granted to Baseball Cash Bidco pursuant to Clause 2.1(c)(ii)
(The
Facilities).
“B7 Facility Margin” means, in
relation to the B7 Facility Advances, 3.625% per annum.
“B7 Facility Outstandings”
means, at any time, the aggregate principal amount of the B7 Facility Advances
outstanding under this Agreement.
“B8 Facility” means the term
loan facility granted to the Company pursuant to Clause 2.1(d)(ii) (The Facilities).
“B8 Facility Margin” means, in
relation to the B8 Facility Advances, 3.625% per annum.
“B8 Facility Outstandings”
means, at any time, the aggregate principal amount of the B8 Facility Advances
outstanding under this Agreement.
“B9 Facility” means the term
loan facility granted to the Company pursuant to Clause 2.1(e)(ii) (The Facilities).
“B9 Facility Margin” means, in
relation to the B9 Facility Advances, 3.50% per annum.
“B9 Facility Outstandings”
means, at any time, the aggregate principal amount of the B9 Facility Advances
outstanding under this Agreement.
“B10 Facility” means the term
loan facility granted to the US Borrower pursuant to Clause 2.1(f)(ii)
(The
Facilities).
“B10 Facility Margin” means, in
relation to the B10 Facility Advances, 3.50% per annum.
“B10 Facility Outstandings”
means, at any time the aggregate principal amount of the B10 Facility Advances
outstanding under this Agreement.
“B11 Facility” means the term
loan facility granted to the Company pursuant to Clause 2.1(g)(ii) (The Facilities).
“B11 Facility Margin” means, in
relation to the B11 Facility Advances, 3.625% per annum.
“B11 Facility Outstandings”
means, at any time, the aggregate principal amount of the B11 Facility Advances
outstanding under this Agreement.
“B12 Facility” means the term
loan facility granted to VMIH Sub pursuant to Clause 2.1(h)(ii) (The Facilities).
“B12 Facility Margin” means, in
relation to the B12 Facility Advances, 3.625% per annum.
“B12 Facility Outstandings”
means, at any time the aggregate principal amount of the B12 Facility Advances
outstanding under this Agreement.
“Bank Group”
means:
|
|
(a)
|
for
the purposes of the definition of “Bank Group Consolidated Revenues”,
Clause 22.1 (Financial Statements),
Clause 22.3 (Budget) and
Clause 23 (Financial Condition)
and any other provisions of this Agreement using the terms defined in
Clause 23 (Financial
Condition):
|
|
|
(i)
|
the
Company and prior to the Structuring Date,
TCN;
|
|
|
(ii)
|
NTL
South Herts, for so long as a member of the Bank Group is the general
partner of South Hertfordshire United Kingdom Fund, Ltd or if it becomes a
wholly-owned Subsidiary of the
Company;
|
|
|
(iii)
|
Fawnspring
Limited, for so long as it is a Subsidiary of the
Company;
|
|
|
(iv)
|
each
of the Company’s and prior to the Structuring Date, TCN’s, other direct
and indirect Subsidiaries from time to time, excluding the Bank Group
Excluded Subsidiaries; and
|
|
|
(v)
|
without
prejudice to sub-paragraph (iv) above, each of the direct and
indirect Subsidiaries from time to time of Virgin Media Communications
Limited (formerly known as NTL Communications Limited), excluding any
Subsidiary thereof which has a direct or indirect interest in the Company
or, prior to the Structuring Date,
TCN;
|
|
|
(b)
|
for
all other purposes:
|
|
|
(i)
|
the
Company and prior to the Structuring Date, TCN, and each of their
respective direct and indirect Subsidiaries from time to time, other than
the Bank Group Excluded Subsidiaries;
and
|
|
|
(ii)
|
each
of the direct and indirect Subsidiaries from time to time of Virgin Media
Communications Limited (formerly known as NTL Communications Limited) to
the extent not already included by virtue of sub-paragraph (i) above,
and excluding, any Subsidiary thereof which has a direct or indirect
interest in the Company or, prior to the Structuring Date,
TCN,
|
but
excluding for all purposes under paragraphs (a) and (b) above:
(i) any
Permitted Joint Ventures; and
|
|
(ii)
|
the
Baseball Group, if the Baseball Acquisition is funded by a Stand Alone
Baseball Financing.
|
For
information purposes only, the members of the Bank Group as at the Original
Execution Date for the purposes of paragraph (b) are listed in Part 1 of
Schedule 9 (Members of the
Bank Group).
