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 10.54
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:
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(1)
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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”);
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(2)
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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”);
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(3)
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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”);
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(4)
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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”);
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(5)
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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”);
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(6)
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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”);
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(7)
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THE ORIGINAL GUARANTORS
(as defined below);
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(8)
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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”);
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(9)
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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”);
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(10)
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DEUTSCHE BANK AG, LONDON
BRANCH (as agent for and on behalf of the Finance Parties, the
“Facility
Agent”);
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(11)
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DEUTSCHE BANK AG, NEW YORK
BRANCH (as United States paying agent for and on behalf of the
Finance Parties, the “US Paying
Agent”);
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(12)
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DEUTSCHE BANK AG, LONDON
BRANCH (as security trustee for and on behalf of the Finance
Parties, the “Security
Trustee”);
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(13)
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GE CORPORATE BANKING EUROPE SAS
(as administrative agent, the “Administrative
Agent”);
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(14)
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THE LENDERS (as defined
below); and
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(15)
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DEUTSCHE BANK AG, LONDON
BRANCH as L/C Bank (the “Original L/C
Bank”).
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WHEREAS:
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(1)
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The
parties hereto have entered into a £3.775 billion senior facilities
agreement dated the Original Execution Date (as defined below) (the “Original
Agreement”).
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(2)
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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.
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(3)
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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.
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(4)
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Accordingly,
the Original Agreement shall be amended and restated in the form of this
Agreement with effect from the date of such Structure
Notice.
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1.1
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Definitions
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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:
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(a)
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if
the 1992 Master Agreement is used, “Second Method” and “Market Quotation”
are specified as the payment method
applicable;
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(b)
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if
the 2002 Master Agreement is used, the relevant agreement provides for two
way payments; and
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(c)
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the
governing Law is English or New York
Law.
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“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:
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(a)
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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);
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(b)
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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);
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(c)
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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);
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(d)
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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);
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(e)
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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);
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(f)
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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);
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(g)
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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
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(h)
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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),
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(i)
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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),
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(j)
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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),
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(k)
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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);
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(l)
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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);
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(m)
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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);
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(n)
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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);
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(o)
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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);
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(p)
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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);
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(q)
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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);
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(r)
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when
designated “RCF
Facility”, a Revolving Facility Advance or Secondary Revolving
Facility Advance;
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(s)
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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);
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(t)
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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);
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(u)
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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
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(v)
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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,
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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:
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(a)
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overdraft,
automated payment, cheque drawing or other current account
facility;
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(b)
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forward
foreign exchange facility;
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(c)
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derivatives
facility;
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(d)
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guarantee,
bond issuance, documentary or stand-by letter of credit
facility;
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(e)
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performance
bond facility; and/or
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(f)
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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.
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“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:
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(a)
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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
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(b)
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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).
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“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:
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(a)
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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”);
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(b)
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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
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(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:
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|
(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);
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|
(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);
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|
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(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
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|
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(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.
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“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:
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|
(a)
|
in
relation to the A1 Facility and B1
Facility:
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|
|
(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
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|
|
(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
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|
|
(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
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|
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(ii)
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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,
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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:
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(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
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|
|
(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
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|
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(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,
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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;
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|
(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:
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|
(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;
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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:
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|
(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:
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|
(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
|
|
|
(ii)
|
as
specified in the Transfer Deed pursuant to which each such Lender becomes
a party to this Agreement;
|
in each
case to the extent not cancelled, reduced or transferred by it under this
Agreement, and without any such designation means “A Facility Commitment”, “A1 Facility Commitment”,
“A2 Facility
Commitment”, “A3
Facility Commitment”, “Additional Facility
Commitment”, “B1
Facility Commitment”,
“B2 Facility
Commitment”,
“B3 Facility
Commitment”,
“B4 Facility
Commitment”, “B5
Facility Commitment”, “B6 Facility Commitment”,
“B7 Facility
Commitment”, “B8
Facility Commitment”, “B9 Facility Commitment”,
“B10 Facility
Commitment”, “B11
Facility Commitment”, “B12 Facility Commitment”,
“C Facility Commitment”,
“RCF Facility
Commitment”, “Revolving
Facility Commitment” and “Secondary Revolving Facility
Commitment” as the context requires.
“Commitment Letter” means the
letter dated 3 March 2006 from the Bookrunners to NTL and the Company in
relation to the commitment of the Bookrunners to arrange and underwrite the
Facilities together with the related accession notices entered into by the
Arrangers.
“Company” means:
|
|
(a)
|
VMIH;
or
|
|
|
(b)
|
following
a solvent liquidation of VMIH, pursuant to the provisions of
Clause 25.20 (Solvent Liquidation),
NTL Finance Limited.
|
“Compliance Certificate” means
a certificate substantially in the form set out in Schedule 8 (Form of Quarterly Compliance
Certificate) or such other similar form as the Facility Agent shall agree
with the Company.
“Consolidated Debt Service” has
the meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Consolidated Net Debt” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Consolidated Net Income” has
the meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Consolidated Operating
Cashflow” has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Consolidated Total Debt” has
the meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Consolidated Total Net Cash Interest
Payable” has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Content” means any rights to
broadcast, transmit, distribute or otherwise make available for viewing,
exhibition or reception (whether in analogue or digital format and whether as a
channel or an Internet service, a teletext-type service, an interactive service,
or an enhanced television service or any part of any of the foregoing, or on a
pay-per-view basis, or near video-on-demand, or video-on-demand basis or
otherwise) any one or more of audio and/or visual images, audio content, or
interactive content (including hyperlinks, re-purposed web-site content,
database content plus associated templates, formatting information and other
data including any interactive applications or functionality), text, data,
graphics, or other content, by means of any means of distribution, transmission
or delivery system or technology (whether now known or herein after
invented).
“Content Transaction” means any
sale, transfer, demerger, contribution, spin-off or distribution of, any
creation or participation in any joint venture and/or entering into any other
transaction or taking any action with respect to, in each case, any assets,
undertakings and/or businesses of the Group which comprise all or part of the
Content business of the Group, to or with any other entity or person whether or
not within the Group or Bank Group.
“Contribution Notice” means a
financial support direction issued by the Pensions Regulator under section 38 or
section 47 of the Pensions Xxx 0000.
“Conversion Notice” has the
meaning given to such term in paragraph (a) of Clause 6.1(Utilisation of Ancillary
Facilities).
“Cost” means the cost estimated
in good faith by the relevant member of the Bank Group to have been incurred or
to be received by that member of the Bank Group in the provision or receipt of
the relevant service, facility or arrangement, including, without limitation, a
proportion of any material employment, property, information technology,
administration, utilities, transport and materials or other costs incurred or
received in the provision or receipt of such service, facility or arrangement,
but excluding costs which are either not material or not directly attributable
to the provision or receipt of the relevant service, facility or
arrangement.
“Court Order” means the order
of the Court confirming the sanctioning of the Baseball Scheme as required by
Section 425 of the Act.
“Current Assets” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Current Liabilities” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Debt Proceeds” means the cash
proceeds received in respect of any Financial Indebtedness raised by any member
of the Group other than Parent Debt (after deducting all reasonable fees,
commissions, costs and expenses incurred by any member of the Group in
connection with such raising) whether raised by way of bilateral or syndicated
credit facilities, in the international or domestic debt capital markets or
otherwise and including, for the avoidance of doubt, any debt which at any time
following issuance is capable of being converted or exchanged into
equity.
“Debt Service Cover Ratio” has
the meaning given to such term in paragraph (c) of Clause 23.2 (Ratios).
“Deductions Limit” means the
total amounts which are deductible for the purposes of UK corporation tax by
members of the Bank Group in any financial year and which (a) arise from the
payment or accrual of actual or imputed amounts of interest on, or (b)
constitute foreign exchange losses on, any loan made to any member of the Bank
Group by any Non-Bank Group UK Taxpayer.
“Default” means an Event of
Default or any event or circumstance which (with the expiry of a grace period,
the giving of notice, the making of any determination under any of the Finance
Documents or any combination of any of the foregoing) would be an Event of
Default provided that in relation to any event which is subject to a materiality
threshold or condition before such event would constitute an Event of Default,
such default shall not constitute a Default until such materiality threshold or
condition has been satisfied.
“Designated Anniversary” has
the meaning given to such term in Clause 11.1 (Voluntary
Prepayment).
“Disposal” means any sale,
transfer, lease, surrender or other disposal by any member of the Bank Group of
any shares in any of its Subsidiaries or all or any part of its revenues,
assets, other shares, business or undertakings other than in the ordinary course
of business or trade.
“Documentary Credit” means a
letter of credit, bank guarantee, indemnity, performance bond or other
documentary credit issued or to be issued by an L/C Bank pursuant to
Clause 4.1 (Conditions to
Utilisation).
“Dormant Subsidiary” means, at
any time, with respect to any company, any Subsidiary of such company which is
“dormant” as defined in Section 249AA of the Act (or the equivalent under
the laws of the jurisdiction of incorporation of the relevant
company).
“Double Taxation Treaty” means
in relation to a payment of interest on an Advance made to any Borrower, any
convention or agreement between the government of such Borrower’s Relevant Tax
Jurisdiction and any other government for the avoidance of double taxation with
respect to taxes on income and capital gains which makes provision for exemption
from tax imposed by such Borrower’s Relevant Tax Jurisdiction on
interest.
“Effective Date” has the
meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary
Facilities).
“Eligible Deposit Bank” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“EMU” means Economic and
Monetary Union as contemplated in the Treaty on European Union.
“EMU Legislation” means
legislative measures of the European Union for the introduction of, changeover
to or operation of the euro in one or more member states, being in part
legislative measures to implement the third stage of EMU.
“Encumbrance”
means:
|
|
(a)
|
a
mortgage, charge, pledge, lien, encumbrance or other security interest
securing any obligation of any
person;
|
|
|
(b)
|
any
arrangement under which money or claims to, or the benefit of, a bank or
other account may be applied, set-off or made subject to a combination of
accounts so as to effect payment of sums owed or payable to any person;
or
|
|
|
(c)
|
any
other type of agreement or preferential arrangement (including title
transfer and retention arrangements) having a similar
effect.
|
“Environment” means living
organisms including the ecological systems of which they form part and the
following media:
|
|
(a)
|
air
(including air within natural or man-made structures, whether above or
below ground);
|
|
|
(b)
|
water
(including territorial, coastal and inland waters, water under or within
land and water in drains and sewers);
and
|
|
|
(c)
|
land
(including land under water).
|
“Environmental Claim” means any
administrative, regulatory or judicial action, suit, demand, demand letter,
claim, notice of non-compliance or violation, investigation, proceeding, consent
order or consent agreement relating to any Environmental Law or Environmental
Licence.
“Environmental Law” means all
laws and regulations of any relevant jurisdiction which:
|
|
(a)
|
have
as a purpose or effect the protection of, and/or prevention of harm or
damage to, the Environment;
|
|
|
(b)
|
provide
remedies or compensation for harm or damage to the Environment;
or
|
|
|
(c)
|
relate
to Hazardous Substances or health or safety
matters.
|
“Environmental Licence” means
any Authorisations required at any time under Environmental Law.
“Equity Equivalent Funding”
means a loan made to, or any Financial Indebtedness owed by, any person where
the Financial Indebtedness incurred thereby:
|
|
(a)
|
may
not be repaid at any time prior to the repayment in full of all
Outstandings and cancellation of all Available
Commitments;
|
|
|
(b)
|
carries
no interest or carries interest which is payable only on non-cash pay
terms or following repayment in full of all Outstandings and cancellation
of all Available Commitments; and
|
|
|
(c)
|
is
either (i) structurally and contractually subordinated to the Facilities
or (ii) contractually subordinated to the Facilities, in each case,
pursuant to the HYD Intercreditor Agreement and/or the Group Intercreditor
Agreement.
|
“Equity Proceeds” means the
cash proceeds raised by any member of the Group by way of equity securities
offerings in the international or domestic public equity capital markets (after
deducting all reasonable fees, commissions, costs and expenses incurred by any
member of the Group in connection with such raising) and which do not constitute
Debt Proceeds.
“ERISA” means the U.S. Employee
Retirement Income Security Act of 1974, as amended from time to time, and the
regulations promulgated and the rulings issued under it. Section
references to ERISA are to ERISA as in effect on the Original Execution
Date.
“ERISA Affiliate” means, in
relation to a member of the Bank Group, each person (as defined in section 3(9)
of ERISA) which together with that member of the Bank Group would be deemed to
be a “single employer” within the meaning of section 414(b), (c), (m) or (o) of
the Code.
“EURIBOR” means, in relation to
any amount to be advanced to or owed by an Obligor under this Agreement in euro
on which interest for a given period is to accrue:
|
|
(a)
|
the
rate per annum for deposits in euro which appears on the Relevant Page for
such period at or about 11.00 am (Brussels time) on the Quotation Date for
such period; or
|
|
|
(b)
|
if
no such rate is displayed and the Facility Agent shall not have selected
an alternative service on which such rate is displayed as contemplated by
the definition of “Relevant Page”, the arithmetic mean (rounded upwards,
if not already such a multiple, to 5 decimal places) of the rates (as
notified to the Facility Agent) at which each of the Reference Banks was
offering to prime banks in the European Interbank Market deposits in euro
for such period at or about 11.00 am (Brussels time) on the Quotation Date
for such period.
|
“Eurobond” means one or more
listed notes issued by the Company to the US Borrower after the Original
Execution Date either for cash subscription, in consideration of the novation of
debt obligations hereunder or in exchange for and satisfaction of the Short Term
Notes, as the same may be amended, supplemented, restated, increased, replaced
or otherwise modified from time to time as permitted under this
Agreement.
“European Interbank Market”
means the interbank market for euro operating in Participating Member
States.
“Event of Default” means any of
the events or circumstances described as such in Clause 27(Events of
Default).
“Excess Capacity Network
Service” means the provision of network services, or agreement to provide
network services, by a member of the Bank Group in favour of one or more other
members of the Group where such network services are only provided in respect of
the capacity available to such member of the Bank Group in excess of that
network capacity it requires to continue to provide current services to its
existing and projected future customers and to allow it to provide further
services to both its existing and projected future customers.
“Excess Cash Flow” means in
relation to any financial year of the Company, Bank Group Cash Flow less (a)
Consolidated Debt Service for such financial year, (b) the aggregate amount of
all payments or prepayments of principal, whether voluntary or mandatory, of
Consolidated Total Debt made in such financial year, (c) proceeds from disposals
permitted by Clause 25.6(i) (Disposals) received during
such financial year and (d) proceeds from any Content Transaction or any
Business Division Transaction received during such financial year, provided that
no such amounts prepaid and used in the calculation under paragraph (b)
shall be available for reborrowing and, provided further that for the purposes
of such calculation, no amount shall be included or excluded more than
once.
“Exchange Act” means the US
Securities Exchange Act of 1934, as amended.
“Exchange Notes” means each of
the securities issued in exchange for any of the loans outstanding under the
Bridge Facility or the Alternative Bridge Facility, as the context may require,
and including any indenture pursuant to which they are issued.
“Excluded Group” means each
member of the Group which is not a member of the Bank Group.
“Excluded Group Operating
Cashflow” has the meaning ascribed to it in Clause 23.1(Financial
Definitions).
“Existing Baseball Facilities”
means the certain senior facilities agreement dated 2 July 2004 made between,
amongst others, Baseball and Lloyds TSB Bank PLC as Original Lender and as Agent
(each as defined therein).
“Existing Credit Facilities”
means the Existing NTL Senior Credit Facilities Agreement, the Existing Telewest
Senior Credit Facilities Agreement, the Existing Telewest Second Lien Credit
Facility Agreement and the Existing Flextech Senior Credit Facilities
Agreement.
“Existing Encumbrance” means
any Encumbrance existing as at the Original Execution Date, details of which are
set out in Part 1 of Schedule 10 (Existing
Encumbrances).
“Existing Financial
Indebtedness” means the Financial Indebtedness existing as at the
Original Execution Date, details of which are set out in Part 3 of Schedule 10
(Existing Financial
Indebtedness).
“Existing Flextech Senior Credit
Facilities Agreement” means that certain senior credit facility agreement
dated 10 May 2005 made between the Flextech Broadband Limited and Flextech
Broadcasting Limited as original borrowers, Barclays Capital, BNP Paribas,
Citigroup Global Markets Limited, Credit Suisse First Boston, Deutsche Bank AG
London and others as Arrangers, Barclays Bank PLC as Agent and Security Trustee,
the Original Guarantors and the financial and other institutions named therein
as Lenders (each as defined therein).
“Existing Hedging Agreements”
means the hedging agreements existing as at the Original Execution Date, details
of which are set out in Part 6 of Schedule 10 (Existing Hedging
Agreements).
“Existing High Yield Notes”
means the Sterling denominated 9.75% senior notes due 2014, the dollar
denominated 8.75% senior notes due 2014 and the euro denominated 8.75% senior
notes due 2014, in each case, issued by the Parent.
“Existing Loans” means the
loans granted by members of the Bank Group existing as at the Original Execution
Date, details of which are set out in Part 2 of Schedule 10 (Existing Loans).
“Existing NTL Senior Credit Facilities
Agreement” means that certain senior credit facility dated 13 April 2004
made between Virgin Media Holdings Inc. (formerly known as NTL Holdings Inc.) as
Ultimate Parent, Virgin Media Investment Holdings Limited (formerly known as NTL
Investment Holdings Limited) as Borrower, Credit Suisse First Boston, Deutsche
Bank AG London, Xxxxxxx Xxxxx International, Xxxxxx Xxxxxxx Xxxx Xxxxxx Bank
Limited and others as Mandated Lead Arrangers, Credit Suisse First Boston as
Facility Agent and Security Agent, GE Capital Structured Finance Group Limited
as Administrative Agent and the financial and other institutions named therein
as Lenders (each as defined therein).
“Existing Performance Bonds”
means each of the performance bonds or similar obligations issued by members of
the Bank Group existing as at the Original Execution Date, details of which are
set out in Part 4 of Schedule 10 (Existing Performance
Bonds).
“Existing Telewest Second Lien Credit
Facility Agreement” means that certain second lien facility agreement
dated 21 December 2004 made between Telewest UK Limited, Telewest Communications
Network Limited, Telewest Global France LLC, Barclays Capital, BNP Paribas,
Citigroup Global Markets Limited, Credit Suisse First Boston, Deutsche Bank AG
London and others as Mandated Lead Arrangers, Barclays Bank PLC as Facility
Agent and Security Trustee, Barclays Bank PLC as US Paying Agent, the Original
Guarantors and the financial and other institutions named therein as Lenders
(each as defined therein).
“Existing Telewest Senior Credit
Facilities Agreement” means that certain senior credit facility dated 21
December 2004 made between the Borrower, Barclays Capital, BNP Paribas,
Citigroup Global Markets Limited, Credit Suisse First Boston, Deutsche Bank AG
London and others as Mandated Lead Arrangers, Barclays Bank PLC as Facility
Agent and Security Trustee, Barclays Bank PLC as US Paying Agent, GE Capital
Structured Finance Group Limited as Administrative Agent, the Original
Guarantors and the financial and other institutions named therein as Lenders
(each as defined therein).
“Existing UKTV Group Loan
Stock” means the loan stock and redeemable preference shares issued by
members of the UKTV Group, details of which are set out in Part 5 of Schedule 10
(Existing UKTV Group Loan
Stock).
“Existing Vendor Financing
Arrangements” means each of the existing finance leases and vendor
financing arrangements existing as at the date of the Agreement, details of
which are set out in Part 7 of Schedule 10 (Existing Vendor Financing
Arrangements).
