(1) MS IRISH CABLE HOLDINGS B.V., (the Borrower) a private limited
liability company (besloten vennootschap met
beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands having its registered office at Locatellikade 1, 1076 AZ,
Amsterdam, the Netherlands; and
IRELAND B.V. (the Lender)
a private limited liability company (besloten
vennootschap) incorporated under the laws of the Netherlands having
its registered office at Boeing Avenue 53, 1119 PE Schiphol-Rijk, the
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
where expressly defined herein, terms shall have the meaning ascribed to them
in the UGC SPA (as defined below).
Final Maturity Datemeans the 60th anniversary
of the date hereof;
Group means the Borrower and its subsidiaries from time to time;
Period means (other than in respect of
the first Interest Period) a period of twelve months commencing on 1 December in
a particular year and ending on the 30 November in the following
year. The first Interest Period relating
to the Loan will commence on the date hereof and end on 30 November 2005
and each subsequent Interest Period will commence upon the expiry of the
previous Interest Period, but so that any amount to be repaid or prepaid under
this Agreement will have a final Interest Period ending on that repayment or
Rate means, in respect of any Interest
Period, an amount equal to 100% of the Borrower’s profits in that Interest
Period determined in accordance with Netherlands GAAP;
Loan means the advance in an amount of €338,559,484 made or to be made
by the Lender under this Agreement;
Member State means a member state of the
European Communities that adopts the Euro as its lawful currency under the
legislation of the European Union for European Monetary Union;
UGC SPA means the sale and purchase agreement dated on or about the date
hereof between Morgan Stanley, the Lender and the Guarantor.
Request means a notice substantially in
the form set out in Schedule 3.
1.2 Clause headings are inserted for convenience of reference only and
shall be ignored in the interpretation of this Agreement. In this Agreement, unless the context
otherwise requires, references to Clauses and
to Schedules are to be construed as
references to the clauses of, and schedules to, this Agreement.
1.3 The recitals to this Agreement do not form an operative part of the
1.4 Words importing the plural shall include the singular and vice
1.5 References to a person shall be construed as references to an
individual, firm, company, corporation, unincorporated body of persons or any
state or agency thereof.
1.6 A reference to €
is to Euros.
2.1 The proceeds of the Loan shall be applied solely towards discharging
(a) the Purchase Price (before any adjustments including, for the
avoidance of doubt, the assumption of any debt or payment obligations whether
by way of novation or otherwise (the Adjustments)) (b) funding the
Adjustments, the essential working capital, capital expenditure, general
corporate purposes requirements of the Borrower and to meet any liabilities
incurred in connection with or arising out of the Transactions.
2.2 The proceeds of the Loan must be applied towards purpose (a) in
Clause 2.1 before they can be applied towards the purposes set out in
paragraphs (b) and (c) of Clause 2.1.
2.3 No amount borrowed or credit provided under this Agreement shall be
applied in any manner that is illegal.
2.4 For the avoidance of doubt, nothing in this Agreement shall be
construed as conferring on the Lender any right or entitlement, directly or
indirectly, to exercise any control or decisive influence over the Borrower or
over NTL Ireland.
3.1 Subject to the provisions hereof, the Loan shall be drawn in a
single drawing. The outstanding
principal amount under this Agreement shall not exceed the amount of the Loan
at any time.
3.2 When the Borrower wishes the Lender to make the advance hereunder,
it will deliver a duly completed Utilisation Request to the Lender including by
fax, (or telephone to be immediately confirmed in writing) not later than 11 a.m.
(London time) on the Business Day on which the funds are required (or such
lesser period as the Lender may agree), the Business Day on which it is to be
made and the bank account or accounts to which payment is to be made or as the
parties may otherwise agree.
4.1 The Loan will carry simple interest at the Interest Rate from the
date of its advance until the date on which it has been repaid or prepaid in
full. Such interest shall accrue on the
last day of each Interest Period and shall only become payable on the date of
repayment or prepayment of the Loan. For
the avoidance of doubt, any such accrued interest shall not be capitalised or
attract interest itself.
4.2 All payments of interest shall be made without any deduction or
withholding on account of tax save as required by law. In the event that any such deduction or
withholding is required by law the Borrower is under no obligation to pay an
additional amount in respect of such withholding or deduction or otherwise to
gross up any payments due to be made by it hereunder.