“Bank Group Cash Flow” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Bank Group Consolidated
Revenues” means, in respect of any period, the consolidated revenues for
the Bank Group for that period as evidenced by the financial information
provided in respect of that period pursuant to Clause 22.1 (Financial
Statements).
“Bank Group Excluded
Subsidiary” means:
|
|
(a)
|
any
Subsidiary of the UK Borrowers or Virgin Media Communications Limited
(formerly known as NTL Communications Limited) which is a Dormant
Subsidiary and which (i) has assets (save for loans existing on the
Original Execution Date owed to it by other members of the Bank Group)
with an aggregate value of £10,000 or less; and (ii) is not a
Guarantor;
|
|
|
(b)
|
Telewest
Finance Corporation;
|
|
|
(c)
|
Flextech
Interactive Limited;
|
|
|
(d)
|
Fawnspring
Limited;
|
|
|
(e)
|
NTL
South Herts and its Subsidiaries, until such time as NTL South Herts
becomes a wholly-owned Subsidiary of the
Company;
|
|
|
(f)
|
any
Subsidiary of the UK Borrowers or Virgin Media Communications Limited
(formerly known as NTL Communications Limited) which is a Project
Company;
|
|
|
(g)
|
any
Asset Securitisation Subsidiary;
and
|
|
|
(h)
|
any
company which becomes a Subsidiary of the Parent or Virgin Media
Communications Limited (formerly known as NTL Communications Limited) in
each case, after the Original Execution Date pursuant to an Asset
Passthrough,
|
provided that any Bank Group
Excluded Subsidiary may, at the election of the Parent and upon not less than 10
Business Days’ prior written notice to the Facility Agent, cease to be a Bank
Group Excluded Subsidiary and become a member of the Bank Group.
“Bank Holdco” means a direct
Holding Company of a member of the Bank Group which is not a member of the Bank
Group.
“Barclays Intercreditor
Agreement” has the meaning given to such term in the Group Intercreditor
Agreement.
“Baseball” means Virgin Mobile
Holdings (UK) Limited, incorporated in England & Wales with registered
number 3741555 and having its registered offices at 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxx X0X 0XX.
“Baseball Acquisition” means
the proposed acquisition by the Baseball Bidcos of the entire issued and to be
issued share capital of Baseball by way of a scheme of arrangement under
Section 425 of the Act with Baseball’s shareholders.
“Baseball Bidcos” means
Baseball Cash Bidco and Baseball Stock Bidco.
“Baseball Cash Bidco” means
Virgin Media Investment Holdings Limited (formerly known as NTL Investment
Holdings Limited), a company incorporated in England & Wales with registered
number 3173552 and having its registered office at 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxx X0X 0XX.
“Baseball Certain Funds Period”
means, in relation to the A1 Facility and the B1 Facility, the period commencing
on the Original Execution Date and ending on the earlier of (a) the date on
which the Baseball Scheme proposal fails or is withdrawn, (b) 30 September
2006 or (c) the date which is 30 days after the Baseball Effective
Date.
“Baseball Clean-Up Period”
means the period commencing on the Baseball Effective Date and ending on the
date falling 4 months and 2 weeks thereafter.
“Baseball Drawstop Default”
means an Event of Default arising under any of the following provisions, in each
case, with respect to Baseball Cash Bidco only:
(a) Clause 27.1
(Non-Payment);
|
|
(b)
|
Clause 27.2
(Covenants) by
virtue of a breach of the covenants under Clause 25.2 (Negative Pledge) (in a
manner which could reasonably be expected to have a material adverse
effect on the Security (taken as a whole)) or paragraphs (a), (b),
(c), (d), (g), (h) and (j) of Clause 24.22 (Baseball Scheme
Undertakings);
|
|
|
(c)
|
Clause 27.4
(Misrepresentation) by
virtue of a breach of any of the representations and warranties in
Clauses 21.2 (Due
Organisation) only as regards to the provisions of this Agreement
that relate to the A1 Facility and the B1 Facility, but not otherwise;
or
|
|
|
(d)
|
Clause 27.6
(Insolvency),
Clause 27.7 (Winding-Up),
Clause 27.8 (Execution and Distress)
or Clause 27.9 (Similar Events) other
than any such event which is caused by the occurrence or potential
occurrence of another Event of
Default.
|
“Baseball Effective Date” means
the date on which the Court Order is filed with the Registrar of Companies
pursuant to Section 425 of the Act.