“Expiry Date” means, in
relation to any Documentary Credit granted under this Agreement, the date stated
in it to be its expiry date or the latest date on which demand may be made under
it being a date falling on or prior to the Final Maturity Date in respect of the
Revolving Facility or Secondary Revolving Facility under which it is issued (for
the avoidance of doubt, if it is issued under both the Revolving Facility and
the Secondary Revolving Facility, the Expiry Date must be a date falling on or
prior to the Final Maturity Date in respect of the Revolving
Facility).
“Facilities” means the A
Facility, the A1 Facility, the A2 Facility, the A3 Facility, any Additional
Facility, the B1 Facility, the B2 Facility, the B3 Facility, the B4 Facility,
the B5 Facility, the B6 Facility, the B7 Facility, the B8 Facility, the B9
Facility, the B10 Facility, the B11 Facility, the B12 Facility, the C Facility,
the Revolving Facility, the Secondary Revolving Facility, any Ancillary Facility
and any Documentary Credit granted to the Borrowers under this Agreement, and
“Facility” means any of
them, as the context may require.
“Facility Agent’s Spot Rate of
Exchange” means, in relation to 2 currencies, the Facility Agent’s spot
rate of exchange for the purchase of the first-mentioned currency with the
second-mentioned currency in the London foreign exchange market at or about 11
a.m. on a particular day.
“Facility Office” means the
office notified by a Lender to the Facility Agent in writing on or before the
date it becomes a Lender or, following that date, (i) by not less than five
Business Days’ written notice as the office through which it will perform its
obligations under this Agreement where the office is situated in Financial
Action Task Force countries, or (ii) with the prior written consent of the
Facility Agent, an office through which it will perform its obligations under
this Agreement situated in non-Financial Action Task Force
countries.
“Fees Letters” means the fees
letters referred to in Clauses 16.2 (Arrangement and Underwriting
Fee), 16.3 (Agency
Fee) and 16.5 (L/C Bank
Fee).
“Final Maturity Date”
means:
|
|
(a)
|
in
respect of the Revolving Facility, 3 March
2011;
|
|
|
(b)
|
in
respect of the Secondary Revolving Facility, 3 March 2011 or, after
the occurrence of a Paydown Event, 3 June
2012;
|
|
|
(c)
|
in
respect of an Additional Facility, as agreed by the Company and the
relevant Additional Facility Lenders in the relevant Additional Facility
Accession Agreement, but subject to Clause 2.9 (Additional
Facility);
|
|
|
(d)
|
in
respect of the A Facility and the A1 Facility, 3 March
2011;
|
|
|
(e)
|
in
respect of the A2 Facility and the A3 Facility, 3 March
2011 or, after the occurrence of a Paydown Event, 3 June
2012;
|
|
|
(f)
|
in
respect of the B1 Facility, the B2 Facility, the B3 Facility, the B4
Facility, the B5 Facility, the B6 Facility, the B7 Facility, the B8
Facility, the B9 Facility, the B10 Facility, the B11 Facility and the B12
Facility, 3 September 2012;
and
|
|
|
(g)
|
in
respect of the C Facility, 3 March
2013.
|
“Finance Documents”
means:
|
|
(a)
|
this
Agreement, any Documentary Credit, any Accession Notices and any Transfer
Deeds;
|
|
|
(b)
|
the
Fees Letters;
|
|
|
(c)
|
any
Ancillary Facility Documents;
|
|
|
(d)
|
the
Security Documents;
|
|
|
(e)
|
the
Security Trust Agreement;
|
|
|
(f)
|
the
Group Intercreditor Agreement;
|
|
|
(g)
|
the
HYD Intercreditor Agreement and any Supplemental Additional High Yield
Notes Intercreditor Agreement;
|
|
|
(h)
|
the
Barclays Intercreditor Agreement;
|
|
|
(i)
|
the
Hedging Agreements either entered into pursuant to Clause 24.9 (Hedging) or permitted
to be entered into pursuant to paragraph (c) of Clause 25.12 (Limitation on
Hedging);
|
|
|
(j)
|
each
Additional Facility Accession
Agreement;
|
|
|
(k)
|
any
other agreement or document entered into or executed by a member of the
Bank Group pursuant to any of the foregoing documents;
and
|
|
|
(l)
|
any
other agreement or document designated a “Finance Document” in
writing by the Facility Agent and the
Company.
|
“Finance Lease” means a lease
treated as a capital or finance lease pursuant to GAAP.
“Finance Parties” means the
Agents, the Arrangers, the Bookrunners, the Security Trustee, the Lenders and
each Hedge Counterparty and “Finance Party” means any of
them.
“Financial Action Task Force”
means the Financial Action Task Force on Money Laundering, an inter-governmental
body, the purpose of which is the development and promotion of policies, at both
national and international levels, to combat money laundering.
“Financial Indebtedness” means,
without double counting, any Indebtedness for or in respect of:
|
|
(a)
|
moneys
borrowed;
|
|
|
(b)
|
any
amount raised by acceptance under any acceptance credit
facility;
|
|
|
(c)
|
any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar instrument (for the
avoidance of doubt excluding any loan notes or similar instruments issued
solely by way of consideration for the acquisition of assets in order to
defer capital gains or equivalent taxes where such loan notes or similar
instruments are not issued for the purpose of raising
finance);
|
|
|
(d)
|
the
principal portion of any liability in respect of any Finance
Lease;
|
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis);
|
|
|
(f)
|
the
amount of any liability in respect of any purchase price for assets or
services the payment of which is deferred for a period in excess of 150
days in order to raise finance or to finance the acquisition of those
assets or services;
|
|
|
(g)
|
any
amount raised under any other transaction (including any forward sale or
purchase agreement) required to be accounted for as indebtedness in
accordance with GAAP;
|
|
|
(h)
|
any
derivative transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and, when calculating
the value of any derivative transaction, only the marked to market value
shall be taken into account, provided that for the purposes of
Clause 27.5 (Cross
Default), only the net amount not paid or which is payable by the
relevant member of the Group shall be
included);
|
|
|
(i)
|
any
amount raised pursuant to any issue of shares which are expressed to be
redeemable in cash (other than redeemable shares in respect of which the
redemption is prohibited until after repayment in full of all Outstandings
under the Facilities);
|
|
|
(j)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by
a bank or financial or other institution;
or
|
|
|
(k)
|
the
amount of any liability in respect of any guarantee or indemnity for the
Financial Indebtedness of another person referred to in
paragraphs (a) to (j) above.
|
“Financial Officer” means the
Chief Financial Officer, the Deputy Chief Financial Officer, the Vice President
– Finance, the Controller or the Group Treasurer, in each case, of the Company
or of the Group, or any similar officer of the Company or of the
Group.
“Financial Quarter” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).
“Financial Support Direction”
means a financial support direction issued by the Pensions Regulator under
Section 43 of the Pensions Xxx 0000.
“First Amendment Effective
Date” has the meaning given to it in an amendment letter dated 22 May
2006 between the Ultimate Parent, VMIH, the US Borrower and the Facility
Agent.
“Fitch” means Fitch Ratings or
any successor thereof.
“Foreign Pension Plan” means
any plan, fund (including, without limitation, any superannuation fund) or other
similar program established or maintained outside the United States of America
by any member of the Group for the benefit of employees of any member of the
Group residing outside the United States of America, which plan, fund or other
similar program provides, or results in, retirement income, a deferral of income
in contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
“Fourth Amendment Letter” means
the letter dated 4 April 2007 between the Facility Agent, the Ultimate Parent,
VMIH, VMIH Sub and Virgin Media Dover LLC in connection with the amendment and
restatement of this Agreement on the terms set out therein.
“Funded Excluded Subsidiary”
means, in respect of a Funding Passthrough, a Bank Group Excluded Subsidiary or
any person in which a member of the Bank Group owns an interest but which is not
a member of the Bank Group which:
|
|
(a)
|
indirectly
receives funding from a Bank Holdco;
and/or
|
|
|
(b)
|
by
way of dividend or other distribution, loan or payment of interest on or
the repayment of the principal amount of any indebtedness owed by it,
directly or indirectly, makes a payment to a Bank
Holdco.
|
“Funding Passthrough” means a
series of transactions between a Bank Holdco, one or more members of the Bank
Group and a Funded Excluded Subsidiary where:
|
|
(a)
|
in
the case of funding being provided by a Bank Holdco to the Funded Excluded
Subsidiary, that funding is:
|
|
|
(i)
|
first
made available by the Bank Holdco to (in the case of the Parent) the
Company or, one of its Subsidiaries (other than in the case of Virgin
Media Communications Limited (formerly known as NTL Communications
Limited), the Parent or any of its Subsidiaries) by way of the
subscription for new securities, capital contribution or Subordinated
Funding;
|
|
|
(ii)
|
secondly
(if relevant) made available by the recipient of the Funding Passthrough
under (i) above, to a member of the Bank Group (other than the Company)
which may be followed by one or more transactions between members of the
Bank Group (other than the Company) and finally made available by a member
of the Bank Group (other than the Company) to the Funded Excluded
Subsidiary in all such cases by way of either the subscription for new
securities, the advancing of loans or capital contribution;
or
|
|
|
(b)
|
in
the case of a payment to be made by the Funded Excluded Subsidiary to a
Bank Holdco that payment is:
|
|
|
(i)
|
first
made by the Funded Excluded Subsidiary to a member of the Bank Group, and
thereafter is made between members of the Bank Group (as relevant), by way
of dividend or other distribution, loan or payment of interest on or the
repayment of the principal amount of any indebtedness owed by such Funded
Excluded Subsidiary or relevant member of the Bank Group;
and
|
|
|
(ii)
|
finally
made by the Company to the Parent or by one of the Subsidiaries of Virgin
Media Communications Limited (formerly known as NTL Communications
Limited) (other than the Parent or any of its Subsidiaries) to Virgin
Media Communications Limited (formerly known as NTL Communications
Limited) by way of dividend or other distribution, loan or the payment of
interest on or the repayment of the principal amount of any loan made by
way of Subordinated Funding.
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|
|
“GAAP” means accounting
principles generally accepted in the United States of
America.
|
“Gilt Rate” means as at any
prepayment date, the yield to maturity as of such prepayment date of United
Kingdom government securities with a fixed maturity (as compiled by the Office
for National Statistics and published in the most recent financial statistics
that have become publicly available at least two Business Days in London prior
to such prepayment date (or, if such financial statistics are no longer
published, any publicly available source of similar market data)) most nearly
equal to the period from such prepayment date to and including the Designated
Anniversary; provided,
however, that if the
period from such prepayment date to and including the Designated Anniversary is
less than one year, the weekly average yield on actually traded United Kingdom
government securities denominated in Sterling adjusted to a fixed maturity of
one year shall be used.
“Group” means:
|
|
(a)
|
for
the purposes of Clause 22.1 (Financial Statements),
Clause 22.3 (Budget) and
Clause 23 (Financial Condition)
and any other provisions in this Agreement using the terms defined in
Clause 23 (Financial
Condition):
|
|
|
(i)
|
the
Ultimate Parent and its Subsidiaries from time to
time;
|
|
|
(ii)
|
NTL
South Herts, for so long as a member of the Group is the general partner
of South Hertfordshire United Kingdom Fund, Ltd. or if it becomes a
wholly-owned Subsidiary of the Group;
and
|
(b) for
all other purposes, the Ultimate Parent and its Subsidiaries from time to
time.
“Group Business” means the
provision of broadband and communications services, including:
|
|
(a)
|
residential
telephone, mobile telephone, cable television and Internet services,
including wholesale Internet access solutions to Internet service
providers;
|
|
|
(b)
|
data,
voice and Internet services to large businesses, public sector
organisations and small and medium sized
enterprises;
|
|
|
(c)
|
national
and international communications transport services to communications
companies; and
|
|
|
(d)
|
the
provision of Content,
|
and any
related ancillary or complementary business to any of the services described
above in the United Kingdom, the Isle of Man, the Republic of Ireland
and the Channel Islands provided that “Group Business” may include the provision
of any such services outside the United Kingdom, the Isle of Man, the Republic
of Ireland and the Channel Islands which constitute a non-material part of the
Group Business and which are acquired pursuant to an acquisition permitted under
the terms of this Agreement.
“Group Intercreditor Agreement”
means the intercreditor agreement dated on or about the Merger Closing Date
between, among others, certain of the Obligors, other members of the Group and
the Finance Parties.
“Group Structure Chart”
means:
|
|
(a)
|
as
at the Original Execution Date, the group structure charts relating to the
Telewest Group and the NTL Group, in each case, as constituted immediately
prior to the Merger Closing Date, which have been delivered to the
Facility Agent prior to the Original Execution Date;
and
|
|
|
(b)
|
thereafter,
the group structure charts delivered to the Facility Agent pursuant to
paragraph 2 of Part 4 of Schedule 5 (Vanilla Conditions Subsequent
Documents) and
paragraph 2 of Part 6 of Schedule 4 (Baseball Conditions Subsequent
Documents) or any updated group structure chart which is delivered
to the Facility Agent pursuant to Clause 24.14 (Group Structure Chart)
from time to time.
|
“Guaranteed Parent Debt” has
the meaning given to such term in paragraph (h) of Clause 25.4 (Financial
Indebtedness).
“Guarantors”
means:
|
|
(a)
|
for
the purposes of Clause 29 (Guarantee and
Indemnity), the Parent, the Original Guarantors and any Acceding
Guarantors or in respect of the C Facility only, the Parent only;
and
|
|
|
(b)
|
for
the purposes of any other provision of the Finance Documents, the Original
Guarantors and any Acceding
Guarantors;
|
and
“Guarantor” means any
one of them as the context requires, provided that in either case, such person
has not been released from its rights and obligations as a Guarantor hereunder
pursuant to Clause 43.7 (Release of Guarantees or
Security).
“Hazardous Substance” means any
waste, pollutant, contaminant or other substance (including any liquid, solid,
gas, ion, living organism or noise) that may be harmful to human health or other
life or the Environment.
“Hedge Counterparty” means each
Lender or Affiliate of a Lender which is a party to a Hedging Agreement entered
into for the purposes of Clause 24.9 (Hedging) and “Hedge Counterparties” means
all such Lenders or Affiliates.
“Hedging Agreement” means any
agreement in respect of an interest rate swap, currency swap, forward foreign
exchange transaction, cap, floor, collar or option transaction or any other
treasury transaction or any combination of it or any other transaction entered
into in connection with protection against or benefit from fluctuation in any
rate or price.
“High Yield Refinancing” means
any Financial Indebtedness incurred by the Parent for the purposes of
refinancing all or a portion of the Existing High Yield Notes and/or the
Additional High Yield Notes and/or the New High Yield Notes and/or the C
Facility, in each case, including any Financial Indebtedness incurred for the
purpose of the payment of all principal, interest, fees, expenses, commissions,
make-whole and any other contractual premium payable under the Existing High
Yield Notes and/or the Additional High Yield Notes and/or the New High Yield
Notes and/or the C Facility, as the case may be, being refinanced and any
reasonable fees, costs and expenses incurred in connection with such
refinancing, in respect of which the following terms apply:
|
|
(i)
|
the
final maturity date or redemption date of such refinancing occurs on or
after the scheduled redemption date in respect of the high yield notes
being refinanced;
|
|
|
(ii)
|
the
average life of the High Yield Refinancing is not less than (or in respect
of a refinancing in part, is equal to) the remaining average life of the
high yield notes which are being refinanced, as at the time of such
refinancing; and
|
|
|
(iii)
|
the
Financial Indebtedness constituted by any High Yield Refinancing is
structurally and contractually subordinated to the Facilities on a basis
no less favourable to the Facilities than the basis on which the Existing
High Yield Notes and/or the Additional High Yield Notes and/or the New
High Yield Notes are subordinated to the
Facilities.
|
“Holding Company” of a company
means a company of which the first-mentioned company is a
Subsidiary.
“HYD Intercreditor Agreement”
means the intercreditor agreement dated 13 April 2004 between certain of the
Obligors, the Finance Parties and the indenture trustee in respect of the
Existing High Yield Notes as the same may otherwise be amended, supplemented,
novated or restated from time to time.
“Increased Cost”
means:
|
|
(a)
|
any
reduction in the rate of return from a Facility or on a Finance Party’s
(or an Affiliate’s) overall
capital;
|
|
|
(b)
|
any
additional or increased cost; or
|
|
|
(c)
|
any
reduction of any amount due and payable under any Finance
Document,
|
which is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having agreed to make available
its Commitment or having funded or performed its obligations under any Finance
Document.
“Indebtedness” means any
obligation (whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent (including
interest and other charges relating to it).
“Indemnifying Lender” has the
meaning set out in Clause 5.1(b) (Issue of Documentary
Credits).
“Information Memoranda” means
the Initial Information Memorandum and the Subsequent Information
Memorandum.
“Initial Information Memorandum” means
the information memorandum dated October 2005 approved by the Company concerning
the Obligors which, at the request of the Company and on its behalf, was
prepared in relation to the Facilities and the business, assets, financial
condition and prospects of the Group and which has been made available by the
Mandated Lead Arrangers to selected banks and other institutions for the purpose
of syndicating the Facilities, as supplemented by the proxy statement dated 31
January 2006 and delivered in connection with the Merger and the Forms 10-K of
the Ultimate Parent and NTL dated 28 February 2006.
“Initial Security Documents”
means the security documents listed in Part 4 of Schedule 4 (Vanilla Initial Security
Documents).
“Instructing Group”
means:
|
|
(a)
|
before
any Utilisation of the Facilities under this Agreement, a Lender or group
of Lenders whose Available Commitments amount in aggregate to more than
662/3% of
the Available Facilities; and
|
|
|
(b)
|
thereafter,
a Lender or group of Lenders to whom in aggregate more than 662/3% of
the aggregate amount of the Outstandings are (or if there are no
Outstandings at such time, immediately prior to their repayment, were
then) owed,
|
in each
case, calculated in accordance with the provisions of Clause 43.9 (Calculation of Consents),
provided that whilst any amounts remain outstanding under the A Facility, A1
Facility, A2 Facility, A3 Facility, any Additional Facility, B1 Facility, B2
Facility, B3 Facility, B4 Facility, B5 Facility, B6 Facility, B7 Facility, B8
Facility, B9 Facility, B10 Facility, B11 Facility and/or B12 Facility and/or
whilst any commitments remain available for drawing under the Revolving Facility
or Secondary Revolving Facility for the purposes of:
|
|
(i)
|
any
amendment, waiver or consent relating to the provisions of Clause 11
(Voluntary
Prepayment) and Clause 12 (Mandatory Prepayment and
Cancellation) except to the extent that such amendment, waiver or
consent expressly relates to the cancellation of C Facility Commitments or
the repayment of C Facility
Outstandings;
|
|
|
(ii)
|
any
amendment, waiver or consent relating to the provisions of Clause 23
(Financial
Condition);
|
|
|
(iii)
|
any
amendment, waiver or consent relating to Clause 27 (Events of Default)
including without limitation, the exercise of any rights under
Clause 27.17 (Acceleration) and/or
Clause 27.18 (Repayment on
Demand);
|
|
|
(iv)
|
the
making of any demand against any Guarantor (including, for the avoidance
of doubt, the Parent) pursuant to Clause 29 (Guarantee and
Indemnity);
|
|
|
(v)
|
the
exercise of any rights to crystallise, or require the Security Trustee to
crystallise, any floating charge created pursuant to any Security Document
or to enforce, or require the Security Trustee to enforce, any Encumbrance
created pursuant to any Security Document, any amendment, waiver or
consent relating to or any exercise of any other rights or benefits with
respect to, the Security whether contained in this Agreement or any other
Finance Document; and
|
|
|
(vi)
|
any
action to be taken by the Lenders to petition for (or vote in favour of
any resolution for) or initiate or support or take any steps with a view
to any insolvency, liquidation, reorganisation, administration or
dissolution proceedings or any voluntary arrangement or assignment for the
benefit of creditors or any similar proceedings involving the Parent or an
Obligor,
|
any C
Facility Commitments and any C Facility Outstandings shall be excluded from the
calculation of the requisite percentage under paragraph (a) or (b), in both
the numerator and the denominator of such calculation.