The Borrower shall repay the advances then
outstanding (together with all accrued interest due hereunder) on the Final
Maturity Date, on which date the Lender’s obligations under this Agreement shall
Subject to the provisions hereof:
6.1 if the Condition in Clause 4.1(a) of the UGC SPA is not
satisfied within five (5) Business Days of the date of the UGC SPA the
Borrower shall prepay the outstanding principal amount of the Loan on receipt
of all outstanding Expenses (as described in clause 4.3 of the UGC SPA). For the avoidance of doubt, any such
prepayment under this clause shall be in respect of principal only and the
Borrower shall not be required to pay any interest thereon;
6.2 if a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver or administrator (or
equivalent in the relevant jurisdiction) is appointed in respect of Morgan
Stanley (other than in relation to a solvent winding-up or reorganisation of
Morgan Stanley) the Borrower shall prepay all outstanding amounts (whether of
principal or interest) hereunder; and
6.3 the Borrower may at any time prepay all or any part of any
outstanding amounts (whether of principal or interest) hereunder.
7.1 All payments due to be made by the Borrower hereunder shall be made
to such bank account as the Lender may specify in London or in the principal
financial centre of a Participating Member State in writing in Euros and in
freely available same day funds.
7.2 If the due date for payment hereunder is not a Business Day such
payment shall be made on the following Business Day.
8. CHANGES TO THE LENDER
Transfers by the Lender
8.1 Subject to this Clause 8, a Lender (the Existing Lender )
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another entity (the New Lender) provided
that UPC Ireland B.V. as Lender at the date hereof may not assign any of its
rights and may only transfer by novation all (and not part) of its rights and
obligations (including all accrued rights and claims) under this Agreement to
Morgan Stanley (or such of Morgan Stanley’s affiliates as Morgan Stanley shall
direct) and hereby agrees that it shall so transfer immediately upon receipt of
a notice from Morgan Stanley of its exercise of the Call Option in accordance
with the terms of the UGC SPA.
Conditions of transfer
8.2 A transfer will only be effective if the procedure set out in
Clause 8.3 (Procedure for transfer)
is complied with.
Procedure for transfer
8.3 (a) A transfer is effected in accordance with paragraph (b) below
when the New Lender executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender.
The New Lender shall, subject to paragraph (b) below, as soon
as reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender
seeks to transfer by novation its rights and obligations (including all accrued
rights and claims) under this Agreement the Borrower and the Existing Lender
shall be released from further obligations towards one another under this
Agreement and their respective rights against one another under this Agreement
shall be cancelled (being the Discharged
Rights and Obligations);
(ii) the Borrower and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that the Borrower and the New
Lender have assumed and/or acquired the same in place of the Borrower and the
(iii) the New Lender shall become a Party as the “Lender”.
Copy of Transfer Certificate to Borrower
8.4 The New Lender shall immediately after it has executed a Transfer
Certificate, send to the Borrower a copy of that Transfer Certificate.
8.5 The Borrower hereby appoints and authorises the Existing Lender to
execute any Transfer Certificate on its behalf in accordance with this Clause
9.1 If any of the provisions of this Agreement becomes invalid, illegal
or unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
The Lender represents and warrants that the
subject matter of the transactions contemplated by the Transaction Documents,
connote a relationship between the Lender and the Borrower which for the
purposes of application of the Exemption Regulation of the Dutch Minister of
Finance under the Act on the Supervision of the Credit System 1992 (Wet toezicht kredietwezen 1992), in
particular Clause 2 of that regulation, qualifies as a restricted circle (“besloten kring”) and that as a consequence
the loan made available by UGC to Morgan Stanley SPV pursuant to the UGC Loan
Agreement does not violate clause 82 of the Act on the Supervision of the Credit
11.1 No failure or delay by any party in exercising any right or remedy
provided by law under or pursuant to the Agreement shall impair such rights or
remedy or operate or be construed as a waiver or variation of it or preclude
its exercise at any subsequent time and no single partial exercise of any such
right or remedy shall preclude any other or further exercise of it or the
exercise of any other right or remedy.
11.2 Any waiver and any consent by the Lender or the Borrower under this
Agreement must be in writing and may be given subject to any conditions thought
fit by the other party. Any waiver or
consent shall be effective only in the instance and for the purposes for which
it is given.
11.3 Any request or notice to be made or given hereunder shall be
effective if sent by facsimile, personally delivered letter or recorded
(a) in the case of a notice or request sent to the Borrower addressed to
the Borrower at the following address:
Irish Cable Holdings B.V.
Stanley, 25 Cabot Square, Canary Wharf, London E14 4QW
number: 0044 20 7425 8990) marked for the urgent attention of Scott Matlock and
(b) in the case of a notice or request sent to the Lender addressed to
the Lender it at the following address:
53, 1119PE Schipol Rijk, the Netherlands
number: 0031 207789871) marked for the urgent attention of the General Counsel.
the case of a request or notice sent by facsimile it will be deemed to have
been received twelve (12) hours after it was sent, provided that it is
confirmed by delivery or post within five (5) Business Days, in the case
of personal delivery, when delivered and, in the case of posting, at the time
of delivery certified by the postal service.