“Baseball Group” means Baseball and each
of its Subsidiaries from time to time.
“Baseball Implementation
Agreement” means the agreement to be entered into between Virgin Media
Holdings Inc. (formerly known as NTL Holdings Inc.), the Baseball Bidcos and
Baseball in respect of the Baseball Scheme (in the form agreed with the
Bookrunners on or before the Original Execution Date).
“Baseball Instructing Group”
means:
|
|
(a)
|
in
relation to the A1 Facility and B1
Facility:
|
|
|
(i)
|
before
any Utilisation of the A1 Facility and the B1 Facility under this
Agreement, a Baseball Lender or group of Baseball Lenders whose
Available A1 Facility Commitments and Available B1 Facility Commitments
(as applicable) amount in aggregate to more than 66⅔% of the Available A1
Facility Commitments and Available B1 Facility Commitments (taken
together); and
|
|
|
(ii)
|
thereafter,
a Baseball Lender or group of Baseball Lenders to whom in aggregate more
than 66⅔% of the A1 Facility Outstandings and B1 Facility Outstandings
(taken together) are (or if there are no A1 Facility Outstandings or B1
Facility Outstandings at such time, immediately prior to their repayment,
were then) owed; or
|
|
|
(b)
|
in
relation to any Alternative Baseball
Financing:
|
|
|
(i)
|
before
any Utilisation of the Alternative Baseball Financing, a Baseball Lender
or group of Baseball Lenders whose commitments in respect of such
Alternative Baseball Financing amount in aggregate to more than 66⅔% of
the total commitments under such Alternative Baseball Financing;
or
|
|
|
(ii)
|
thereafter,
a Baseball Lender or group of Baseball Lenders to whom in aggregate more
than 66⅔% of the outstandings under the Alternative Baseball Financing are
(or if there are no outstandings under the Alternative Baseball Financing
prior to such repayment, were then)
owed,
|
in each
case, calculated in accordance with the provisions of Clause 43.9 (Calculation of
Consents).
“Baseball Lender”
means:
(a) in
relation to the A1 Facility and B1 Facility, any Lender which:
|
|
(i)
|
is
named in Part 1 of Schedule 1 (Lenders and
Commitments) as a Lender in respect of the A1 Facility and/or B1
Facility; or
|
|
|
(ii)
|
has
become a party to this Agreement in accordance with the provisions of
Clause 37 (Assignments and
Transfers) as a Lender in respect of the A1 Facility and/or B1
Facility; or
|
|
|
(b)
|
in
relation to an Alternative Baseball Financing, any Lender which has
provided the Company and/or Baseball Cash Bidco, with a commitment to
provide some or all of the Alternative Baseball Financing, whether
pursuant to a duly executed commitment letter, this Agreement or
otherwise,
|
which in
each case has not ceased to be a party to this Agreement in accordance with the
terms of this Agreement.
“Baseball Press Release” means
the announcement (in the form agreed with the Bookrunners on or before the
Original Execution Date) in accordance with Rule 2.5 of the Takeover Code in
respect of the Baseball Scheme by the Baseball Bidcos of all of the issued and
to be issued Baseball Shares not already owned by the Baseball
Bidcos.
“Baseball Resolutions” means
the resolutions passed at each of the board meetings and the extraordinary
general meeting of the Shareholders of Baseball.
“Baseball Scheme” means the
scheme of arrangement under Section 425 of the Act to be proposed by Baseball to
its shareholders, details of which are set out in the Baseball Scheme Circular
and which are consistent with the terms of the Baseball Press
Release.
“Baseball Scheme Circular”
means the circular to the shareholders of Baseball setting out the proposals for
the Baseball Scheme pursuant to which the Baseball Bidcos will acquire all of
the issued and to be issued Baseball Shares not already owned by the Baseball
Bidcos.