“Intellectual Property Rights”
means any patent, trade xxxx, service xxxx, registered design, trade name or
copyright or any license to use any of the same.
“Interest” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).
“Interest Cover Ratio” has the
meaning given to such term in paragraph (b) of Clause 23.2 (Ratio).
“Interest Period” means, save
as otherwise provided in this Agreement, any of those periods mentioned in
Clause 14.1 (Interest
Periods for Term Facility Advances).
“Intra-Group Services”
means:
|
|
(a)
|
the
sale of programming or other Content by any member(s) of the Group to one
or more members of the Bank Group on arms’ length
terms;
|
|
|
(b)
|
the
lease or sublease of office space, other premises or equipment on arms’
length terms by one or more members of the Bank Group to one or more
members of the Group or by one or more members of the Group to one or more
members of the Bank Group;
|
|
|
(c)
|
the
provision or receipt of other services, facilities or other arrangements
(in each case not constituting Financial Indebtedness) in the ordinary
course of business, by or from one or more members of the Bank Group to or
from one or more members of the Group including, without limitation,
(i) the employment of personnel, (ii) provision of employee
healthcare or other benefits, (iii) acting as agent to buy equipment,
other assets or services or to trade with residential or business
customers, and (iv) the provision of audit, accounting, banking, IT,
telephony, office, administrative, compliance, payroll or other similar
services provided that the consideration for the provision thereof is, in
the reasonable opinion of the Company, no less than Cost;
and
|
|
|
(d)
|
the
extension, in the ordinary course of business and on terms no less
favourable to the relevant member of the Bank Group than arms’ length
terms, by or to any member of the Bank Group to or by any such member of
the Group of trade credit not constituting Financial Indebtedness in
relation to the provision or receipt of Intra-Group Services referred to
in paragraphs (a), (b) or (c)
above.
|
“IRS Ruling” means the private
ruling from the US Internal Revenue Service being sought by NTL the effect of
which is to permit the cash portion of the purchase price for the Merger to be
financed through borrowings by members of the Group incorporated in England
& Wales without giving rise to materially adverse US tax consequences to
NTL, the Ultimate Parent or their respective shareholders whether prior to or
following the Merger.
“Joint Venture” means any joint
venture, partnership or similar arrangement between any member of the Bank Group
and any other person that is not a member of the Bank Group.
“Joint Venture Group” means any
Joint Venture and its subsidiaries from time to time (including upon and
following the Merger Closing Date, the UKTV Group).
“Law” means:
|
|
(a)
|
common
or customary law;
|
|
|
(b)
|
any
constitution, decree, judgment, legislation, order, ordinance, regulation,
statute, treaty or other legislative measure in any jurisdiction;
and
|
|
|
(c)
|
any
directive, regulation, practice, requirement which has the force of law
and which is issued by any governmental body, agency or department or any
central bank or other fiscal, monetary, regulatory, self-regulatory or
other authority or agency.
|
“L/C Bank” means the Original
L/C Bank and any other Lender which has been appointed as an L/C Bank in
accordance with Clause 5.11 (Appointment and Change of L/C
Bank) and which has not resigned in accordance with paragraph (c) of
Clause 5.11 (Appointment
and Change of L/C Bank).
“L/C Bank Accession
Certificate” means a duly completed accession certificate in the form set
out in Schedule 11 (Form of
L/C Bank Accession Certificate).
“L/C Proportion” means, in
relation to a Lender in respect of any Documentary Credit and save as otherwise
provided in this Agreement, the proportion (expressed as a percentage) borne by
such Lender’s Available RCF Facility Commitment to the Available RCF Facility
immediately prior to the issue of such Documentary Credit.
“Legal Opinions” means any of
the legal opinions referred to in paragraph 5 of Part 1 to Schedule 4
(Conditions Precedent to First
Utilisation), paragraph 6 of Part 2 to Schedule 4 (Conditions Precedent to First
Baseball Utilisation) and paragraph 2 of Part 2 to Schedule 7
(Accession Documents)
required to be delivered pursuant to Clause 3.1 (Vanilla Conditions
Precedent), Clause 3.2 (Baseball Conditions Precedent) and
Clause 26 (Acceding Group
Companies), respectively.
“Lender” means a person
(including each L/C Bank and each Ancillary Facility Lender) which:
|
|
(a)
|
is
named in Part 1 of Schedule 1 (Lenders and
Commitments);
|
|
|
(b)
|
has
become a party to this Agreement in accordance with the provisions of
Clause 37 (Assignments and
Transfers); or
|
|
|
(c)
|
has
become a party to this Agreement in accordance with the provisions of
Clause 2.7 (Alternative Bridge Facility
Refinancing),
|
which in
each case has not ceased to be a party to this Agreement in accordance with the
terms of this Agreement.
“Leverage Ratio” has the
meaning given to such term in paragraph (a) of Clause 23.2 (Ratios).
“LIBOR” means, in relation to
any amount to be advanced to or owed by an Obligor under this Agreement in a
currency (other than euro) on which interest for a given period is to
accrue:
|
|
(a)
|
the
rate per annum which appears on the Relevant Page for such period at or
about 11.00 a.m. on the Quotation Date for such period;
or
|
|
|
(b)
|
if
no such rate is displayed and the Facility Agent shall not have selected
an alternative service on which such rate is displayed as contemplated by
the definition of “Relevant Page”, the arithmetic mean (rounded upwards,
if not already such a multiple, to the nearest 5 decimal places) of the
rates (as notified to the Facility Agent) at which each of the Reference
Banks was offering to prime banks in the London interbank market deposits
in the relevant currency for such period at or about 11.00 am on the
Quotation Date for such period.
|
“Major Event of Default” means
an Event of Default arising under any of the following provisions:
(a) Clause 27.1
(Non-Payment);
(b) Clause 27.2
(Covenants);
(c) Clause 27.5
(Cross-Default);
(d) Clause 27.6
(Insolvency);
(e) Clause 27.7
(Winding-Up);
(f) Clause 27.8
(Execution or
Distress);
(g) Clause 27.9
(Similar
Events);
(h) Clause 27.10
(Repudiation);
(i) Clause 27.11
(Illegality);
(j) Clause 27.12
(Intercreditor
Default); and
(k) Clause 27.14
(Material Adverse
Effect).
“Margin Stock” shall have the
meaning provided in Regulation U.
“Marketable Securities” means
any security which is listed on any publicly recognised stock exchange and which
has, or is issued by a company which has, a capitalisation of not less than £1
billion (or its equivalent in other currencies) as at the time such Marketable
Securities are acquired by any member of the Bank Group by way of consideration
for any disposal permitted under Clause 25.6 (Disposals).
“Material Adverse Effect” means
a material adverse change in:
|
|
(a)
|
the
financial condition, assets or business of the Obligors (taken as a
whole); or
|
|
|
(b)
|
the
ability of any Obligor to perform and comply with its payment or other
material obligations under any Finance Document (taking into account the
resources available to such Obligor from any other member of the Bank
Group).
|
“Material Subsidiary” means, at
any time, a member of the Bank Group whose contribution to Consolidated
Operating Cashflow (on a consolidated basis if it has Subsidiaries) represents
at least 5% of the Consolidated Operating Cashflow calculated by reference to
the most recent financial statements of the Bank Group delivered pursuant to
paragraph (b)(ii) of Clause 22.1 (Financial
Statements).
“Maturing Advance” has the
meaning ascribed to it in Clause 8.2 (Rollover
Advances).
“Member State” means a member
of the European Community.
“Merger” means the merger of
NTL with Merger Sub pursuant to the terms and conditions of the Merger Agreement
and the reorganisation, recapitalisation and refinancing of the Group in
connection therewith in accordance with the Steps Paper.
“Merger Agreement” means the
agreement and plan of merger dated as of 2 October 2005 (as amended and restated
on 14 December 2005 and 30 January 2006) made between NTL, the Ultimate Parent
and the Merger Sub.
“Merger Closing Date” means the date
on which the Merger is completed in accordance with, and subject to the terms
and conditions of the Merger Agreement.
“Merger Documents” means the
Merger Agreement (including the Company Disclosure Schedule and the Parent
Disclosure Schedule, each as defined therein, and attached thereto), and all
other documents and agreements executed or to be executed pursuant to (or in
connection with) the Merger Agreement and any other document designated as a
“Merger Document” by the Facility Agent and the Ultimate Parent.
“Merger Indebtedness” means
Financial Indebtedness by the Ultimate Parent (or a newly incorporated
wholly-owned subsidiary of the Ultimate Parent) in an amount not exceeding the
equity value of the Telewest Group provided that the proceeds of
such Financial Indebtedness shall be contributed by the Ultimate Parent (or the
newly incorporated wholly-owned subsidiary of the Ultimate Parent, as
applicable) to one or more of its Subsidiaries for the purpose of enabling such
Subsidiaries to purchase the historical Telewest business as part of an internal
reorganisation of subsidiaries of Telewest in accordance with the Steps Paper
and provided further
that such Financial Indebtedness will be repaid by the Ultimate Parent
(or such newly incorporated wholly owned subsidiary of the Ultimate Parent) on
the same day on which it is incurred.
“Merger Sub” means Neptune
Bridge Borrower, LLC, a Delaware limited liability company, which has been
established for the purposes of the Merger in accordance with the terms and
conditions of the Merger Agreement.
“Xxxxx’x” means Xxxxx’x
Investor Services, Inc. or any successor thereof.
“Multiemployer Plan” shall mean
any multiemployer plan as defined in Section 4001(a)(3) of ERISA, which is
maintained or contributed to by (or to which there is an obligation to
contribute of) any member of the Group or an ERISA Affiliate, and each such plan
for the five year period immediately following the latest date on which any
member of the Group or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
“Necessary Authorisations”
means all Authorisations (including Environmental Licences and any
Authorisations issued pursuant to or any deemed Authorisations under any
Statutory Requirements) of any person including any government or other
regulatory authority required by applicable Law to enable it to:
|
|
(a)
|
lawfully
enter into and perform its obligations under the Finance Documents to
which it is party;
|
|
|
(b)
|
ensure
the legality, validity, enforceability or admissibility in evidence in
England and, if different, its jurisdiction of incorporation or
establishment, of such Finance Documents to which it is party;
and
|
|
|
(c)
|
carry
on its business from time to time.
|
“Net Proceeds”
means:
|
|
(a)
|
any
cash proceeds received by any member of the Bank Group (including, when
received, any cash proceeds received by way of deferred instalment of
purchase price or from the sale of Cash Equivalent Investments or
Marketable Securities acquired by any member of the Bank Group in
consideration for any Disposal as contemplated under Clause 25.6
(Disposals)) in
connection with any Disposal after
deducting:
|
|
|
(i)
|
all
taxes paid or reasonably estimated by such member of the Bank Group to be
payable by any member of the Bank Group as a result of that
Disposal;
|
|
|
(ii)
|
all
reasonable fees, commissions costs and expenses incurred by such member of
the Bank Group in arranging or effecting that Disposal, including, without
limitation, any amount required to be paid by any member of the Bank Group
to any proprietor of any intellectual property rights (not being a member
of the Bank Group) (including intellectual property licences) related to
the assets disposed of where such payment is on arms’ length terms and is
required to enable such intellectual property rights to be transferred
with such assets to the extent necessary to facilitate the applicable
Disposal;
|
|
|
(iii)
|
in
the case of a Disposal effected by a member of the Bank Group other than a
Borrower, such provision as is reasonable for all costs and taxes (after
taking into account all available credits, deductions and allowances)
incurred by the Bank Group to a person other than a member of the Bank
Group and fairly attributable to up-streaming the cash proceeds to a
Borrower or making any distribution in connection with such proceeds to
enable them to reach a Borrower;
|
|
|
(iv)
|
any
cash proceeds which are to be applied towards discharging any Encumbrance
over such asset; and
|
|
|
(v)
|
in
the case of a Disposal of a non-wholly-owned Subsidiary or Joint Venture,
to the extent received by any member of the Bank Group, any cash proceeds
attributable to any interest in such Subsidiary or Joint Venture owned by
any person other than a member of the Bank Group;
and
|
|
|
(b)
|
the
cash proceeds received by any member of the Bank Group of any claim for
loss or destruction of or damage to the property of a member of the Bank
Group under any insurance policy after deducting any such proceeds
relating to the third party claims which are applied towards meeting such
claims and any reasonable costs incurred in recovering the
same.
|
“New Equity” means a
subscription for capital stock of the Ultimate Parent or any other form of
equity contribution to the Ultimate Parent previously agreed by the Facility
Agent (acting reasonably) in writing, in each case, where such subscription or
contribution does not result in a Change of Control.
“New High Yield Notes” means
the $550,000,000 9.125% Senior Notes due 2016 issued by the Parent on
25 July, 2006.
“New High Yield Offering” means
the offering of the New High Yield Notes.
|
|
“Non-Bank Group Serviceable
Debt” means:
|
|
|
(a)
|
Financial
Indebtedness arising under the Bridge Facility Agreement or the
Alternative Bridge Facility (or the Exchange Notes, as applicable) or the
New High Yield Notes, the Existing High Yield Notes, the Additional High
Yield Notes or any High Yield
Refinancing;
|
|
|
(b)
|
Financial
Indebtedness arising under any Guaranteed Parent Debt;
and
|
|
|
(c)
|
any
other Financial Indebtedness which is raised by any member of the Group
which is not a member of the Bank Group, (i) where the Company has
provided not less than 5 Business Days’ prior written notice to the
Facility Agent designating such Financial Indebtedness as Non-Bank Group
Serviceable Debt, and (ii) the proceeds of which are contributed into the
Bank Group in accordance with the provisions of Clause 24.15 (Contributions to the Bank
Group),
|
in the
case of paragraph (c), to the extent only of the principal amounts so
designated at the relevant time and provided that any Non-Bank Group Serviceable
Debt shall thereafter at all times remain Non-Bank Group Serviceable
Debt.
“Non-Bank Group UK Taxpayer”
means any company that is (a) a Subsidiary of the Ultimate Parent,
(b) within the charge to UK corporation tax, and (c) not a member of
the Bank Group.
“Non-Consenting Lender” is a
Lender which does not agree to a consent to an amendment to, or a waiver of, any
provision of the Finance Documents where:
|
|
(a)
|
the
Company or the Facility Agent has requested the Lenders to consent to an
amendment to, or waiver, of any provision of the Finance
Documents;
|
|
|
(b)
|
the
consent or amendment in question requires the agreement of all Lenders
affected thereby;
|
|
|
(c)
|
Lenders
representing not less than 80% of the Commitments or Outstandings, as the
case may be, have agreed to such consent or amendment;
and
|
|
|
(d)
|
the
Company has notified the Lender it will treat it as a Non-Consenting
Lender.
|
“Non-Funding Lender” is
either:
(a) a
Lender which fails to comply with its obligation to participate in any Advance
where:
|
|
(i)
|
all
conditions to the relevant Utilisation (including without limitation,
delivery of a Utilisation Request) have been satisfied or waived by an
Instructing Group (or with respect to the A1 Facility and the B1 Facility,
a Baseball Instructing Group) in accordance with the terms of this
Agreement;
|
|
|
(ii)
|
Lenders
representing not less than 80% of the relevant Commitments have agreed to
comply with their obligations to participate in such Advance;
and
|
|
|
(iii)
|
the
Company has notified the Lender that it will treat it as a Non-Funding
Lender; or
|
|
|
(b)
|
a
Lender which has given notice to a Borrower or the Facility Agent that it
will not make, or it has disaffirmed or repudiated any obligation to
participate in, an Advance.
|
“Notes” means the Short Term
Notes or the Eurobond as applicable.
“Notes Engagement Letter” means
the letter dated 3 March 2006 from the Bookrunners to NTL and the Company in
relation to the commitment of the Bookrunners to arrange and underwrite the New
High Yield Notes.
“NTL” means Virgin Media
Holdings Inc. (formerly known as NTL Holdings Inc.), a Delaware corporation,
whose registered office is at 909 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000,
Xxxxxx Xxxxxx xx America.
“NTL Group” means NTL and its
Subsidiaries from time to time. For information purposes only, the
members of the NTL Group as at the Original Execution Date are listed in Part 3
of Schedule 9 (Members of the
NTL Group).
“NTL South Herts” means NTL
(South Hertfordshire) Limited (formerly known as Cable & Wireless
Communications (South Hertfordshire) Limited), a company incorporated in England
and Wales with registered number 2401044.
“Obligors” means the Borrowers
and the Guarantors and “Obligor” means any of
them.
“Obligors’ Agent” means the
Company in its capacity as agent for the Parent and the Obligors (other than the
US Borrower), pursuant to Clause 30.18 (Obligors’
Agent).
“Option A Alternative Bridge Facility
Refinancing” has the meaning given to such term in the definition of
“New High Yield
Notes”.
“Optional Currency” means, in
relation to any Advance, any currency other than euro, Dollars and Sterling
which:
|
|
(a)
|
is
readily available to banks in the London interbank market, and is freely
convertible into Sterling on the Quotation Date and the Utilisation Date
for the relevant Advance; and
|
|
|
(b)
|
has
been approved by the Facility Agent (acting on the instructions of all the
Lenders) on or prior to receipt by the Facility Agent of the relevant
Utilisation Request.
|
“Option B Alternative Bridge Facility
Refinancing” has the meaning given to such term in the definition of
“New High Yield
Notes”.
“Original Execution Date” means
3 March 2006.
“Original Financial Statements”
means:
|
|
(a)
|
in
relation to NTL the audited consolidated financial statements of the NTL
Group for the financial year ended 31 December 2005;
and
|
|
|
(b)
|
in
relation to the Ultimate Parent, the audited consolidated financial
statements of the Telewest Group for the financial year ended 31 December
2005.
|
“Original Guarantor” means each
of the companies and partnerships listed in Part 1 of Schedule 2 (The Original Guarantors), which
in each case has not ceased to be a party to this Agreement in accordance with
the terms of this Agreement.
“Original Obligors” means the
UK Borrowers, the US Borrower and the Original Guarantors
“Outstanding L/C Amount”
means:
|
|
(a)
|
each
sum paid or payable by an L/C Bank to a Beneficiary pursuant to the terms
of a Documentary Credit; and
|
|
|
(b)
|
all
liabilities, costs (including, without limitation, any costs incurred in
funding any amount which falls due from an L/C Bank under a
Documentary Credit), claims, losses and expenses which an L/C Bank (or any
of the Indemnifying Lenders) incurs or sustains in connection with a
Documentary Credit,
|
in each
case which has not been reimbursed or in respect of which cash cover has not
been provided by or on behalf of a relevant Borrower.
“Outstandings” means, at any
time, the Term Facility Outstandings, the Revolving Facility Outstandings, the
Secondary Revolving Facility Outstandings and any Ancillary Facility
Outstandings.
“Parent Debt” means any
Financial Indebtedness of the Ultimate Parent or one or more of its Subsidiaries
(other than a member of the Bank Group).
“Parent Intercompany Debt”
means any Financial Indebtedness owed by any member of the Bank Group to the
Ultimate Parent or to its Subsidiaries (other than another member of the Bank
Group) from time to time which is subordinated to the Facilities pursuant to the
terms of the Group Intercreditor Agreement.