11.4 Either party may at any time change its address for service of
notice by giving notice thereof to the other party, which shall take effect
five (5) Business Days after receipt of such notice.
11.5 This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their successors and assigns.
11.6 Other than as provided for in Clause 8.1 neither party to this
Agreement may assign any of its rights or transfer by novation any of its
rights and obligations under this Agreement without the prior written consent
of the other.
11.7 The parties agree that the Loan will not be registered in a register
kept in the United Kingdom.
11.8 This Agreement may be executed in any number of counterparts and by
the parties to it on separate counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
11.9 The provisions of this Agreement shall not be varied otherwise than
by an instrument in writing executed by or on behalf of both parties. The expression variationshall include any supplement, deletion or replacement.
11.10 Other than Morgan Stanley, a person who is not a party to this Agreement
shall have no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce any of its terms.
11.11 This Agreement shall be governed by, and shall be construed in
accordance with, English law.
11.12 All parties agree that the courts of England are (subject to clause
11.13) to have exclusive jurisdiction to settle any disputes (including claims
for set-off and counterclaims) which may arise out of or in connection with
this Agreement and for such purposes irrevocably submit to the jurisdiction of
the English courts.
11.13 The agreement contained in clause 11.11 above is included for
the benefit of the Borrower.
Accordingly, notwithstanding the exclusive agreement in
clause 11.11 above, the Borrower shall retain the right to bring
proceedings in any other jurisdiction and, if the Borrower is involved as
defendant in proceedings in a jurisdiction other than England concerning acts
or omission relating to or arising from or in connection with the Borrower’s
involvement in NTL Ireland, the Borrower can join the Lender to those
proceedings where the Borrower considers it reasonable to do so and the Lender
irrevocably submits to any such jurisdiction.
To the extent allowed by law the Borrower may take concurrent
proceedings in any number of jurisdictions.
11.14 The Lender irrevocably consents to service of process or any other
document in connection with proceedings in any court by facsimile transmission,
personal service, delivery at any address specified in this Agreement or any
other usual address, mail or in any other manner permitted by English law, the
law of the place of service or the law of jurisdiction where proceedings are
11.15 The Lender shall at all times maintain an agent for service of
process and any other documents in proceedings in England or any other
proceedings in connection with this Agreement.
Such agent shall be UGC Europe Services (UK) Limited (for the attention
of General Counsel) currently of Michelin House, 81 Fulham Road, London SW3 6RD
and any claim form, judgment or other notice of legal process shall be
sufficiently served on the Lender if delivered to such agent at its address for
the time being. The Lender irrevocably
undertakes not to revoke the authority of this agent and if, for any reason,
the Borrower requests the Lender to do so it shall promptly appoint another
such agent with an address in England and advise the Borrower. If, following such a request, the Lender
fails to appoint another agent, the Borrower shall be entitled to appoint one
on behalf of the Lender at the expense of the Lender. If, for any reason, the Lender requests the
Borrower to appoint an agent for service of process or any other documents in
proceedings in England or any other proceedings in connection with this
Agreement, it shall immediately do so and advise the Lender. If, following such a request, the Borrower
fails to appoint an agent, the Lender shall be entitled to appoint one on
behalf of the Borrower.
1. We refer to the Agreement.
This is a Transfer Certificate.
Terms defined in the Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer Certificate.
2. We refer to Clause 8.3 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing Lender’s
Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 8.3 (Procedure for transfer).
(b) The proposed Transfer Date is
(c) The Loan Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 11.3 (Miscellaneous) are set out in the Schedule.
3. This Transfer Certificate may be executed in any number of
counterparts and this has the same effect as if the signatures on the
counterparts were on a single copy of this Transfer Certificate.
4. This Transfer Certificate is governed by English law.
Commitment/rights and obligations to be
[insert relevant details]
[Loan Office address, fax number and attention details for notices and account
details for payments,]
[Existing Lender] (for itself and the
Transfer Certificate is accepted by the New Lender and the Transfer Date is
1. We refer to the
Freshfields Account Letter (the Letter) dated
May 2005 between Freshfields Bruckhaus Deringer, the Lender and the
Borrower. Terms defined in the Agreement
and the Letter have the same meaning in this Utilisation Request.
2. We wish to borrow a loan
on the following terms:
3. The proceeds of this Loan
should be credited to the accounts and otherwise in the manner provided for in