“Baseball Scheme Document”
means each of the following:
(a) the
Baseball Press Release;
|
|
(b)
|
the
Baseball Resolutions;
|
(c) the
Baseball Implementation Agreement; and
(d) the
Baseball Scheme Circular,
and
together the “Baseball Scheme
Documents”.
“Baseball Shares”
means the ordinary shares of Baseball issued as at the Original
Execution Date together with any shares to be issued by Baseball prior to the
Baseball Effective Date.
“Baseball Stock Bidco” means
Virgin Media (UK) Group, Inc. (formerly known as NTL (UK) Group, Inc.), a
company incorporated in the State of Delaware, United States of America,
registered as a foreign company under the Act with registered number FC018124
and having its registered office at 0 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0X, Xxxxx,
Xxxxxxxx 00000, Xxxxxx Xxxxxx of America.
“BBA LIBOR” means in relation
to LIBOR, the British Bankers Association Interest Settlement Rate for the
relevant currency and Interest Period displayed on the appropriate page of the
Telerate screen. If the agreed page is replaced or service ceases to
be available, the Facility Agent may specify another page or service displaying
the appropriate rate after consultation with the Company and the
Lenders.
“BBC Guarantees” means the
guarantees required to be given by the Borrowers in favour of BBC Worldwide
Limited pursuant to the shareholder agreements relating to the UKTV Joint
Ventures.
“Beneficiary” means a
beneficiary in respect of a Documentary Credit.
“Blocked Account” means each
interest bearing account maintained with the Facility Agent (or such other bank
as the Facility Agent and the Company may jointly determine) in the name of an
Obligor for the purposes of Clauses 12.3 (Blocked Accounts) or 12.8
(Trapped Cash) which is
secured in favour of the Security Trustee pursuant to the Security Documents, or
as otherwise required by the terms of this Agreement.
“Borrowers” means the UK
Borrowers, the US Borrower and any Acceding Borrower.
“Break Costs” means the amount
(if any) by which:
|
|
(a)
|
the
interest (excluding the Applicable Margin and Associated Costs Rate) which
a Lender should have received for the period from the date of receipt of
all or any part of its participation in an Advance or Unpaid Sum to the
last day of the current Interest Period or Term in respect of that Advance
or Unpaid Sum, had the amount so received been paid on the last day of
that Interest Period or Term;
|
exceeds:
|
|
(b)
|
the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount of such Advance or Unpaid Sum received or
recovered by it on deposit with a leading bank in the Relevant Interbank
Market for a period starting on the Business Day following such receipt or
recovery and ending on the last day of the current Interest Period or
Term.
|
“Bridge Facility” means the
£1,800,000,000 bridge facility, the proceeds of which will be applied to fund
the Ultimate Parent’s deposit with the Exchange Agent (as defined in the Merger
Agreement) for the benefit of the Ultimate Parent’s shareholders, cash in an
amount equal to Redemption Consideration as required under the Merger Agreement,
and the payment of any transaction fees and expenses in connection with the
Merger Agreement and the Finance Documents.
“Bridge Facility Agreement”
means the senior subordinated bridge facility agreement dated the Original
Execution Date between, among others, Merger Sub, NTL and the Mandated Lead
Arrangers (as defined therein) relating to the Bridge Facility or any agreement
entered into pursuant thereto and in accordance with the terms thereof for the
purposes of extending the term of such facilities beyond one year (including, in
each case, any Exchange Notes).
“Bridge Finance Documents” has
the meaning given to the term “Finance Documents” in the Bridge Facility
Agreement, the Alternative Bridge Facility Agreement or, in each case, any
Exchange Notes, as the case may be, as the context may require.
“Budget” means in respect of
any financial year commencing after 31 December 2006, the budget for such
financial year, in the form and including the information required to be
delivered by the Company to the Facility Agent pursuant to Clause 22.3
(Budget).