“Parent Refinancing
Indebtedness” means any Parent Debt incurred to refinance all or any part
of the Outstandings including the payment of all principal, interest, fees,
expenses, commissions, make-whole and any other contractual premium payable, in
respect of such Outstandings and any fees, costs and expenses incurred in
connection with such refinancing.
“Participating Employers” means
the Company and any members of the Group which participate or have at any time
participated in a UK Pension Scheme.
“Participating Member State”
means any member of the European Community that at the relevant time has adopted
the euro as its lawful currency in accordance with legislation of the European
Community relating to Economic and Monetary Union.
“Paydown Event” means the
earliest date, on or before the Paydown Event Deadline, on which 20% or more of
the A Facility Outstandings and the A1 Facility Outstandings as at the Sixth
Amendment Record Date (and, for the avoidance of doubt, including any such A
Facility Outstandings and A1 Facility Outstandings subsequently transferred to
the A2 Facility or the A3 Facility pursuant to Clause 2.3 (Roll Effective Date)) (the
“Paydown Amount”) have
been irrevocably prepaid pursuant to Clause 11 (Voluntary Prepayment) or
Clause 12 (Mandatory
Prepayment and Cancellation) in accordance with the terms of this
Agreement.
“Paydown Event Deadline” means
the later of (i) 30 April 2009, (ii) the date falling six months after the Roll
Effective Date (the “Six-Month
Roll Date”), and (iii), if the Company has served notice 10 Business Days
prior to the Six-Month Roll Date to the Facility Agent that it wishes to extend
such deadline and, no later than the Six-Month Roll Date, has paid a fee of
0.10% of the A2 Facility Outstandings, A3 Facility Outstandings and Secondary
Revolving Facility Outstandings, to the Lenders of such A2 Facility
Outstandings, A3 Facility Outstandings and Secondary Revolving Facility
Outstandings on the day such payment is made on or after the date of such
notice, the later of (a) 31 July 2009 and (b) the date falling nine months after
the Roll Effective Date.
“PBGC” means the Pension
Benefit Guaranty Corporation established pursuant to section 4002 of ERISA, or
any successor to it.
“Pensions Regulator” means the
body corporate established under Part 1 of the Pensions Act 2004.
“Permitted Auditors” means any
of Pricewaterhouse Coopers, Ernst & Young, Deloitte & Touche or KPMG or
any of their respective successors or any other internationally recognised firm
of accountants.
“Permitted Holders” shall mean
any person who, together with any of its Affiliates, is the “beneficial owner”
(as defined in Rule 13d-3 and 13d-5 under the Exchange Act) of 5% or more of the
outstanding Voting Stock of the Ultimate Parent on the Original Execution Date
or becomes such a holder as a result of the Baseball Acquisition or the
Alternative Baseball Acquisition and any Affiliates of such persons from time to
time.
“Permitted Joint Ventures”
means any Joint Venture permitted under Clause 25.9 (Joint Ventures) that the
Company designates as such by giving notice in writing to the Facility
Agent.
“Permitted Payments”
means:
|
|
(a)
|
the
payment of any dividend, payment, loan or other distribution, or the
repayment of a loan or the redemption of loan stock or redeemable equity
made, at any time, to fund the payment of expenses (including taxes and
the buy back of stock from employees) by any member of the Group the
aggregate amount of such payments being no greater than (i) £50 million
(or its equivalent) for the period from the Merger Closing Date to the
first anniversary thereof, (ii) £50 million (or its equivalent) for
the period from the first anniversary of the Merger Closing Date to the
second anniversary of the Merger Closing Date, or (iii) thereafter
£35 million (or its equivalent) in each anniversary
year;
|
|
|
(b)
|
the
payment of any dividend, payment, loan or other distribution, or the
repayment of a loan, or the redemption of loan stock or redeemable equity,
in each case, which is required in order to facilitate the making of
payments by any member of the Group and to the extent
required:
|
(i) by the terms of the Finance
Documents;
|
|
(ii)
|
by
the terms of the Bridge Finance Documents, the Exchange Notes, the
Existing High Yield Notes, the New High Yield Notes, the Additional High
Yield Notes, any High Yield Refinancing (or in each case, any guarantee of
the obligations thereunder) to the extent such payment is permitted or not
prohibited by the terms of the HYD Intercreditor Agreement or other
applicable intercreditor agreement, other than any payments in relation to
any fees, costs, expenses, commissions or other payments required to be
made in respect of any amendment, consent or waiver in respect
thereof;
|
|
|
(iii)
|
by
the terms of any Guaranteed Parent
Debt;
|
|
|
(iv)
|
by
the terms of any agreements for Financial Indebtedness which constitutes
Non-Bank Group Serviceable Debt falling within paragraph (c) of the
definition thereof;
|
|
|
(v)
|
by
the terms of any Hedging Agreement entered into by a member of the Group
relating to currency or interest rate hedging of Financial Indebtedness
referred to in sub-paragraphs (i) to (iv) above and which is not
entered into for investment or speculative
purposes;
|
|
|
(vi)
|
by
the purposes of implementing the steps expressly contemplated by the Steps
Paper;
|
|
|
(vii)
|
by
the purposes of implementing any Content Transaction or Business Division
Transaction;
|
|
|
(viii)
|
by
the terms of the Notes; or
|
|
|
(ix)
|
by
the terms of any Subordinated Funding to the extent required to facilitate
any Permitted Payments,
|
where, in
the case of sub-paragraphs (i) to (ix), the payment under the relevant
indebtedness or obligation referred to therein has fallen due or will fall due
within five Business Days of such Permitted Payment being made;
|
|
(c)
|
any payment of any
dividend, payment, loan or other distribution, or the repayment of a loan,
or the redemption of loan stock or redeemable equity made to any member of
the Group (other than a member of the Bank Group), provided
that:
|
|
|
(i)
|
an
amount equal to such payment is promptly re-invested by such member of the
Group (other than the Bank Group) into a member of the Bank
Group;
|
|
|
(ii)
|
the
aggregate principal amount of such payments and re-invested amounts on any
day does not exceed £50 million (or its equivalent in other currencies);
and
|
|
|
(iii)
|
to
the extent any such payments are made in cash, any re-invested amounts are
also made in cash;
|
|
|
(d)
|
any
payment of
any dividend, payment, loan or other distribution, or the repayment of a
loan, or the redemption of loan stock or redeemable equity made in order
to enable payments of dividends or distributions
by the Ultimate Parent to its shareholders or the repurchase of capital
stock of the Ultimate Parent:
|
|
|
(i)
|
in
an amount of up to £10 million per annum plus, at any time after 1 January
2007, an additional amount per annum, up to the maximum amount specified
below determined by reference to the Leverage Ratio immediately prior to
the declaration of such dividend or the making of such payment, loan or
other distribution (calculated on a pro forma basis after giving effect to
such payment) in accordance with the following
table:
|
|
Leverage
Ratio
|
Maximum
Amount Per
Annum
|
||
|
Greater
than 3.75x
|
£100
million
|
||
|
Less
than or equal to 3.75x
|
No
Limit
|
|
|
(ii)
|
in
an amount of up to £200 million from the cash proceeds of a Content
Transaction; and
|
|
|
(iii)
|
in
an amount of up to £200 million from the cash proceeds of a Business
Division Transaction provided that the Leverage Ratio immediately prior to
the declaration of such dividend or the making of such payment, loan or
other distribution is less than
4.0:1,
|
in each
case, provided always that no Event of Default has occurred or is continuing or
would result following such payment;
|
|
(e)
|
any
payments made pursuant to and in accordance with the Tax Cooperation
Agreement, provided that:
|
|
|
(i)
|
a
copy of the certification or filings referred to in clause 5 of the
Tax Cooperation Agreement, as the case may be, shall have been provided to
the Facility Agent not less than five Business Days before such payment is
to be made; and
|
|
|
(ii)
|
any
payments made to any Holding Company of VMIH for the purposes of settling
any liabilities owed to the United States Internal Revenue Service which
have arisen following delivery of a Structure Notice and implementation of
the relevant steps set out in the Steps Paper, in reliance upon the
Structure 2 Opinions:
|
|
|
(A)
|
at
any time prior to and including 31 December 2009, shall not be made
without the prior written consent of an Instructing Group;
or
|
|
|
(B)
|
at
any time on or after 1 January 2010, may be made in an amount not
exceeding £185 million from cash reserves of the Bank Group and in respect
of any amount in excess of £185 million
from:
|
|
|
(i)
|
any
Net Proceeds which is not required to be applied in or towards prepayment
of the Outstandings pursuant to paragraph (a) of Clause 12.2
(Repayment from Net
Proceeds);
|
|
|
(ii)
|
any
Excess Cash Flow which is not required to be applied in or towards
prepayment of the Outstandings pursuant to paragraph (a) of
Clause 12.4 (Repayment from Excess Cash
Flow);
|
|
|
(iii)
|
any
Debt Proceeds which is not required to be applied in or towards prepayment
of the Outstandings pursuant to paragraph (a) of Clause 12.5
(Repayment from Debt
Proceeds);
|
|
|
(iv)
|
any
Equity Proceeds which is not required to be applied in or towards
prepayment of the Outstandings pursuant to paragraph (a) of
Clause 12.6 (Repayment from Equity
Proceeds); or
|
|
|
(v)
|
the
proceeds of any Parent Intercompany Debt or the proceeds of any Equity
Equivalent Funding,
|
and
provided always that immediately prior to and immediately after such payment,
the Bank Group remains in compliance with the financial covenants set out in
Clause 23.2 (Ratios) as applicable for the
Quarter Date falling immediately prior to such payment and calculated
on a pro forma basis after giving effect to such payment;
|
|
(f)
|
the
payment of preference distributions in accordance with the terms and
conditions of the outstanding redeemable preference shares of Sit-up
provided that the aggregate amount of all such preference distributions
paid in any financial year shall not exceed £1,000 and any payment with
respect to the purchase or redemption by any member of the Group of all or
any portion of the outstanding redeemable preference shares of Sit-up
pursuant to the terms of the Sit-up Acquisition Documents (including any
such payment as may be permitted under the articles of association of
Sit-up); or
|
|
|
(g)
|
any
payment of any dividend, payment, loan or other distribution, or the
repayment of a loan, or the redemption of loan stock or redeemable equity
made pursuant to an Asset Passthrough or a Funding Passthrough, in each
case, funded solely from cash generated by entities outside of the Bank
Group.
|
“Plan” means any pension plan
as defined in section 3(2) of ERISA, which (i) is maintained or contributed to
by (or to which there is an obligation to contribute by) any member of the Group
or an ERISA Affiliate, and each such plan for the 5 year period immediately
following the latest date on which any member of the Group or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan and
(ii) is subject to ERISA, but excluding any Multiemployer Plan.
“Prepayment Premium” has the
meaning given to such term in Clause 11.1 (Voluntary
Prepayment).
“Project Company” means a
Subsidiary of a company (or a person in which such company has an interest)
which has a special purpose and whose creditors have no recourse to any member
of the Bank Group in respect of Financial Indebtedness of that Subsidiary or
person, as the case may be, or any of such Subsidiary’s or person’s Subsidiaries
(other than recourse to such member of the Bank Group who had granted an
Encumbrance over its shares or other interests in such Project Company
beneficially owned by it provided that such recourse is limited to an
enforcement of such an Encumbrance).
“Proportion” in relation to a
Lender, means:
|
|
(a)
|
in
relation to an Advance to be made under this Agreement, the proportion
borne by such Lender’s Available Commitment in respect of the relevant
Facility, the relevant Borrower and the relevant currency to the relevant
Available Facility;
|
|
|
(b)
|
in
relation to an Advance or Advances outstanding under this Agreement, the
proportion borne by such Lender’s share of the Sterling Amount of such
Advance or Advances to the total Sterling Amount
thereof;
|
|
|
(c)
|
if
paragraph (a) does not apply and there are no Outstandings, the
proportion borne by the aggregate of such Lender’s Available Commitment to
the Available Facilities (or if the Available Facilities are then zero, by
its Available Commitment to the Available Facilities immediately prior to
their reduction to zero); and
|
|
|
(d)
|
if
paragraph (b) does not apply and there are any Outstandings, the
proportion borne by such Lender’s share of the Sterling Amount of the
Outstandings to the Sterling Amount of all the Outstandings for the time
being.
|
“Protected Party” means a
Finance Party or any Affiliate of a Finance Party which is or will be, subject
to any Tax Liability in relation to any amount payable under or in relation to a
Finance Document.
“Qualifying UK Lender” means in
relation to a payment of interest on a participation in an Advance to a UK
Borrower, a Lender which is:
|
|
(a)
|
a
UK Bank Lender;
|
|
|
(b)
|
a
UK Non-Bank Lender; or
|
|
|
(c)
|
a
UK Treaty Lender.
|
“Quarter Date” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).
“Quotation Date” means, in
relation to any currency and any period for which an interest rate is to be
determined:
|
|
(a)
|
if
the relevant currency is Sterling, the first day of that
period;
|
|
|
(b)
|
if
the relevant currency is euro, 2 TARGET Days before the first day of that
period; or
|
|
|
(c)
|
in
relation to any other currency, 2 Business Days before the first day of
that period,
|
provided
that if market practice differs in the Relevant Interbank Market for a currency,
the Quotation Date for that currency will be determined by the Facility Agent in
accordance with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Date will be the last of those
days).
“RCF Facility” means the
Revolving Facility and the Secondary Revolving Facility.
“RCF Facility Instructing
Group” means:
|
|
(a)
|
before
any Utilisation of the RCF Facility under this Agreement, a Lender or
group of Lenders whose Available RCF Facility Commitments amount in
aggregate to more than 662/3% of
the Available RCF Facility; and
|
|
|
(b)
|
thereafter,
a Lender or group of Lenders to whom in aggregate more than 662/3% of
the aggregate amount of the RCF Facility Outstandings are (or if there are
no RCF Facility Outstandings at such time, immediately prior to their
repayment, were then) owed,
|
in each
case calculated in accordance with the provisions of Clause 43.9 (Calculation of
Consents).
“RCF Facility Outstandings”
means the Revolving Facility Outstandings and the Secondary Revolving Facility
Outstandings.
“Redemption Consideration”
means the $16.25 cash consideration payable in respect of each of the Ultimate
Parent’s common stock that the Ultimate Parent’s shareholders will receive in
the Merger.
“Reference Banks” means the
principal London offices of Barclays Bank plc, Citigroup and The Bank of New
York or such other bank or banks as may be appointed as such by the Facility
Agent after consultation with the Company.
“Regulation T” shall mean
Regulation T of the Board of Governors of the Federal Reserve System as from to
time in effect and any successor to all or any portion thereof.
“Regulation U” shall mean
Regulation U of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion
thereof.
“Regulation X” shall mean
Regulation X of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or any portion
thereof.
“Relevant Interbank Market”
means, in relation to euro, the European Interbank Market and in relation to any
other currency, the London interbank market therefor.
“Relevant Page” means the page
of the Reuters or Telerate screen on which is displayed in relation to LIBOR,
BBA LIBOR for the relevant currency, or, in relation to EURIBOR, the European
offered rates for euro, or, if such page or service shall cease to be available,
such other page or service which displays the London interbank offered rates for
the relevant currency as the Facility Agent, after consultation with the Lenders
and the Company, shall select.
“Relevant Tax Jurisdiction”
means:
|
|
(a)
|
the
United Kingdom, in relation to a UK
Borrower;
|
|
|
(b)
|
the
United States of America, in relation to the US Borrower;
and
|
|
|
(c)
|
any
jurisdiction in which any person is liable to tax by reason of its
domicile, residence, place of management or other similar criteria (but
not any jurisdiction in respect of which that person is liable to tax by
reason only of its having a source of income in that
jurisdiction).
|
“Renewal Request” means, in
relation to a Documentary Credit, a Utilisation Request therefor, in respect of
which the proposed Utilisation Date stated in it is the Expiry Date of an
existing Documentary Credit and the proposed Sterling Amount is the same or less
than the Sterling Amount of that existing Documentary Credit.
“Repayment Date”
means:
|
|
(a)
|
in
relation to any Revolving Facility Advance or Secondary Revolving Facility
Advance, the last day of its Term;
|
|
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(b)
|
in
respect of the A Facility Outstandings and the A1 Facility Outstandings
and, prior to a Paydown Event, the A2 Facility Outstandings and the A3
Facility Outstandings, (i) each of the dates specified in
Clause 9.1 (Repayment of A Facility
Outstandings, A1 Facility Outstandings, A2 Facility Outstandings and
A3 Facility Outstandings) as an Amortisation Repayment Date in
respect of the relevant Term Facility Outstandings and (ii) the
relevant Final Maturity Date, and
|
|
|
(c)
|
in
respect of the Additional Facility Outstandings, B1 Facility Outstandings,
the B2 Facility Outstandings, the B3 Facility Outstandings, the B4
Facility Outstandings, the B5 Facility Outstandings, the B6 Facility
Outstandings, the B7 Facility Outstandings, the B8 Facility Outstandings,
the B9 Facility Outstandings, the B10 Facility Outstandings, the B11
Facility Outstandings, the B12 Facility Outstandings and the C Facility
Outstandings and, after a Paydown Event, the A2 Facility Outstandings and
the A3 Facility Outstandings, the relevant Final Maturity
Date,
|
provided
that if any such day is not a Business Day in the relevant jurisdiction for
payment, the Repayment Date will be the next succeeding Business Day in the then
current calendar month (if there is one) or the preceding Business Day (if there
is not).
“Repayment Instalment” means,
in respect of the A Facility Outstandings, the A1 Facility Outstandings, the A2
Facility Outstandings and the A3 Facility Outstandings, the amounts required to
be paid by way of repayment on each Repayment Date.
“Repeating Representations”
means the representations and warranties set out in Clauses 21.2 (Due Organisation), 21.5
(No Immunity), 21.6
(Governing Law and
Judgments), 21.7 (All
Actions Taken), 21.9 (Binding Obligations), 21.10
(No Winding Up), 21.11
(No Event of Default),
21.18 (Execution of Finance
Documents), 21.27 (Investment Company Act),
21.28 (Margin Stock),
21.34 (US Patriot Act)
and 21.36 (Compliance with
ERISA).
“Reservations”
means:
|
|
(a)
|
the
principle that equitable remedies are remedies which may be granted or
refused at the discretion of the court, the limitation of enforcement by
laws relating to bankruptcy, insolvency, liquidation, reorganisation,
court schemes, moratoria, administration and other laws generally
affecting the rights of creditors, the time barring of claims under any
applicable law, the possibility that an undertaking to assume liability
for or to indemnify against non-payment of any stamp duty or other tax may
be void, defences of set-off or counterclaim and similar
principles;
|
|
|
(b)
|
anything
analogous to any of the matters set out in paragraph (a) above under
any laws of any applicable
jurisdiction;
|
|
|
(c)
|
the
reservations in or anything disclosed by any of the Legal
Opinions;
|
|
|
(d)
|
any
circumstance arising through a failure to obtain any consent from the
lenders under the Existing Credit Facilities or the Existing Baseball
Facilities to (i) the execution of the Finance Documents, (ii) the
exercise of any rights or the performance of any obligations under the
Finance Documents or (iii) any other matter contemplated by the Finance
Documents; and
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|
|
(e)
|
any
circumstance arising through a failure to obtain any consent from any
lessor, licensor or other counterparty whose consent is required to the
grant of any Security over any lease, licence or other agreement or
contract on or before the execution of a Security
Document.
|
“Restricted Guarantors”
means:
|
|
(a)
|
each
of the Original Guarantors listed in Part 2 of Schedule 2 (The Restricted
Guarantor); and
|
|
|
(b)
|
any
other Guarantor that accedes to this Agreement pursuant to
Clause 26.2 (Acceding Guarantors),
which is (i) incorporated, created or organised under the laws of the
United States of America or any State of the United States of America
(including the District of Columbia) and is a “United States person” (as
defined in Section 7701(a)(30) of the Code); or (ii) treated for US
federal income tax purposes as a disregarded entity that is a branch of a
Guarantor described in sub-paragraph (b)(i)
hereof.
|
“Restricted Party” means any
person listed in the Annex to the Executive Order referred to in the definition
of “Anti-Terrorism Laws” or on the “Specially Designated Nationals and Blocked
Persons” list maintained by the Office of Foreign Assets Control of the United
States Department of the Treasury;
“Revolving Facility” means the
revolving loan facility (including any Ancillary Facility and the Documentary
Credit facility) granted to the relevant Borrower pursuant to
Clause 2.1(j)(i) (The
Facilities).