“Business Day” means a day
(other than a Saturday or Sunday) on which (a) banks generally are open for
business in London and (b) if such reference relates to a date for the payment
or purchase of any sum denominated in:
|
|
(a)
|
euro
(A) is a TARGET Day and (B) is a day on which banks generally are open for
business in the financial centre selected by the Facility Agent for
receipt of payments in euro; or
|
|
|
(b)
|
in
a currency other than euro, banks generally are open for business in the
principal financial centre of the country of such
currency.
|
“Business Division Transaction”
means any sale, transfer, demerger, contribution, spin-off or distribution of,
any creation or participation in any joint venture and/or entering into any
other transaction or taking any action with respect to, in each case, any
assets, undertakings and/or businesses of the Group which comprise all or part
of the “NTL – Business Segment” of the Group, to or with any other entity or
person, whether or not within the Group or the Bank Group, in each case, where
such transaction has the prior approval of an Instructing Group.
“Captive Insurance Company”
means any captive insurance company for the Group (or any part thereof, which
includes the Bank Group).
“Cash” has the meaning ascribed
to it in Clause 23.1 (Financial
Definitions).
“Cash Equivalent Investment”
means:
|
|
(a)
|
debt securities which
are freely negotiable and
marketable:
|
|
|
(i)
|
which
mature not more than 12 months from the date of acquisition;
and
|
|
|
(ii)
|
which
are rated at least AA by Standard & Poor’s or Fitch or Aa2 by
Xxxxx’x;
|
|
|
(b)
|
certificates
of deposit of, or time deposits or overnight bank deposits with, any
commercial bank whose short-term securities are rated at least A-2 by
Standard and Poor’s or Fitch or P-2 by Xxxxx’x and having maturities of 12
months or less from the date of
acquisition;
|
|
|
(c)
|
commercial
paper of, or money market accounts or funds with or issued by, an issuer
rated at least A-2 by Standard & Poor’s or Fitch or P-2 by Xxxxx’x and
having an original tenor of 12 months or
less;
|
|
|
(d)
|
medium
term fixed or floating rate notes of an issuer rated at least AA by
Standard & Poor’s or Fitch or Aa2 by Xxxxx’x at the time of
acquisition and having a remaining term of 12 months or less from the date
of acquisition; or
|
|
|
(e)
|
any
investment in a money market fund or enhanced yield fund (i) whose
aggregate assets exceed £250 million and (ii) at least 90% of whose assets
constitute Cash Equivalent Investments of the type described in
paragraphs (a) to (d) of this
definition.
|
“Centre of Main Interests” has
the meaning given to it in Article 3(1) of Council Regulation (EC) NO 1346/2000
of 29 May 2000 on Insolvency Proceedings.
“C Facility” means the term
loan facility to be made available to the Company pursuant to Clause 2.1(i)
(The
Facilities).
“C Facility Fees Letter” means
a fees letter dated any time after the Second Amendment Effective Date made
between the Company and any person agreeing to become a C Facility Lender
pursuant to the terms of this Agreement.
“C Facility Lender” means a
person who has become a Lender in respect of the C Facility pursuant to the
provisions of Clause 2.7 (Alternative Bridge Facility
Refinancing).
|
|
“C Facility Lender Deed of
Accession” means a duly completed deed of accession in the form of
Part 2 of Schedule 3 (Form of C Facility Lender Deed
of Accession).
|
“C Facility Liabilities” has
the meaning given to such term in the Group Intercreditor
Agreement.
“C Facility Margin” means, in
relation to the C Facility Advances, the percentage per annum set out in a term
sheet agreed between the Company and one or more C Facility Lender(s) at the
time of pricing of the New High Yield Notes pursuant to an Option B Alternative
Bridge Facility Refinancing and notified to the Facility Agent, prior to the
date on which the applicable C Facility Lender(s) become a party to this
Agreement.
“C Facility Outstandings”
means, at any time the aggregate principal amount of the C Facility Advances
outstanding under this Agreement.
“Change in Tax Law” means the
introduction, implementation, repeal, withdrawal or change in, or in the
interpretation, administration or application of any Law relating to taxation
(a) in the case of a participation in an Advance by a Lender named in Part 1 of
Schedule 1(Lenders and
Commitments) after the Original Execution Date, or (b) in the case of a
participation in an Advance by any other Lender, after the date upon which such
Lender becomes a party to this Agreement in accordance with the provisions of
Clause 37 (Assignments
and Transfers).
|
|
“Change of Control”
means:
|
|
|
(a)
|
any
“person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) other than any Permitted Holder or a “group” of
Permitted Holders, becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for
purposes of this paragraph (a) such person or group shall be deemed
to have “beneficial ownership” of all shares that such person or “group”
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 30%
of the Voting Stock of the Ultimate Parent (for the purposes of this
paragraph (a), such person shall be deemed to beneficially own any
Voting Stock of an entity held by any other entity (the “parent entity”), if such
person is the beneficial owner (as defined in this paragraph (a)),
directly or indirectly, of more than 50% of the Voting Stock of such
parent entity);
|
|
|
(b)
|
the
sale of all or substantially all of the assets of the Bank Group taken as
a whole;
|
|
|
(c)
|
during
any period of two consecutive years, individuals who at the beginning of
such period constituted the board of directors of the Ultimate Parent
(together with any new directors whose election by such board of directors
or whose nomination for election by the shareholders of such company was
approved by a vote of a majority of the directors of such company then
still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the board of directors of
the Ultimate Parent, then in the
office;
|
|
|
(d)
|
any
change of control (howsoever defined) occurs under the Existing High Yield
Notes, the Additional High Yield Notes or (if applicable) any High Yield
Refinancing, in each case, for so long as any principal amount remains
owing under the same and to the extent such Existing High Yield Notes,
Additional High Yield Notes or (if applicable) High Yield Refinancing are
not defeased; or
|
|
|
(e)
|
any
change of control (howsoever defined) occurs under the Bridge Facility
Agreement or the Alternative Bridge Facility Agreement or, if applicable
the Exchange Notes or the New High Yield Notes, in each case, for so long
as any principal amount remains owing under the same and in the case of
the Exchange Notes and New High Yield Notes only, to the extent such
Exchange Notes or New High Yield Notes are not
defeased,
|
provided
that an event or transaction shall not constitute a Change of Control under
paragraphs (a), (b) or (c) above:
|
|
(i)
|
in
the event that the Ultimate Parent becomes a wholly-owned Subsidiary of a
Holding Company and the stockholders of such Holding Company are
substantially the same as the stockholders of the Ultimate Parent prior to
such transaction (in the case of clause (c) above, such Holding
Company shall be treated as the Ultimate Parent
thereafter);
|
|
|
(ii)
|
if
the transaction is a “Non-Control Acquisition”;
or
|
|
|
(iii)
|
as
a result of any transactions expressly contemplated by the Steps
Paper.
|
For these
purposes:
a “Non-Control Acquisition” shall
mean (a) any acquisition of Voting Stock of the Ultimate Parent by an
employee benefit plan (or a trust forming a part thereof) maintained by the
Ultimate Parent or any Subsidiary of the Ultimate Parent or any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator of
any such plan or trust, (b) any acquisition of Voting Stock of the Ultimate
Parent by the Ultimate Parent or any Subsidiary of the Ultimate Parent, or
(c) any “Non-Control Transaction”; and
a “Non-Control Transaction” shall
mean (a) a merger, amalgamation or consolidation of the Ultimate Parent or
any Subsidiary of the Ultimate Parent with or into another entity or entities,
or (b) a sale of all or substantially all of the assets of the Bank Group
taken as a whole to another entity or entities (each under clause (a) and
(b) a “Transaction”) in
which:
|
|
(A)
|
the
stockholders of the Ultimate Parent immediately before such Transaction
own directly or indirectly immediately following such Transaction at least
50% of the Voting Stock of the surviving or transferee entity or entities
of such Transaction or the ultimate parent company to such surviving or
transferee entity or entities; and
|
|
|
(B)
|
the
individuals who were members of the board of directors of the Ultimate
Parent immediately prior to the execution of the agreement providing for
such Transaction constitute at least a majority of the members of the
board of directors of the surviving or transferee entity or entities of
such Transaction or, if such surviving or transferee entity or entities is
not the ultimate parent company to the Bank Group, the ultimate parent
company to such surviving or transferee entity or
entities.
|
Upon and
following a Non-Control Acquisition, under clauses (a) and (c) above, the
term the “Ultimate Parent” shall be deemed to be a reference to such surviving
or transferee entity or, if such surviving or transferee entity or entities is
not the ultimate parent company to the Bank Group, the ultimate parent company
to such surviving or transferee entity or entities.