“Revolving Facility Margin”
means, in relation to Revolving Facility Advances and subject to
Clause 13.3 (Margin
Ratchet for Revolving Facility Advances and, Prior to a Paydown Event, Secondary
Revolving Facility Advances), 1.875% per annum.
“Revolving Facility
Outstandings” means, at any time, the aggregate outstanding amount of
each Revolving Facility Advance and of each Revolving Lenders Participation in
an Outstanding L/C Amount.
“Roll Consent” means, with
respect to a Lender, that such Lender has consented, pursuant to
Clause 43.4 (Consents), in a form and
substance acceptable to the Facility Agent, with respect to such Lender’s
A Facility Commitments and A Facility Outstandings, A1 Facility
Commitments and A1 Facility Outstandings, B1 Facility Commitments and B1
Facility Outstandings, B2 Facility Commitments and B2 Facility
Outstandings, B3 Facility Commitments and B3 Facility Outstandings,
B4 Facility Commitments and B4 Facility Outstandings, B5 Facility
Commitments and B5 Facility Outstandings, B6 Facility Commitments and B6
Facility Outstandings and Revolving Facility Commitments and Revolving Facility
Outstandings becoming A2 Facility Commitments and A2 Facility Outstandings,
A3 Facility Commitments and A3 Facility Outstandings, B7 Facility
Commitments and B7 Facility Outstandings, B8 Facility Commitments and B8
Facility Outstandings, B9 Facility Commitments and B9 Facility
Outstandings, B10 Facility Commitments and B10 Facility Outstandings,
B11 Facility Commitments and B11 Facility Outstandings, B12 Facility
Commitments and B12 Facility Outstandings and Secondary Revolving Facility
Commitments and Secondary Revolving Facility Outstandings,
respectively.
“Roll Effective Date” means 10
November 2008.
“Rollover Advance” has the
meaning ascribed to it in Clause 8.2 (Rollover
Advances).
“Screenshop” means Screenshop
Limited, a company incorporated under the laws of England and Wales with
registered number 3529106.
“Screenshop Intra-Group Loan
Agreement” means the loan agreement dated 10 May 2005 between
Screenshop and Flextech Broadband Limited.
“SEC” means the United States
Securities and Exchange Commission.
“Second Amendment Effective
Date” has the meaning given to it in an amendment letter dated 10 July
2006 between the Ultimate Parent, VMIH, the US Borrower and the Facility
Agent.
“Secondary Revolving Facility”
means the revolving loan facility (including any Ancillary Facility and the
Documentary Credit facility) granted to the relevant Borrower pursuant to
Clause 2.1(j)(ii) (The
Facilities).
“Secondary Revolving Facility
Margin” means, in relation to the Secondary Revolving Facility Advances,
(a) until the occurrence of a Paydown Event, subject to Clause 13.3
(Margin Ratchet for Revolving
Facility Advances and, Prior to a Paydown Event, Secondary Revolving Facility
Advances), 1.875% per annum, and (b) on the date of a Paydown Event
and thereafter, subject to Clause 13.4 (Margin Ratchet for Secondary
Revolving Facility Advances on and after a Paydown Event), 3.125% per
annum.
“Secondary Revolving Facility
Outstandings” means, at any time, the aggregate outstanding amount of
each Secondary Revolving Facility Advance and of each Secondary Revolving
Facility Lender’s participation in an Outstanding L/C Amount.
“Security” means the
Encumbrances created or purported to be created pursuant to the Security
Documents.
“Security Documents”
means:
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|
(a)
|
each
of the Initial Security Documents and the Subsequent Security
Documents;
|
|
|
(b)
|
any
security documents required to be delivered by an Acceding Obligor
pursuant to Clauses 26.1 (Acceding Borrowers) and
26.2 (Acceding
Guarantors);
|
|
|
(c)
|
any
other document executed at any time by any member of the Group conferring
or evidencing any Encumbrance for or in respect of any of the obligations
of the Obligors under this Agreement whether or not specifically required
by this Agreement; and
|
|
|
(d)
|
any
other document executed at any time pursuant to Clause 24.12 (Further Assurance) or
any similar covenant in any of the Security Documents referred to in
paragraph (a) to (d) above.
|
“Security Trust Agreement”
means that certain security trust agreement dated on or about the Merger Closing
Date made between the Security Trustee and the Lenders and relating to the
appointment of the Security Trustee as trustee of the Security.
“Senior Fees Letter” means the
letter dated 3 March 2006 from the Bookrunners to NTL and the Company in
relation to the fees payable to the Bookrunners for arranging and underwriting
the Facilities (other than the B5 Facility and the B6 Facility).
“Short Term Notes” means the
notes to be issued by one or more Obligors to the US Borrower after the first
Utilisation of the B4 Facility hereunder.
“Sit-up” means sit-up Limited,
a company incorporated under the laws of England and Wales with registered
number 3877786 and having its registered office at 000-000 Xxx Xxxx, Xxxxx,
Xxxxxx X0 0XX.
“Sit-up Acquisition Documents”
means each of:
|
|
(a)
|
the
share purchase deed between Screenshop and Alpine Situp LLC for the sale
of 1,991,841 preference shares and 565,919 warrants to subscribe for
ordinary shares in the capital of Sit-up, dated 23 March
2005;
|
|
|
(b)
|
the
offer document dated on or about 10 May 2005 which describes the terms and
conditions of the recommended offer made by Screenshop to purchase the
issued and to be issued shares of
Sit-up;
|
|
|
(c)
|
the
share purchase agreement between Screenshop, Xxxx Xxxx, Xxxxxx Xxxxx and
Xxxxxxxxxxx Xxxxxx dated on or around 10 May
2005;
|
|
|
(d)
|
the
subscription agreement between the Sit-up, Screenshop, Flextech Broadband
Limited, Xxxx Xxxx, Xxxxxx Xxxxx and Xxxxxxxxxxx Xxxxxx entered into on or
about 10 May 2005; and
|
|
|
(e)
|
and
any other document designated as an “Sit-up Acquisition Document” in
writing to the Facility Agent by the
Company.
|
“Sixth Amendment” means the
amendment and restatement of this agreement pursuant to the letter agreement
dated 10 November 2008 between the Facility Agent, the Ultimate
Parent, the Parent, VMIH, VMIH Sub, TCN and Virgin Media Dover LLC.
|
|
“Sixth Amendment Record
Date” means 13 October 2008.
|
“Solvent” and “Solvency” mean, with respect
to any US Obligor on a particular date, that on such date (a) the value of the
property of such US Obligor (both at present and present fair and present fair
sales value) is greater than the total amount of liabilities, including, without
limitation, contingent and unliquidated liabilities, of such US Obligor as such
liabilities mature, (b) such person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such person’s ability to pay
such debts and liabilities as they mature and (c) such US Obligor is not engaged
in business or a transaction, and is not about to engage in business or a
transaction, for which such person’s property would constitute an unreasonably
small capital. The amount of contingent and unliquidated liabilities
at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
“Solvent Liquidation” has the
meaning given to such term in Clause 25.20 (Solvent
Liquidation).
“Stand Alone Baseball
Financing” means Financial Indebtedness which is incurred
either:
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|
(a)
|
following
the cancellation of the A1 Facility and the B1 Facility, for the purposes
set out in paragraph (b) of Clause 2.4 (Purposes);
or
|
|
|
(b)
|
for
the purposes of refinancing the Total Baseball
Debt,
|
provided
that in each case:
|
|
(i)
|
the
aggregate principal amount of such Financial Indebtedness does not exceed
£500 million;
|
|
|
(ii)
|
the
annual interest expense of such Financial Indebtedness is no greater than
the interest expense payable under an equivalent principal amount of A1
Facility or B1 Facility which is cancelled in accordance with
Clause 10.1 (Voluntary Cancellation)
or (as applicable) an equivalent principal amount of the Total Baseball
Debt being prepaid;
|
|
|
(iii)
|
immediately
prior to the incurrence of such Financial Indebtedness, the Bank Group is
in compliance with the financial covenants set out in Clause 23.2
(Ratios);
|
|
|
(iv)
|
no
creditor in respect of such Financial Indebtedness shall at any time have
any recourse to any member of the Bank
Group;
|
|
|
(v)
|
such
Financial Indebtedness may benefit from guarantees and first priority
security over the assets of members of the Baseball Group but not any
member of the Bank Group;
|
|
|
(vi)
|
following
consummation of the Stand Alone Baseball Financing any transactions
entered into between the Bank Group and the Baseball Group shall be
subject to the provisions of Clause 25.10 (Transactions with
Affiliates); and
|
|
|
(vii)
|
any
such Stand Alone Baseball Financing is completed by 31 December
2006.
|
“Standard & Poor’s” means
Standard & Poor’s Ratings Group or any successor thereof.
“Statutory Requirements” means
any applicable provision or requirement of any Act of Parliament (including
without limitation, the Communications Xxx 0000 and the Broadcasting Acts 1990
and 1996) or any instrument, rule or order made under any Act of Parliament or
any regulation or by-law of any local or other competent authority or any
statutory undertaking or statutory company which has jurisdiction in relation to
the carrying out, use, occupation, operation of the properties or the businesses
of any member of the Bank Group carried out thereon.
“Sterling Amount” means at any
time:
|
|
(a)
|
in
relation to an Advance denominated in Sterling, the amount thereof, and in
relation to any other Advance, the Sterling equivalent of the amount
specified in the Utilisation Request (as at the date thereof) for that
Advance, in each case, as adjusted, if necessary, in accordance with the
terms of this Agreement and to reflect any repayment, consolidation or
division of that Advance;
|
|
|
(b)
|
in
relation to a Documentary Credit, (i) if such Documentary Credit is
denominated in Sterling, the Outstanding L/C Amount in relation to it at
such time or (ii) if such Documentary Credit is not denominated in
Sterling, the equivalent in Sterling of the Outstanding L/C Amount at such
time, calculated as at the later of (1) the date which falls
2 Business Days before its issue date or any renewal date or (2) the
date of any revaluation pursuant to Clause 5.3 (Revaluation of Documentary
Credits);
|
|
|
(c)
|
in
relation to any Ancillary Facility granted by a Lender, the amount of its
RCF Facility Commitment converted to provide its Ancillary Facility
Commitment as at the time of such conversion;
and
|
|
|
(d)
|
in
relation to any Outstandings, the aggregate of the Sterling Amounts
(calculated in accordance with paragraphs (a), (b) and (c) above) of
each outstanding Advance and/or Outstanding L/C Amount, made under the
relevant Facility or Facilities (as the case may be) and/or in relation to
Ancillary Facility Outstandings, (i) if such Outstandings are denominated
in Sterling, the aggregate amount of it at such time and (ii) if such
Outstandings are not denominated in Sterling, the Sterling equivalent of
the aggregate amount of it at such
time.
|
“Steps Paper” means the
alternative papers entitled “Steps Plan: Version 1 –
Combination of NTL, Telewest and Virgin Mobile before Structures 1 and 2”
and “Steps Plan: Version 2 –
Combination of NTL, Telewest and Virgin Mobile after Structures 1 and 2”, in
each case, as agreed between NTL and the Bookrunners setting out the
restructuring steps affecting the Telewest Group and NTL Group occurring prior
to, on and following the Merger Closing Date.
“Structure Notice” means the
structure notice delivered by NTL and the Company to the Bookrunners, in
accordance with the provisions of the Original Agreement, pursuant to which NTL
and the Company elect to implement the restructuring steps referred to in the
Steps Paper as “Post-Combination
Restructuring - Second
Alternative (Structure
2)”.
“Structure 2 Opinions”
means:
(a) an
opinion from a big four accounting firm; and
(b) an
opinion from an internationally recognized law firm,
in each
case:
|
|
(i)
|
substantially
in the form approved by the Mandated Lead Arrangers prior to the issuance
of any Structure Notice;
|
|
|
(ii)
|
issued
on the date of the Structure Notice;
and
|
|
|
(iii)
|
to
the effect that (i) VMIH’s acquisition of Virgin Media (UK) Group, Inc.
(formerly known as NTL (UK) Group, Inc.) shares from Virgin Media (UK)
Group, Inc. (formerly known as NTL (UK) Group, Inc.) should not result for
US federal income tax purposes in Virgin Media (UK) Group, Inc. (formerly
known as NTL (UK) Group, Inc.), the Parent or VMIH recognising income or
gain, and (ii) VMIH's acquisition of all the stock of Telewest UK in
exchange for the Virgin Media (UK) Group, Inc. (formerly known as NTL (UK)
Group, Inc.) shares should not result for US federal income tax purposes
in the Ultimate Parent, any member of the Ultimate Parent’s US
consolidated federal tax group, Virgin Media (UK) Group, Inc. (formerly
known as NTL (UK) Group, Inc.), the Parent or VMIH recognising income or
gain, in each case, pursuant to the implementation of the steps set out on
the pages headed “Post
Combination Restructuring - Second Alternative (Structure 2)” of
the Steps Paper (including, at the Company’s option, alternative Steps
6Y-10Y described therein).
|
“Structuring Completion Date”
means the date falling 10 Business Days after the Structuring Long-Stop
Date.
“Structuring Date” means the
date proposed in the Structure Notice as the date on which the relevant
restructuring steps referred to in the Steps Paper as “Post-Combination Restructuring
- Second Alternative
(Structure 2)” are to be effected, which shall be a date falling no later
than the Structuring Completion Date and shall be no less than 4 Business Days
after the date of the Structure Notice.
“Structuring Long-Stop Date”
means the 31 July 2006.
“Subordinated Funding” means
any loan made to any Obligor by any member of the Group, that is not an Obligor
which:
|
|
(a)
|
constitutes
Parent Intercompany Debt;
|
|
|
(b)
|
is
an intercompany loan arising under the arrangements referred to in
paragraph (c) of the definition of “Permitted
Payments”;
|
|
|
(c)
|
is
an intercompany loan existing as at the Original Execution Date (including
any inter-company loan the benefit of which has, at any time after the
Original Execution Date, been assigned to any other member of the Group,
where such assignment is not otherwise prohibited by this Agreement);
or
|
|
|
(d)
|
constitutes
Equity Equivalent Funding,
|
provided
that, the relevant debtor and creditor are party to the Group Intercreditor
Agreement as an Intergroup Debtor or Intergroup Creditor (as such terms are
defined in the Group Intercreditor Agreement), respectively, or where the
relevant debtor and creditor are party to such other subordination arrangements
as may be satisfactory to the Facility Agent, acting reasonably.
“Subscriber” means any person
who has entered into an agreement (which has not expired or been terminated)
with an Obligor to be provided with services by an Obligor through the operation
of telecommunications and/or television systems operated by the Bank Group in
accordance with applicable Telecommunications, Cable and Broadcasting Laws
(including any part of such system and all modifications, substitutions,
replacements, renewals and extensions made to such systems).
“Subsequent Information
Memorandum” means the Initial Information Memorandum updated to reflect
any changes to the terms of the Facilities made since October 2005, the Baseball
Acquisition and the business, assets, financial condition and prospects of the
Baseball Group.
“Subsequent Security Documents”
means the security documents listed in paragraph 4 of Part 6 of Schedule 4
(Baseball Conditions
Subsequent Documents).
“Subsidiary” of a company shall
be construed as a reference to:
|
|
(a)
|
any
company:
|
|
|
(i)
|
more
than 50% of the issued share capital or membership interests of which is
beneficially owned, directly or indirectly, by the first-mentioned
company; or
|
|
|
(ii)
|
where
the first-mentioned company has the right or ability to control directly
or indirectly the affairs or the composition of the board of directors (or
equivalent of it) of such company;
or
|
|
|
(iii)
|
which
is a Subsidiary of another Subsidiary of the first-mentioned company;
or
|
|
|
(b)
|
for
the purposes of Clause 22 (Financial Information)
and Clause 23 (Financial Condition)
and any provision of this Agreement where the financial terms defined in
Clause 23 (Financial Condition)
are used, any legal entity which is accounted for under
applicable GAAP as a Subsidiary of the first-mentioned
company.
|
“Successful Syndication” has
the meaning given to it in the Senior Fees Letter.
“Supplemental Additional High Yield
Notes Intercreditor Agreement” has the meaning given to it in Clause
25.4(c)(iii) (Financial
Indebtedness).
“Syndication Date” means the
date specified by the Bookrunners (and notified to the Facility Agent and the
Company) as the day on which Successful Syndication has occurred.
“Takeover Code” means the City
Code on Takeovers and Mergers as administered by the Takeover
Panel.
“Takeover Panel” means the
Panel on Takeovers and Mergers.
“TARGET Day” means any day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
payment system is open for the settlement of payments in euro.
“Tax Cooperation Agreement”
means the agreement to be entered into following the Original Execution Date
between the Ultimate Parent, the Company and TCN relating to arrangements
in connection with, amongst other things, the payment of US taxes in form and
substance agreed with the Facility Agent and the Mandated Lead
Arrangers.
“Tax Credit” means a credit
against, relief or remission for, or repayment of any tax.
“Tax Deduction” means a
deduction or withholding for or on account of tax from a payment made or to be
made under a Finance Document.
“Tax Losses” means any amount
capable of surrender pursuant to Chapter IV of Part X of the Taxes
Act.
“Taxes Act” means the Income
and Corporation Taxes Xxx 0000.
“Tax Liability” has the meaning
set out in paragraph (e) of Clause 17.3 (Tax Indemnity).
“Tax Payment” means the
increase in any payment made by an Obligor to a Finance Party under
paragraph (c) of Clause 17.1 (Tax Gross-up) or any amount payable
under paragraph (d) of Clause 17.1 (Tax Gross-up) or under
Clause 17.3 (Tax
Indemnity).
“TCN Group” means TCN and its
Subsidiaries from time to time.
“Telecommunications, Cable and
Broadcasting Laws” means the Telecommunications Xxx 0000, the
Broadcasting Xxx 0000 (together with the Broadcasting Act 1996), the
Communications Xxx 0000 and all other laws, statutes, regulations and judgments
relating to broadcasting or telecommunications or cable television or
broadcasting applicable to any member of the Bank Group, and/or the business
carried on by, any member of the Bank Group (for the avoidance of doubt, not
including laws, statutes, regulations or judgments relating solely to consumer
credit, data protection or intellectual property).
“Telewest Group” means the
Ultimate Parent and its Subsidiaries from time to time. For
information purposes only, the members of the Telewest Group as at the Original
Execution Date and prior to the Merger taking place, are listed in Part 2 of
Schedule 9 (Members of the
Telewest Group).
“Telewest UK” means Telewest UK
Limited, a company incorporated in England & Wales with registered number
04925679 and having its registered office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx
X0X 0XX.
“Term” means:
|
|
(a)
|
in
relation to an RCF Facility Advance, the period for which such Advance is
borrowed as specified in the relevant Utilisation Request (or, in relation
to the initial Secondary Revolving Facility Advance outstanding on the
Roll Effective Date, the remaining period from which such Advance was
borrowed under the Revolving Facility as provided in Clause 2.3
(Roll Effective
Date)); and
|
|
|
(b)
|
in
relation to any Documentary Credit, the period from the date of its issue
until its Expiry Date.
|
“Term Facilities” means the A
Facility, the A1 Facility, the A2 Facility, the A3 Facility, each Additional
Facility, the B1 Facility, the B2 Facility, the B3 Facility, the B4 Facility,
the B5 Facility, the B6 Facility, the B7 Facility, the B8 Facility, the B9
Facility, the B10 Facility, the B11 Facility and B12 Facility and the C Facility
and “Term Facility”
means any of them, as the context requires.
“Term Facility Advance” means
any A Facility Advance, an A1 Facility Advance, an A2 Facility Advance, an A3
Facility Advance, each Additional Facility Advance, a B1 Facility Advance, a B2
Facility Advance, a B3 Facility Advance, a B4 Facility Advance, a B5 Facility
Advance, a B6 Facility Advance, a B7 Facility Advance a B8 Facility Advance, a
B9 Facility Advance, a B10 Facility Advance, a B11 Facility Advance, a B12
Facility Advance or a C Facility Advance and “Term Facility Advances” shall
be construed accordingly.
“Term Facility Outstandings”
means, at any time, the aggregate of the A Facility Outstandings, the A1
Facility Outstandings, the A2 Facility Outstandings, the A3 Facility
Outstandings, the Additional Facility Outstandings, the B1 Facility
Outstandings, the B2 Facility Outstandings, the B3 Facility Outstandings, the B4
Facility Outstandings, the B5 Facility Outstandings, the B6 Facility
Outstandings the B7 Facility Outstandings, the B8 Facility Outstandings, the B9
Facility Outstandings, the B10 Facility Outstandings, the B11 Facility
Outstandings, the B12 Facility Outstandings and C Facility Outstandings, at such
time.
“Termination Date” means
(without limiting the operation of Clause 2.3 (Roll Effective
Date)):
|
|
(a)
|
in
relation to the Revolving Facility, the date which is 30 days prior to the
Final Maturity Date in respect of the Revolving
Facility;
|
|
|
(b)
|
in
relation to the Secondary Revolving Facility, the date which is 30 days
prior to the Final Maturity Date in respect of the Secondary Revolving
Facility;
|
|
|
(c)
|
in
relation to the A Facility and the A2 Facility, the earlier of (i) 2
October 2006 or (ii) the Merger Closing
Date;
|
|
|
(d)
|
in
relation to the B2 Facility, the B3 Facility, the B4 Facility, the B8
Facility, the B9 Facility and the B10 Facility, the earlier of (i) 2
October 2006 or (ii) the Structuring
Date;
|
|
|
(e)
|
in
relation to the B5 Facility, the B6 Facility, the B11 Facility and the B12
Facility, 15 May 2007;
|
|
|
(f)
|
in
relation to the A1 Facility, the A3 Facility, the B1 Facility and the B7
Facility, the earlier of (i) 2 October 2006 or (ii) the date falling 15
days after the Baseball Effective
Date;
|
|
|
(g)
|
in
relation to the C Facility, the period of two weeks commencing on the date
C Facility Lenders first accede to this Agreement or such longer period as
the Facility Agent (acting on the instructions of all of the C Facility
Lenders) and the Company may agree;
|
|
|
(h)
|
in
relation to each Ancillary Facility, the relevant Ancillary Facility
Termination Date; and
|
|
|
(i)
|
in
relation to the Additional Facility, the Additional Facility Termination
Date specified in the relevant Additional Facility Accession
Agreement.
|
“Total Baseball Debt” means all
amounts drawn under the A1 Facility, A3 Facility, B1 Facility and B7 Facility,
by Baseball Cash Bidco and used for any of the purposes specified in
paragraph (d) of Clause 2.4 (Purpose) (including without
limitation, any principal amounts, prepayment penalties, make-whole payments,
accrued interest and Break Costs relating thereto).
“Transfer Date” means, in
relation to any Transfer Deed, the effective date of such transfer as specified
in such Transfer Deed.
“Transfer Deed” means a duly
completed deed of transfer and accession in the form set out in Schedule 3
(Form of Deed of Transfer and
Accession) which has been executed as a deed by a Lender and a Transferee
whereby such Lender seeks to transfer to such Transferee all or a part of such
Lender’s rights, benefits and obligations under this Agreement as contemplated
in Clause 37 (Assignments
and Transfers) and such Transferee agrees to accept such transfer and to
be bound by this Agreement and to accede to the HYD Intercreditor Agreement, the
Group Intercreditor Agreement and the Security Trust Agreement.
“Transferee” means a bank or
other institution to which a Lender seeks to transfer all or part of its rights,
benefits and obligations under this Agreement pursuant to and in accordance with
Clause 37 (Assignments
and Transfers).
“Treasury Rate” means, as of
any prepayment date, the yield to maturity of United States Treasury securities
with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) which has become publicly available at
least two Business Days (but not more than five Business Days) prior to the
prepayment date (or, if such Statistical Release is not so published or
available, any publicly available source of similar market data selected by the
Company in good faith)) most nearly equal to the period from the prepayment date
to and including the Designated Anniversary; provided, however, that if the
period from the prepayment date to and including the Designated Anniversary is
not equal to the constant maturity of a United States Treasury security for
which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such yields
are given, except that if the period from the prepayment date to and including
the Designated Anniversary is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
“UK Bank Lender” means, in
relation to a payment of interest on a participation in an Advance to a
Borrower, a Lender which is beneficially entitled to and within the charge to
United Kingdom corporation tax as regards that payment and (a) if the
participation in that Advance was made by it, is a Lender which is a “bank” (as
defined for the purposes of section 349 of the Taxes Act in section 840A of the
Taxes Act) or (b) if the participation in that Advance was made by a different
person, such person was a “bank” (as defined for the purposes of section 349 of
the Taxes Act in section 840A of the Taxes Act) at the time that Advance was
made.
“UK Borrowers”
means:
(a) as
at the date of the Agreement, each of the Company, TCN and VMIH Sub;
and
|
|
(b)
|
thereafter,
any Acceding Borrower that is liable to corporation tax in the United
Kingdom,
|
excluding
any UK Borrower which has been liquidated in accordance with the provisions of
Clause 25.20 (Solvent
Liquidation) but including the relevant Successor Entity (provided it is
also liable to corporation tax in the United Kingdom) thereafter, and “UK Borrower” means any of
them.
“UK Channel Management” means
UK Channel Management Limited, a company incorporated in England & Wales
with registered number 3322468, whose registered office is at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxx X0X 0XX.
“UK Channel Management Group”
means the UK Channel Management and its Subsidiaries from time to
time.
“UK Channel Management Security
Trustee Undertakings” means the agreement to be entered into on or
following the Merger Closing Date between the Security Trustee, BBC Worldwide
Limited, Flextech Broadband Limited and United Artists Investments Limited in
relation to the shareholders’ agreement relating to UK Channel
Management.
“UK Gold” means UK Gold
Holdings Limited, a company incorporated in England and Wales with
registered number 3298738, whose registered office is at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX.
“UK Gold Group” means UK Gold
and its Subsidiaries from time to time.
“UK Gold Security Trustee
Undertaking” means the agreement to be entered into on or following the
Merger Closing Date between the Security Trustee, BBC Worldwide Limited and
Flextech Broadband Limited in relation to the shareholders agreement relating to
UK Gold.
“UK Non-Bank Lender” means, in
relation to a payment of interest on an Advance to a Borrower:
|
|
(a)
|
a
Lender which is beneficially entitled to the income in respect of which
that payment is made and is a UK Resident company (the first condition set
out in section 349B of the Taxes Act);
or
|
|
|
(b)
|
a
Lender which satisfies one of the other conditions set out in section 349B
of the Taxes Act,
|
where
H.M. Revenue & Customs has not given a direction under section 349C of the
Taxes Act which relates to that payment of interest on an Advance to such
Borrower.
“UK Pension Scheme” means a
pension scheme in which any member of the Group participates or has at any time
participated, and which has its main administration in the United Kingdom or is
primarily for the benefit of employees in the United Kingdom.
“UK Resident” means a person
who is resident in the United Kingdom for the purposes of the Taxes Act and
“non-UK Resident” shall
be construed accordingly.
“UK Treaty Lender” means in
relation to a payment of interest on an Advance to a UK Borrower, a Lender which
is entitled to claim full relief from liability to taxation otherwise imposed by
such UK Borrower’s Relevant Tax Jurisdiction (in relation to that Lender’s
participation in Advances made to such UK Borrower) on interest under a Double
Taxation Treaty and which does not carry on business in that UK Borrower’s
Relevant Tax Jurisdiction through a permanent establishment with which that
Lender’s participation in that Advance is effectively connected and, in relation
to any payment of interest on any Advance made by that Lender, such UK Borrower
has received notification in writing from H.M. Revenue & Customs authorising
such UK Borrower to pay interest on such Advances without any Tax
Deduction.
“UKTV Group” means each of the
UK Channel Management Group, UK Gold Group and UKTV New Ventures
Group.
“UKTV Joint Ventures” means
each of UK Channel Management, UK Gold and UKTV New Ventures.
“UKTV New Ventures” means UKTV
New Ventures Limited, a company incorporated in England and Wales with
registered number 04266373, whose registered office is at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxx X0X 0XX.
“UKTV New Ventures Group” means
the UKTV New Ventures and its Subsidiaries from time to time.
“UKTV New Ventures Security Trustee
Undertaking” means the agreement to be entered into on or following the
Merger Closing Date between the Security Trustee, BBC Worldwide Limited and
Flextech Broadband Limited in relation to the shareholders agreement relating to
UKTV New Ventures.
“Ultimate Parent” means, as at
the Original Execution Date, Telewest Global or at any time thereafter, the
person (if any) that accedes to this Agreement as the Ultimate Parent pursuant
to Clause 26.3 (Acceding
Holding Company).
“United States” or “US” means the United States of
America, its territories, possessions and other areas subject to the
jurisdiction of the United States of America;
“Unpaid Sum” means any sum due
and payable by an Obligor under any Finance Document (other than any Ancillary
Facility Document) but unpaid.
“US Accession Lender” means in
relation to a payment of interest on a participation in an Advance, a Lender
which is not a Qualifying UK Lender.
“US Bankruptcy Code” means the
Bankruptcy Reform Act of 1978, 11 USC. §§ 101 et seq., as amended, or any
successor thereto;
“US Dollars”, “Dollars” or “$” means the lawful currency
for the time being of the United States;
“US Obligors” means the US
Borrower and the Restricted Guarantors, and “US Obligor” means any of
them.
“US Paying Agent” means as at
the Original Execution Date, Deutsche Bank AG, New York Branch and at any other
time, any other person that has been delegated with, or appointed for the
purposes of, carrying out the functions set out in Clause 30.21 (US Paying Agent) subject to
the terms set out in that Clause.
“Utilisation” means the
utilisation of a Facility under this Agreement, whether by way of an Advance,
the issue of a Documentary Credit or the establishment of any Ancillary
Facility.
“Utilisation Date”
means:
|
|
(a)
|
in
relation to an Advance, the date on which such Advance is (or is
requested) to be made;
|
|
|
(b)
|
in
relation to a utilisation by way of Ancillary Facility, the date on which
such Ancillary Facility is established;
and
|
|
|
(c)
|
in
relation to a utilisation by way of Documentary Credit, the date on which
such Documentary Credit is to be issued, in each
case,
|
in
accordance with the terms of this Agreement.
“Utilisation Request”
means:
|
|
(a)
|
in
relation to an Advance a duly completed notice in the form set out in Part
1 to Schedule 5 (Form of
Utilisation Request (Advances));
or
|
|
|
(b)
|
in
relation to a Documentary Credit, a duly completed notice in the form set
out in Part 2 to Schedule 5 (Form of Utilisation Request
(Documentary Credits)).
|
“Vanilla Certain Funds Period” means,
in relation to the A Facility, the period commencing on the Original Execution
Date and ending on the earlier of (i) 2 October 2006 and (ii) the Merger Closing
Date.
“Vanilla Clean-Up Period” means
the period commencing on the Merger Closing Date and ending on the date falling
4 months and 2 weeks thereafter.
“Vanilla Drawstop Default”
means an Event of Default arising under any of the following
provisions:
|
|
(a)
|
with
respect to NTL, the Company, TCN or the Merger Sub only, Clause 27.1
(Non-Payment);
|
|
|
(b)
|
with
respect to the Company or TCN only, Clause 27.2 (Covenants) by virtue of
a breach of the covenant in Clause 25.2 (Negative Pledge) which
has a material adverse effect on the Security (taken as a
whole);
|
|
|
(c)
|
with
respect to NTL, the Company, TCN or the Merger Sub only, Clause 27.4
(Misrepresentation) by
virtue of a breach of any of the representations and warranties in
Clause 21.2 (Due
Organisation); or
|
|
|
(d)
|
with
respect to NTL, the Company, TCN and the Merger Sub only, 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.
|
“Vendor Financing Arrangements”
means any arrangement, contractual or otherwise, pursuant to which credit or
other financing is provided or arranged by a supplier (or any of its Affiliates)
of assets (including equipment) and/or related services to a member of the Bank
Group in connection with such supply of assets and/or services.
“Voting Stock” of a person
means all classes of capital stock, share capital or other interests (including
partnership interests) of such person then outstanding and normally entitled
(without regard to the occurrence of any contingency, other than resulting
from any default under any instrument until such default occurs) to vote in the
election of directors, managers or trustees thereof.
“Whitewash Documents” means
certified copies of all applicable resolutions, statutory declarations,
auditors’ reports and other documents required by sections 155 to 158 of the Act
to enable any company to provide any financial assistance applicable to it.
“Working Capital” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).
|
1.2
|
Accounting
Expressions
|
All
accounting expressions which are not otherwise defined in this Agreement shall
be construed in accordance with GAAP.
|
1.3
|
Construction
|
Unless a
contrary indication appears, any reference in this Agreement to:
the
“Facility Agent”, the
“US Paying Agent”, the
“Administrative Agent”,
a “Mandated Lead
Arranger”, a “Joint Lead
Arranger”, a “Bookrunner”, the “Security Trustee”, a “Hedge Counterparty”, the
“L/C Bank”, an “Ancillary Facility Lender” or
a “Lender” shall be
construed so as to include their respective and any subsequent successors,
Transferees and permitted assigns in accordance with their respective
interests;
“agreed form” means, in
relation to any document, in the form agreed by or on behalf of the Bookrunners
and the Company prior to the Original Execution Date;
“company” includes any body
corporate;
“continuing” in relation to an
Event of Default, or a Default shall be construed as meaning that (a) the
circumstances constituting such Event of Default or Default continue or (b)
neither the Facility Agent (being duly authorised to do so) nor the Lenders have
waived in accordance with this Agreement, such of its or their rights under this
Agreement as arise as a result of that event;
“determines” or “determined” means, save as
otherwise provided herein, a determination made in the absolute discretion of
the person making the determination;
the
“equivalent” on any
given date in one currency (the “first currency”) of an amount
denominated in another currency (the “second currency”) is a
reference to the amount of the first currency which could be purchased with the
second currency at the Facility Agent’s Spot Rate of Exchange at or about 11:00
a.m. on the relevant date for the purchase of the first currency with the second
currency or for the purposes of determining any amounts testing any covenant or
determining whether an Event of Default has occurred under this
Agreement:
| (a) |
in
the case of any basket or threshold amount qualifying a
covenant:
|
| (i) |
in
order to determine how much of such basket or threshold has been used at
any time, for each transaction entered into in reliance upon the
utilisation of such basket or in reliance upon such threshold not being
reached prior to such time, the date upon which such transaction was
entered into; and
|
||
| (ii) |
in
order to determine the permissibility of a proposed transaction, on the
date upon which the permissibility of that transaction is being tested for
the purposes of determining compliance with that covenant;
and
|
| (b) | in the case of any basket or threshold amount relating to an Event of Default, the date on which the relevant event is being assessed for the purposes of determining whether such Event of Default has occurred, |
provided
that in the case of Financial Indebtedness proposed to be incurred to refinance
other Financial Indebtedness denominated in a currency other than Sterling or
other than the currency in which such refinanced Financial Indebtedness is
denominated, if such refinancing would cause any applicable Sterling-denominated
restriction to be exceeded if calculated at the relevant currency exchange rate
in effect on the date of such refinancing, such Sterling denominated restriction
shall be deemed not to be exceeded so long as the principal amount of such
refinancing Financial Indebtedness does not exceed the principal amount of such
Financial Indebtedness being refinanced in the applicable currency at the then
current exchange rate.