“Code” means the Internal
Revenue Code of 1986, as amended from time to time, and the regulations
promulgated thereunder. Section references to the Code are to the
Code, as in effect at the Original Execution Date and any subsequent provisions
of the Code, amendatory of it, supplemental to it or substituted
therefor.
|
|
“Commitment”
means:
|
|
|
(a)
|
when
designated “A
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this
Agreement;
|
|
|
(b)
|
when
designated “A1
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this
Agreement;
|
|
|
(c)
|
when
designated “A2
Facility” in relation to a Lender at any time, and save as
otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its A2 Facility Commitment as provided in Clause 2.3 (Roll Effective Date);
or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement;
|
|
|
(d)
|
when
designated “A3
Facility” in relation to a Lender at any time, and save as
otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its A3 Facility Commitment as provided in Clause 2.3 (Roll Effective Date);
or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement;
|
|
|
(e)
|
when
designated “Additional
Facility” in relation to a Lender and an Additional Facility at any
time and save as otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount set opposite its name in the Additional Facility Accession
Agreement in relation to that Additional Facility and the amount of any
other Additional Facility Commitment in relation to that Additional
Facility transferred to it under this Agreement;
or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which such Lender becomes a
party to this Agreement;
|
|
|
(f)
|
when
designated “B1
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments), or as specified in the Transfer Deed pursuant to
which such Lender becomes a party to this
Agreement;
|
|
|
(g)
|
when
designated “B2
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments), or as specified in the Transfer Deed pursuant to
which such Lender becomes a party to this
Agreement;
|
|
|
(h)
|
when
designated “B3
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments), or as specified in the Transfer Deed pursuant to
which such Lender becomes a party to this
Agreement;
|
|
|
(i)
|
when
designated “B4
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments), or as specified in the Transfer Deed pursuant to
which such Lender becomes a party to this
Agreement;
|
|
|
(j)
|
when
designated “B5
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments), or as specified in the Transfer Deed pursuant to
which such Lender becomes a party to this
Agreement;
|
|
|
(k)
|
when
designated “B6
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments), or as specified in the Transfer Deed pursuant to
which such Lender becomes a party to this
Agreement;
|
|
|
(l)
|
when
designated “B7
Facility” in relation to a Lender at any time, and save as
otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its B7 Facility Commitment as provided in Clause 2.3 (Roll Effective Date);
or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement;
|
|
|
(m)
|
when
designated “B8
Facility” in relation to a Lender at any time, and save as
otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its B8 Facility Commitment as provided in Clause 2.3 (Roll Effective Date);
or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement;
|
|
|
(n)
|
when
designated “B9 Facility” in
relation to a Lender at any time, and save as otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its B9 Facility Commitment as provided in Clause 2.3 (Roll Effective Date);
or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement;
|
|
|
(o)
|
when
designated “B10 Facility” in
relation to a Lender at any time, and save as otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its B10 Facility Commitment as provided in Clause 2.3
(Roll Effective
Date); or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement.
|
|
|
(p)
|
when
designated “B11 Facility” in
relation to a Lender at any time, and save as otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its B11 Facility Commitment as provided in Clause 2.3
(Roll Effective
Date); or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement.
|
|
|
(q)
|
when
designated “B12
Facility” in relation to a Lender at any time, and save as
otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its B12 Facility Commitment as provided in Clause 2.3 (Roll Effective Date);
or
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement.
|
|
|
(r)
|
when designated “C Facility” in relation
to a Lender at any time, and save as otherwise provided in this Agreement,
the amount set out in a C Facility Lender Deed of Accession or a Transfer
Deed, as applicable, pursuant to which such Lender becomes a party to this
Agreement as a C Facility Lender;
|
|
|
(s)
|
when
designated “RCF
Facility” in relation to a Lender at any time, means its Revolving
Facility Commitment and Secondary Revolving Facility
Commitment;
|
|
|
(t)
|
when
designated “Revolving
Facility” in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in
the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments), or as specified in the Transfer Deed pursuant to
which such Lender becomes a party to this Agreement;
and
|
|
|
(u)
|
when
designated “Secondary
Revolving Facility” in relation to a Lender at any time, and save
as otherwise provided in this
Agreement,
|
|
|
(i)
|
the
amount of its Secondary Revolving Facility Commitment as provided in
Clause 2.3 (Roll
Effective Date); or
|
|
< |