“month” is a reference to a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next succeeding calendar month save that, where any
such period would otherwise end on a day which is not a Business Day, it shall
end on the next succeeding Business Day, unless that day falls in the calendar
month succeeding that in which it would otherwise have ended, in which case it
shall end on the immediately preceding Business Day provided that, if a period
starts on the last Business Day in a calendar month or if there is no
numerically corresponding day in the month in which that period ends, that
period shall end on the last Business Day in that later month (provided that in
any reference to “months” only the last month in
a period shall be construed in the aforementioned manner);
a “repayment” shall include a
“prepayment” and
references to “repay” or
“prepay” shall be
construed accordingly;
a “person” shall be construed as
a reference to any person, firm, company, whether with limited liability or
otherwise, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
“tax” shall be construed so as
to include all present and future taxes, charges, imposts, duties, levies,
deductions or withholdings of any kind whatsoever, or any amount payable on
account of or as security for any of the foregoing, by whomsoever on whomsoever
and wherever imposed, levied, collected, withheld or assessed together with any
penalties, additions, fines, surcharges or interest relating to it; and “taxes” and “taxation” shall be construed
accordingly;
“VAT” shall be construed as
value added tax as provided for in the Value Added Tax Xxx 0000 and legislation
(or purported legislation and whether delegated or otherwise) supplemental to
that Act or in any primary or secondary legislation promulgated by the European
Community or European Union or any official body or agency of the European
Community or European Union, and any tax similar or equivalent to value added
tax imposed by any country other than the United Kingdom and any similar or
turnover tax replacing or introduced in addition to any of the
same;
“wholly-owned Subsidiary” of a
company shall be construed as a reference to any company which has no other
members except that other company and that other company’s wholly-owned
Subsidiaries or nominees for that other company or its wholly-owned
Subsidiaries; and
the
“winding-up”, “dissolution” or “administration” of a company
shall be construed so as to include any equivalent or analogous proceedings
under the Law of the jurisdiction in which such company is incorporated,
established or organised or any jurisdiction in which such company carries on
business, including the seeking of liquidation, winding-up, reorganisation,
dissolution, administration, arrangement, adjustment, protection from creditors
or relief of debtors.
|
1.4
|
Currency
|
“€” and “euro” denote the lawful
currency of each Participating Member State, “£” and “Sterling” denote the lawful
currency of the United Kingdom and “$” and “Dollars” denote the lawful
currency of the United States of America.
|
1.5
|
Statutes
|
Any
reference in this Agreement to a statute or a statutory provision shall, save
where a contrary intention is specified, be construed as a reference to such
statute or statutory provision as the same shall have been, or may be, amended
or re-enacted.
|
1.6
|
Time
|
Any
reference in this Agreement to a time shall, unless otherwise specified, be
construed as a reference to London time.
|
1.7
|
References
to Agreements
|
Unless
otherwise stated, any reference in this Agreement to any agreement or document
(including any reference to this Agreement) shall be construed as a reference
to:
| (a) |
such
agreement or document as amended, varied, novated or supplemented from
time to time;
|
| (b) |
any
other agreement or document whereby such agreement or document is so
amended, varied, supplemented or novated;
and
|
| (c) |
any
other agreement or document entered into pursuant to or in accordance with
any such agreement or
document.
|
|
1.8
|
Documentary
Credits
|
Any
reference in this Agreement to:
| (a) |
an
amount borrowed includes any amount utilised by way of Documentary
Credit;
|
| (b) |
a
Lender funding its participation in a Utilisation includes an Indemnifying
Lender participating in a Documentary
Credit;
|
| (c) |
amounts
outstanding under this Agreement include amounts outstanding under, or in
relation to, any Documentary
Credit;
|
| (d) |
an
outstanding amount of a Documentary Credit at any time is the maximum
amount that is or may be payable by the L/C Bank in respect of that
Documentary Credit at that
time;
|
| (e) |
a
Borrower “repaying” a Documentary
Credit or an Ancillary Facility utilised by way of performance bond
means:
|
| (i) |
that
Borrower providing cash cover for that Documentary Credit or performance
bond;
|
||
| (ii) |
the
maximum amount payable under the Documentary Credit or performance bond
being reduced in accordance with its terms or otherwise in a manner
satisfactory to the L/C or Ancillary Facility Lender, as the case be, in
each case, acting reasonably; or
|
||
| (iii) | the L/C Bank or Ancillary Facility Lender, as the case be, being satisfied that it has no further liability under that Documentary Credit or performance bond, |
and that
the amount by which a Documentary Credit or performance bond is repaid under
sub-paragraph (e)(i) or reduced under sub-paragraph (e)(ii) above is
the amount of the relevant cash cover or reduction; and
| (f) |
a
Borrower providing “cash
cover” for a Documentary
Credit or an Ancillary Facility utilised by way of performance bond means
that Borrower paying an amount in the currency of the Documentary Credit
or performance bond to an interest-bearing account in the name of that
Borrower and the following conditions are
met:
|
| (i) |
the
account is with the Facility Agent (if the cash cover is to be provided
for all the Indemnifying Lenders) or with an Indemnifying Lender or the
L/C Bank or the Ancillary Facility Lender (if the cash cover is to be
provided for that Indemnifying Lender or the L/C Bank or Ancillary
Facility Lender, as the case may be);
|
||
| (ii) |
in
the case of cash deposited as cash cover for a Documentary Credit,
withdrawals from the account may only be made to pay a Finance Party
amounts due and payable to it under this Agreement in respect of that
Documentary Credit until no amount is or may be outstanding under that
Documentary Credit; and
|
||
| (iii) | the relevant Borrower has executed a security document over that account, in form and substance satisfactory to the Facility Agent or the Finance Party with which that account is held, creating a first ranking security interest over that account, |
or on
such other terms as may be satisfactory to the Facility Agent, the relevant
Indemnifying Lender, the relevant Ancillary Facility Lender or the L/C
Bank.
|
1.9
|
Holding
Company of Ultimate Parent
|
If at any
time the Ultimate Parent becomes the Subsidiary of any Holding Company as
contemplated by, inter alia, the definition of “Change of Control”, the
provisions of Clause 26.3 (Acceding Holding Company)
shall apply and upon satisfaction of the provisions thereof, any references in
the Finance Documents to “Ultimate Parent” shall thereafter be deemed to be
references to such Holding Company
|
1.10
|
No
Personal Liability
|
No
personal liability shall attach to any director, officer or employee of any
member of the Group for any representation or statement made by that member of
the Group in a certificate signed by such director, officer or
employee.
|
2.1
|
The
Facilities
|
The
Lenders grant (or in the case of paragraph (i) below, following delivery of
a notice by the Company and upon their accession to this Agreement in accordance
with Clause 2.7 (Alternative Bridge Facility
Refinancing) below, the C Facility Lenders grant) upon the terms and
subject to the conditions of this Agreement:
| (a) |
to
the UK
Borrowers,
|
| (i) |
a
term loan facility in a maximum amount of £3,350,000,000 (the “A Facility”) which shall
be available in Sterling in two drawings; provided that the
amount of the A Facility on the Roll Effective Date shall be reduced by
the amount of the A2 Facility on such date as provided in Clause 2.3
(Roll Effective
Date); and
|
||
| (ii) | on and from the Roll Effective Date, a term loan facility in a maximum amount of the aggregate A2 Facility Commitments (the “A2 Facility”) which shall be available in Sterling and shall be fully drawn on the Roll Effective Date by transfer of Outstandings from the A Facility as provided in Clause 2.3 (Roll Effective Date); |
| (b) |
to
Baseball Cash
Bidco,
|
| (i) |
a
term loan facility in a maximum amount of £175,000,000 (the “A1 Facility”) which
shall be available in Sterling in a single drawing; provided that the
amount of the A1 Facility on the Roll Effective Date shall be reduced by
the amount of the A3 Facility on such date as provided in Clause 2.3
(Roll Effective
Date); and
|
||
| (ii) |
on and from the Roll
Effective Date, a term loan facility in a maximum amount of the aggregate
A3 Facility Commitments (the “A3 Facility”) which
shall be available in Sterling and shall be fully drawn on the Roll
Effective Date by transfer of Outstandings from the A1 Facility as
provided in Clause 2.3 (Roll Effective
Date);
|
| (c) |
to
Baseball Cash Bidco,
|
| (i) |
a
term loan facility in a maximum amount of £300,000,000 (the “B1 Facility”) which
shall be available in Sterling in a single drawing; provided that the
amount of the B1 Facility on the Roll Effective Date shall be reduced by
the amount of the B7 Facility on such date as provided in Clause 2.3
(Roll Effective
Date); and
|
||
| (ii) |
on and from the Roll
Effective Date, a term loan facility in a maximum amount of the aggregate
B7 Facility Commitments (the “B7 Facility”) which
shall be available in Sterling and shall be fully drawn on the Roll
Effective Date by transfer of Outstandings from the B1 Facility as
provided in Clause 2.3 (Roll Effective
Date);
|
| (d) |
to
the
Company,
|
| (i) |
a
term loan facility in a maximum amount of £350,652,430.56 (the “B2 Facility”) which
shall be available in Sterling; provided that the
amount of the B2 Facility on the Roll Effective Date shall be reduced by
the amount of the B8 Facility on such date as provided in Clause 2.3
(Roll Effective
Date); and
|
||
| (ii) |
on and from the Roll
Effective Date, a term loan facility in a maximum amount of the aggregate
B8 Facility Commitments (the “B8 Facility”) which
shall be available in Sterling and shall be fully drawn on the Roll
Effective Date by transfer of Outstandings from the B2 Facility as
provided in Clause 2.3 (Roll Effective
Date);
|
| (e) |
to
the
Company,
|
| (i) |
a
term loan facility in a maximum amount of €500,000,000 (the “B3 Facility”) which
shall be available in euro; provided that the
amount of the B3 Facility on the Roll Effective Date shall be reduced by
the amount of the B9 Facility on such date as provided in Clause 2.3
(Roll Effective
Date); and
|
||
| (ii) |
on and from the Roll
Effective Date, a term loan facility in a maximum amount of the aggregate
B9 Facility Commitments (the “B9 Facility”) which
shall be available in euro and shall be fully drawn on the Roll Effective
Date by transfer of Outstandings from the B3 Facility as provided in
Clause 2.3 (Roll
Effective
Date);
|
| (f) |
to
the
US Borrower,
|
| (i) |
a
term loan facility in a maximum amount of $650,000,000 (the “B4 Facility”) which
shall be available in Dollars; provided that the
amount of the B4 Facility on the Roll Effective Date shall be reduced by
the amount of the B10 Facility on such date as provided in
Clause 2.3 (Roll
Effective Date); and
|
||
| (ii) |
on and from the Roll
Effective Date, a term loan facility in a maximum amount of the aggregate
B10 Facility Commitments (the “B10 Facility”) which
shall be available in Dollars and shall be fully drawn on the Roll
Effective Date by transfer of Outstandings from the B4 Facility as
provided in Clause 2.3 (Roll Effective
Date);
|
| (g) |
to
the
Company,
|
| (i) |
a
term loan facility in a maximum amount of £590,000,000 (the “B5 Facility”) which
shall be available in Sterling; provided that the
amount of the B5 Facility on the Roll Effective Date shall be reduced by
the amount of the B11 Facility on such date as provided in Clause 2.3
(Roll Effective
Date); and
|
||
| (ii) |
on and from the Roll
Effective Date, a term loan facility in a maximum amount of the aggregate
B11 Facility Commitments (the “B11 Facility”) which
shall be available in Sterling and shall be fully drawn on the Roll
Effective Date by transfer of Outstandings from the B5 Facility as
provided in Clause 2.3 (Roll Effective
Date);
|
| (h) |
to
VMIH Sub
Limited,
|
| (i) |
a
term loan facility in a maximum amount of £300,000,000 (the “B6 Facility”) which
shall be available in Sterling; provided that the
amount of the B6 Facility on the Roll Effective Date shall be reduced by
the amount of the B12 Facility on such date as provided in Clause 2.3
(Roll Effective
Date); and
|
||
| (ii) |
on and from the Roll
Effective Date, a term loan facility in a maximum amount of the aggregate
B12 Facility Commitments (the “B12 Facility”) which
shall be available in Sterling and shall be fully drawn on the Roll
Effective Date by transfer of Outstandings from the B6 Facility as
provided in Clause 2.3 (Roll Effective
Date);
|
| (i) |
to
the Company, a term loan facility in a maximum amount of up to
£300,000,000 (the “C
Facility”) which shall be available for utilisation in a single
drawing during the C Facility Availability Period in Dollars and/or
Sterling in such proportions as shall be agreed between the Company and
the C Facility Lenders;
and
|
| (j) |
to
the Borrowers (other than the US
Borrower),
|
| (i) |
a
revolving loan facility in a maximum aggregate amount of £100,000,000 (the
“Revolving
Facility”) which shall be available for drawing in euro, Dollars,
Sterling or any Optional Currency subject to the utilisation in full of
the A Facility; provided that the
maximum aggregate amount of the Revolving Facility on the Roll Effective
Date shall be reduced by the maximum aggregate amount of the Secondary
Revolving Facility on such date as provided in Clause 2.3 (Roll Effective Date);
and
|
||
| (ii) | a revolving loan facility in a maximum aggregate amount of the aggregate Secondary Revolving Facility Commitments (the “Secondary Revolving Facility”; together with the Revolving Facility, the “RCF Facility”) which shall be available for drawing in euro, Dollars, Sterling or any Optional Currency and shall be drawn on the Roll Effective Date to the extent provided in Clause 2.3 (Roll Effective Date). |
|
2.2
|
Novation
of B4 Facility
|
Subject
to the provisions of Clause 37.3 (Assignments or Transfers by
Lenders), the Facility Agent may on not less than 2 Business Days
prior notice, require the Company to (and the Company shall promptly thereafter)
transfer by way of novation and in form satisfactory to the Facility Agent, some
or all of its obligations under the B4 Facility to the US Borrower,
whereupon such US Borrower shall become the primary obligor in respect of
such obligations as if it had been the original Borrower thereof.
|
2.3
|
Roll
Effective Date
|
| (a) |
With
effect on the Roll Effective Date, each Lender that has given a Roll
Consent (each a “Rolling
Lender”) and has, as of the Sixth Amendment Record
Date:
|
| (i) |
an
A Facility Commitment shall acquire an A2 Facility Commitment in the
amount of such A Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the A Facility shall be
treated as being outstanding under the A2 Facility and no longer
outstanding under the A Facility;
|
|||
| (B) |
such
Lender’s A Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the A2 Facility may be made under this
Agreement;
|
|||
| (ii) |
an
A1 Facility Commitment shall acquire an A3 Facility Commitment in the
amount of such A1 Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the A1 Facility shall be
treated as being outstanding under the A3 Facility and no longer
outstanding under the A1 Facility;
|
|||
| (B) |
such
Lender’s A1 Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the A3 Facility may be made under this
Agreement;
|
|||
| (iii) |
a
B1 Facility Commitment shall acquire a B7 Facility Commitment in the
amount of such B1 Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the B1 Facility shall be
treated as being outstanding under the B7 Facility and no longer
outstanding under the B1 Facility;
|
|||
| (B) |
such
Lender’s B1 Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the B7 Facility may be made under this
Agreement;
|
|||
| (iv) |
a
B2 Facility Commitment shall acquire a B8 Facility Commitment in the
amount of such B2 Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the B2 Facility shall be
treated as being outstanding under the B8 Facility and no longer
outstanding under the B2 Facility;
|
|||
| (B) |
such
Lender’s B2 Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the B8 Facility may be made under this
Agreement;
|
|||
| (v) |
a
B3 Facility Commitment shall acquire a B9 Facility Commitment in the
amount of such B3 Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the B3 Facility shall be
treated as being outstanding under the B9 Facility and no longer
outstanding under the B3 Facility;
|
|||
| (B) |
such
Lender’s B3 Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the B9 Facility may be made under this
Agreement;
|
|||
| (vi) |
a
B4 Facility Commitment shall acquire a B10 Facility Commitment in the
amount of such B4 Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the B4 Facility shall be
treated as being outstanding under the B10 Facility and no longer
outstanding under the B4 Facility;
|
|||
| (B) |
such
Lender’s B4 Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the B10 Facility may be made under this
Agreement;
|
|||
| (vii) |
a
B5 Facility Commitment shall acquire a B11 Facility Commitment in the
amount of such B5 Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the B5 Facility shall be
treated as being outstanding under the B11 Facility and no longer
outstanding under the B5 Facility;
|
|||
| (B) |
such
Lender’s B5 Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the B11 Facility may be made under this
Agreement;
|
|||
| (viii) |
a
B6 Facility Commitment shall acquire a B12 Facility Commitment in the
amount of such B6 Facility Commitment and concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the B6 Facility shall be
treated as being outstanding under the B12 Facility and no longer
outstanding under the B6 Facility;
|
|||
| (B) |
such
Lender’s B6 Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
no
further Utilisations of the B12 Facility may be made under this
Agreement;
|
|||
| (ix) |
a
Revolving Facility Commitment shall acquire a Secondary Revolving Facility
Commitment in the amount of such Revolving Facility Commitment and
concurrently
therewith:
|
| (A) |
such
Lender’s participation in any Outstandings under the Revolving Facility
shall be treated as being outstanding under the Secondary Revolving
Facility and no longer outstanding under the Revolving
Facility;
|
|||
| (B) |
such
Lender’s Revolving Facility Commitment shall be reduced to zero;
and
|
|||
| (C) |
the
Secondary Revolving Facility shall be available for further Utilisations
on (and subject to) the terms and conditions provided in this
Agreement.
|
|||
| (b) |
If
by operation of paragraph (a) above any participation of a Rolling Lender
in Outstandings or any part of such Outstandings (in either case, the
“Rolling Outstanding
Amount”) under one Facility (the “First Facility”) becomes
a participation of such Rolling Lender in Outstandings under another
Facility (the “Second
Facility”) on a day other than the last day of the Interest Period
or (in the case of an RCF Facility Advance, Term) in relation to the
Rolling Outstanding Amount under the First Facility (the “Current Interest
Period”), notwithstanding any other provision of this
Agreement:
|
| (i) |
the
first Interest Period (or, in the case of an RCF Facility Advance, Term)
for such Rolling Outstanding Amount under the Second Facility shall have a
duration equal to the unexpired portion of the Current Interest
Period;
|
||
| (ii) | EURIBOR or LIBOR (as applicable to such Rolling Outstanding Amount) for purposes of determining the rate of interest payable under this Agreement on such Rolling Outstanding Amount for such first Interest Period shall be the rate thereof which would have applied if the Rolling Outstanding Amount had remained outstanding under the First Facility for the remainder of the Current Interest Period; and | ||
| (iii) | all interest and any other amounts accrued but unpaid under the Finance Documents on the Rolling Outstanding Amount on or before the Roll Effective Date under the First Facility, shall be due and payable on the last day of the Current Interest Period. |
| (c) |
Notwithstanding
any other term of this Agreement or the Finance Documents, no transfer of
Outstandings from one Facility to another Facility under this Clause 2.3
shall be deemed a prepayment of any of the Facilities for purposes of
Clause 11 (Voluntary
Prepayment) or Clause 12 (Mandatory
Prepayment).
|
|
2.4
|
Purpose
|
| (a) |
The
A Facility and A2 Facility shall be applied towards
financing:
|
| (i) |
the
repayment in full of all amounts due and payable under the Existing Credit
Facilities (including in each case without limitation, by way of
principal, interest, break costs, fees and expenses, commission and any
other premiums); and
|
||
| (ii) | any fees, costs and expenses due and payable under the Finance Documents and any other fees, costs and expenses incurred by the Obligors in connection with the negotiation and preparation of the Finance Documents, |
provided
that, for the avoidance of doubt, no portion of the A Facility or A2 Facility
(or proceeds therefrom) may be used to finance any part of the purchase price
payable for the Merger or any related fees, costs and expenses incurred
therein.
| (b) |
The
B2 Facility, B3 Facility, B4 Facility, B8 Facility, B9 Facility and B10
Facility shall be applied towards the repayment of the Bridge Facility,
through a series of transactions as more particularly described in the
Steps
Paper.
|
| (c) |
The
B5 Facility, B6 Facility, B11 Facility and B12 Facility shall be applied
towards the prepayment
of:
|
| (i) |
the
A Facility Outstandings and the A1 Facility Outstandings;
and
|
||
| (ii) | the B1 Facility Outstandings, B2 Facility Outstandings, B3 Facility Outstandings and/or B4 Facility Outstandings pro rata, to the extent any B1 Facility Lenders, B2 Facility Lenders, B3 Facility Lenders or B4 Facility Lenders have not previously waived their right to receive their pro rata share of such prepayment and have elected to receive such prepayment pursuant to paragraph (c) of Clause 11.3 (Application of Prepayments), |
in each
case in accordance with the terms of the Fourth Amendment Letter and together
with any fees, costs and expenses incurred by the Obligors in connection with
the amendments and waivers required to be made to this Agreement pursuant to the
Fourth Amendment Letter.
| (d) |
The
A1 Facility, A3 Facility, B1 Facility and B7 Facility shall be applied
towards financing or
refinancing:
|
| (i) |
firstly,
the entire cash consideration payable by Baseball Cash Bidco in respect of
the Baseball Shares to be acquired by the Baseball Bidcos pursuant to the
Baseball Scheme and any payments to holders of options in respect of the
Baseball Shares who exercise or surrender their options in connection with
the Baseball Scheme;
|
||
| (ii) |
secondly, after
payment in full of the amounts specified in sub-paragraph (i) above,
the payment of related fees, costs and expenses (and taxes thereon) due
and payable by or on behalf of the Baseball Bidcos in connection with the
Baseball Scheme including all stamp, registration or similar taxes
thereon; and
|
||
| (iii) |
thirdly, after
payment in full of the amounts specified in sub-paragraph (ii) above,
the repayment or reimbursement of amounts applied towards the repayment in
full of all amounts due and payable under the Existing Baseball Facilities
(including in each case without limitation, by way of principal, interest,
break costs, fees and expenses, commission and any other premiums) on or
after the Baseball Effective
Date.
|
| (e) |
The
C Facility shall be applied, together with any New High Yield Notes issued
pursuant to an Option B Alternative Bridge Facility Refinancing, for the
purpose of refinancing the Alternative Bridge Facility in
full.
|
| (f) |
The
Revolving Facility and the Secondary Revolving Facility shall be applied
for the purposes of financing the ongoing working capital requirements and
the general corporate purposes of the Bank Group and may be utilised by
way of Revolving Facility Advances, Secondary Revolving Facility Advances,
Documentary Credits or, subject to the provisions of Clause 6 (Ancillary Facilities),
Ancillary
Facilities.
|
| (g) |
Each
Borrower shall apply all amounts borrowed under this Agreement in or
towards satisfaction of the purposes referred to in paragraphs (a) to
(f) (as applicable) and none of the Finance Parties shall be obliged to
concern themselves with such
application.
|
|
2.5
|
Several
Obligations
|
The
obligations of each Finance Party under this Agreement are several and the
failure by a Finance Party to perform any of its obligations under this
Agreement shall not affect the obligations of any of the Obligors towards any
other party to this Agreement nor shall any other party be liable for the
failure by such Finance Party to perform its obligations under this
Agreement.
|
2.6
|
Several
Rights
|
The
rights of each Finance Party are several and any debt arising under this
Agreement at any time from an Obligor to any Finance Party to this Agreement
shall be a separate and independent debt. Each Finance Party may,
except as otherwise stated in this Agreement, separately enforce its rights
under this Agreement.
|
2.7
|
Alternative
Bridge Facility Refinancing
|
| (a) |
The
Company may, at any time after the Second Amendment Effective Date elect
by prior written notice to the Facility Agent to refinance the Alternative
Bridge Facility (in whole but not in part) from the proceeds of either an
Option A Alternative Bridge Facility Refinancing or an Option B
Alternative Bridge Facility Refinancing, such notice to specify the
proposed date for such refinancing, being a date falling not less than 3
Business Days after the date of the
notice.
|
| (b) |
In
the event that the Company elects to proceed with an Option B Alternative
Bridge Facility Refinancing pursuant to paragraph (a) above, one or
more persons intending to become a C Facility Lender for the purposes of
this Agreement shall have delivered to the Facility Agent, a C Facility
Lender Deed of Accession on or prior to the time on which the Utilisation
Request is delivered, whereupon such person shall become a party to this
Agreement and shall be entitled to the rights and be subject to the
obligations of a C Facility Lender as if it had been an original party
hereto in that
capacity.
|
|
2.8
|
No
obligations with respect to C
Facility
|
For the
avoidance of doubt, no Lender (other than a C Facility Lender) shall be obliged
to commit or underwrite any amounts in respect of the C Facility and any
commitment or agreement to underwrite any part of the C Facility by any C
Facility Lender from time to time, shall not oblige any other Lender to enter
into any similar commitment or agreement hereunder.
|
2.9
|
Additional
Facility
|
| (a) |
The
Company may notify the Facility Agent that it wishes to establish one or
more additional term loan facilities (each an “Additional Facility”) by
delivery to the Facility Agent of a duly completed Additional Facility
Accession Agreement, duly executed by the Company, each Additional
Facility Lender for the Additional Facility and the Additional Facility
Borrower for the Additional Facility, provided
that:
|
| (i) |
no
Event of Default is continuing;
|
||
| (ii) |
the terms of the
Additional Facility provide that no Utilisation may be made of such
Additional Facility if, at the time of such Utilisation, an Event of
Default is continuing or would result from such
Utilisation;
|
||
| (iii) |
the Final Maturity
Date applicable to the Additional Facility shall be no earlier than 3
September 2012 and there shall be no scheduled prior repayments required
in relation to the Additional
Facility;
|
| (iv) |
the
Additional Facility Borrower for the Additional Facility is an existing
Borrower;
|
||
| (v) |
the interest rate,
fees and related provisions, tax gross-up provisions and indemnity
provisions applicable to, and the currency of, the Additional Facility
shall be agreed by the Additional Facility Borrower and the Additional
Facility Lenders; provided that the
Additional Facility Margin may not exceed the sum
of:
|
|
|
(A)
|
the
highest Applicable Margin payable on the B7 Facility, B8 Facility, B9
Facility, B10 Facility, B11 Facility or B12 Facility;
and
|
|
|
(B)
|
0.75%
per annum;
|
| (vi) | an amount equal to the Additional Facility Outstandings in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iii) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and | ||
| (vii) | the terms of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing. |
| (b) |
Each
Additional Facility Accession Agreement shall set out details of the
interest rate, principal amount and term of the proposed
Additional Facility and confirm the requirements of paragraph (a) are
fulfilled. Each Additional Facility Accession Agreement shall
also specify the date upon which the Additional Facility is anticipated to
be made available to the relevant Additional Facility Borrower (the “Additional Facility
Commencement
Date”).
|
| (c) |
Subject
to the conditions in paragraphs (a) and (b) above being met, from the
relevant Additional Facility Commencement Date for an Additional Facility,
the Additional Facility Lenders for that Additional Facility shall make
available the Additional Facility in a maximum aggregate amount not
exceeding the aggregate Additional Facility Commitments in respect of that
Additional
Facility.
|
| (d) |
Each
Additional Facility Lender shall become a party to this Agreement (and be
entitled to share in the Security in accordance with the terms of the
Finance Documents on the same terms as the Facilities that are being
repaid with the proceeds from the relevant Additional Facility) if the
Facility Agent executes the relevant Additional Facility Accession
Agreement.
|
| (e) |
Each
party to this Agreement (other than each proposed Additional Facility
Lender and the Company) irrevocably authorises and instructs the Facility
Agent to execute on its behalf any Additional Facility Accession Agreement
which has been duly completed and signed on behalf of each proposed
Additional Facility Lender, the Company and the Additional Facility
Borrower, and the Parent and each Obligor agrees to be bound by such
accession.
|
| (f) |
The
Facility Agent shall only be obliged to execute an Additional Facility
Accession Agreement delivered to it
if:
|
| (i) |
the
terms of its and the Security Trustee’s compensation and indemnities for
any additional administrative or other requirements and costs under the
Finance Documents arising in relation to the Additional Facility are
satisfactory to it; and
|
||
| (ii) |
it is satisfied it
has complied with all necessary “know your customer” or other similar
checks under all applicable law and regulations in relation to the
accession of such Additional Facility
Lender.
|
| (g) |
On
the date that the Facility Agent executes an Additional Facility Accession
Agreement:
|
| (i) |
each
Additional Facility Lender party to that Additional Facility Accession
Agreement, each other Finance Party, the Parent and the Obligors shall
acquire the same rights and assume the same obligations between themselves
as they would have acquired and assumed had each Additional Facility
Lender been an original Lender, with the rights and/or obligations assumed
by it as a result of that accession and with the Commitment specified by
it as its Additional Facility Commitment; and
|
||
| (ii) | each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”. |
| (h) |
The
execution by the Company of an Additional Facility Accession Agreement
constitutes confirmation by the Parent and each Guarantor that its
obligations under Clause 29 (Guarantee and
Indemnity) shall continue unaffected, except that those obligations
shall extend to the Total Commitments as increased by the addition of each
relevant Additional Facility Lender’s Commitment and shall be owed to each
Finance Party including such Additional Facility
Lender.
|
| (i) |
The
Facility Agent is authorised and instructed to enter into such
documentation as is reasonably required to amend this Agreement and any
other Finance Document (in accordance with the terms of this Clause 2.9
(Additional
Facility)) to reflect the terms of each Additional
Facility.
|
|
3.
|
|
3.1
|
Vanilla
Conditions Precedent
|
| (a) |
The
obligations of the Lenders to make the A Facility, the Revolving Facility
and the Secondary Revolving Facility available shall be conditional upon
the Facility Agent having confirmed to the Company that it has received
(or has waived in accordance with this Agreement, the requirement to
receive) the documents listed in paragraphs 1 to 9 of Part 1
of Schedule 4 (Conditions Precedent to First
Utilisation) and that each is satisfactory, in form and substance,
to the Facility Agent, acting reasonably. The Facility Agent
shall notify the Company and the Lenders promptly upon being so
satisfied.
|
| (b) |
The
obligations of the Lenders to make the B2 Facility, B3 Facility
and B4 Facility available shall be conditional upon the
Facility Agent having confirmed to the Company that it has received (or
has waived in accordance with this Agreement, the requirement to receive)
the documents listed in paragraphs 10 to 12 of Schedule 4 (Conditions Precedent to First
Utilisation) and that each is satisfactory, in form and substance,
to the Facility Agent, acting reasonably. The Facility Agent shall notify
the Company and the Lenders promptly upon being so
satisfied.
|
| (c) |
The
obligations of the Lenders to make the B5 Facility and B6 Facility
available shall be conditional upon the Facility Agent having confirmed to
the Company that it has received (or has waived in accordance with this
Agreement, the requirement to receive) the documents listed in Part 8 of
Schedule 4 (Conditions
Precedent to B5 Facility and B6 Facility Utilisation) and that each
is satisfactory, in form and substance, to the Facility Agent, acting
reasonably. The Facility Agent shall notify the Company and the Lenders
promptly upon being so
satisfied.
|
| (d) |
The
obligations of the C Facility Lenders to make the C Facility available
shall be conditional upon the Facility Agent having confirmed to the
Company that it has received (or has waived in accordance with this
Agreement, the requirement to receive) the documents listed in Part 7 of
Schedule 4 (Conditions
Precedent to C Facility Utilisation) and that each is satisfactory,
in form and substance, to the Facility Agent, acting reasonably. The
Facility Agent shall notify the Company and the C Facility Lenders
promptly upon being so
satisfied.
|
|
3.2
|
Baseball
Conditions Precedent
|
The
obligations of the Lenders to make the A1 Facility and the B1 Facility available
shall be conditional upon the Facility Agent having confirmed to Baseball Cash
Bidco that it has received (or has waived in accordance with this Agreement, the
requirement to receive) the documents listed in Part 2 of Schedule 4 (Conditions Precedent to First
Baseball Utilisation) and that each is satisfactory, in form and
substance, to the Facility Agent, acting reasonably. The Facility
Agent shall notify Baseball Cash Bidco and the Lenders promptly upon being so
satisfied.
|
3.3
|
Vanilla
Conditions Subsequent
|
The
Company shall procure (and each relevant Obligor shall ensure)
that:
| (a) |
immediately
after the first Utilisation, the Merger Sub and NTL shall have filed the
certification of merger with the Secretary of State of Delaware and the
Ultimate Parent shall have filed the charter amendment as set forth in
Section 2.01(b) of the Merger
Agreement;
|
| (b) |
within
30 days after the Merger Closing Date (or earlier, to the extent required
by any time-limit prescribed by law) all Initial Security Documents shall
have been registered or filed with all appropriate authorities to the
extent necessary for the purposes of perfecting the Security created
thereunder;
|
| (c) |
within
30 days after the Merger Closing Date, there shall have been delivered to
the Facility Agent each of the documents listed in Part 5 of Schedule 4
(Vanilla Conditions
Subsequent Documents) each in form and substance satisfactory to
the Facility Agent, acting reasonably;
and
|
| (d) |
using
its best endeavours, within 90 days of the Structuring Date, such members
of the TCN Group that are Guarantors at such time, shall take all
reasonable action to produce and deliver all necessary Whitewash Documents
to ensure that the extent of its guarantee provided under
Clause 29 (Guarantee and
Indemnity) may be extended to include any sums payable in respect
of the B2 Facility, B3 Facility and B4 Facility without breaching and
having satisfied the provisions of Sections 151 to 158 of the
Act.
|
The
Facility Agent shall notify the Company and the Lenders promptly upon being so
satisfied.
|
3.4
|
Baseball
Conditions Subsequent
|
The
Baseball Cash Bidco shall procure (and the Company shall ensure) that as soon as
reasonably practicable and in any event within 90 days of the Baseball Effective
Date such members of the Baseball Group as shall be necessary to ensure that the
80% Security Test (after giving effect to the Baseball Acquisition) is
satisfied, shall have acceded to this Agreement as Acceding Guarantors and
provided all necessary documentation required to be delivered pursuant to the
provisions of Clause 26.2 (Acceding Guarantor) and each
of the documents listed in Part 6 of Schedule 4 (Baseball Condition Subsequent
Documents), each in form and substance satisfactory to the Facility
Agent, acting reasonably. The Facility Agent shall notify the Company
and the Lenders promptly upon being so satisfied.
|
3.5
|
Vanilla
Certain Funds Period
|
Prior to
the end of the Vanilla Certain Funds Period, no Finance Party may:
| (a) |
exercise
any rights of rescission, termination, cancellation, set-off or
counterclaim;
|
| (b) |
exercise
any remedy under Clause 27 (Events of Default) or
any other remedy in connection with a Finance
Document;
|
| (c) |
invoke
any right or discretion for which provision is made in this Agreement
requiring any prepayment or repayment of any A Facility Advance, any
Revolving Facility Advance, any Secondary Revolving Facility Advance or
any Documentary Credit;
or
|
| (d) |
refuse
to make available any A Facility Advance for the purposes set out in
paragraph (a) of Clause 2.4 (Purpose),
|
unless
either:
| (i) |
the
conditions precedent to first Utilisation required by Clause 3.1
(Vanilla Conditions
Precedent) are not satisfied or waived or a Borrower fails to
deliver a Utilisation Request in respect of such Utilisation;
or
|
||
| (ii) | a Vanilla Drawstop Default has occurred and is continuing, |
provided
that any matter contained in this Clause 3.5 shall be without prejudice to
the Lenders’ rights or remedies in respect of any Event of Default which has
occurred and which remains outstanding upon the expiry of the Vanilla Certain
Funds Period.
|
3.6
|
Baseball
Certain Funds Period
|
Prior to
the end of the Baseball Certain Funds Period, no Finance Party may:
| (a) |
have
the right to prevent or limit the making of any drawdown under the A1
Facility and the B1 Facility, whether by cancellation, rescission or
termination of the A1 Facility and the B1 Facility or otherwise (including
by invoking any conditions precedent other than in accordance with
Clause 3.2 (Baseball Conditions
Precedent) or by invoking the provisions of Clause 15.1 (Market
Disruption);
|
| (b) |
make
or enforce any claims that it may have under the Finance Documents if the
effect of such claim or enforcement would prevent or limit the making of
any drawdown under the A1 Facility and the B1
Facility;
|
| (c) |
exercise
any right of set-off, counterclaim or similar right or remedy if to do so
would prevent or limit the making of any drawdown under the A1 Facility
and the B1 Facility;
or
|
| (d) |
cancel
or declare the A1 Facility and/or the B1 Facility due and payable or
payable on
demand,
|
unless
either:
| (i) |
the
conditions precedent to first Utilisation required by Clause 3.2
(Baseball Conditions
Precedent) are not satisfied or waived or a Borrower fails to
deliver a Utilisation Request in respect of such
Utilisation;
|
||
| (ii) | a Baseball Drawstop Default has occurred and is continuing; or | ||
| (iii) | it is unlawful for such Lender to make any A1 Facility Advance and B1 Facility Advance, |
provided
that any matter contained in this Clause 3.6 shall be without prejudice to
the Lenders’ rights or remedies in respect of any Event of Default which has
occurred and which remains outstanding upon the expiry of the Baseball Certain
Funds Period.
|
4.
|
|
4.1
|
Conditions
to Utilisation
|
Save as
otherwise provided in this Agreement, an Advance will be made by the Lenders to
a Borrower or a Documentary Credit will be issued by an L/C Bank at a Borrower’s
(other than the US Borrower’s) request if:
| (a) |
in
the case of an Advance, the Facility Agent has received from such Borrower
a duly completed Utilisation Request in the relevant form, and in the case
of a Documentary Credit, both the Facility Agent and the L/C Bank have
received from a Borrower (other than the US Borrower) a duly completed
Utilisation Request in the relevant form, in each case, no earlier than
the day which is 10 Business Days and no later than 2:00 p.m. on the day
which is 3 Business Days (or in the case of any Documentary Credit
which is not or will not be in the form of Schedule 12 (Form of Documentary
Credit), no later than 2:00 p.m. on the day which is 5 Business
Days) prior to the proposed Utilisation Date for such Advance or
Documentary Credit, receipt of which shall oblige such Borrower to utilise
the amount requested on the Utilisation Date stated therein upon the terms
and subject to the conditions contained in this
Agreement;
|
| (b) |
the
proposed Utilisation Date is a Business Day for the proposed currency of
the Advance or Documentary Credit, as the case may be, which is or
precedes the relevant Termination
Date;
|
| (c) |
in
the case of a Utilisation by way of Term Facility Advance, such
Utilisation would result in the maximum principal amount of the Term
Facility Advance being utilised, or in the case of a Utilisation by way of
a RCF Facility Advance, such Utilisation occurs on or after the maximum
principal amount of the Term Facility being utilised and, the proposed
Sterling Amount of such RCF Facility Advance is (i) equal to the amount of
the Available RCF Facility Commitment at such time, or (ii) less than such
amount but equal to a minimum of £5 million, or an integral multiple of £1
million;
|
| (d) |
in
the case of a Utilisation by way of Documentary Credit, the proposed
Sterling Amount of such Documentary Credit is (i) equal to the amount of
the Available RCF Facility or (ii) less than such amount but equal to
or more than £1 million or such
lesser amount as the L/C Bank may
agree;
|
| (e) |
in
the case of a Utilisation by way of an RCF Facility
Advance:
|
| (i) |
prior
to the Termination Date in respect of the Revolving Facility, the
Revolving Facility and Secondary Revolving Facility shall be utilised at
all times together, pro
rata to the respective Commitments thereunder, as if such
Facilities were one Facility; and
|
||
| (ii) |
immediately after
the making of such Advance there will be no more than 10 Revolving
Facility Advances and 10 Secondary Revolving Facility Advances then
outstanding;
|
| (f) |
in
the case of a Utilisation by way of a Documentary Credit, the proposed
Term of the Documentary Credit ends on or before the Final Maturity Date
in respect of the Revolving Facility (if the Utilisation Date is prior to
such Final Maturity Date) or on or before the Termination Date in respect
of the Secondary Revolving Facility (if the Utilisation Date is after the
Final Maturity Date of the Revolving
Facility);
|
| (g) |
in
the case of a Utilisation by way of an RCF Facility Advance, the proposed
Term of such Advance is a period of 1, 2, 3 or 6 months or such other
period of up to 12 months as all the Lenders having a Revolving Facility
Commitment or Secondary Revolving Facility Commitment may agree prior to
submission of the relevant Utilisation Request, and ends on or before the
Final Maturity Date in respect of the Revolving Facility (or, if the
Utilisation Date is after such Final Maturity Date, the Final Maturity
Date in respect of the Secondary Revolving Facility), provided that, save as
the Bookrunners may otherwise agree, prior to the Syndication Date, the
Term of each Revolving Facility Advance and Secondary Revolving Facility
Advance shall be 1 month (or, if less, such duration as is necessary to
ensure that such Term ends on the Syndication
Date);
|
| (h) |
in
the case of a Utilisation by way of an Advance (other than a Rollover
Advance), the interest rate applicable to such Advance’s first Interest
Period or Term (as the case may be) will not have to be determined under
Clause 15 (Market
Disruption and Alternative Interest
Rates);
|
| (i) |
in
the case of a Utilisation by way of a Documentary Credit which is not
substantially in the form set out in Schedule 12 (Form of Documentary
Credit), the L/C Bank shall have approved the terms of such
Documentary Credit (acting reasonably);
and
|
| (j) |
in
the case of any Utilisation, on the date of the Utilisation Request, the
date of any Conversion Notice and the proposed Utilisation
Date:
|
| (i) |
in
the case of a Rollover Advance or a Documentary Credit which is being
renewed pursuant to Clause 5.2 (Renewal of Documentary
Credits), the Facility Agent shall not have received instructions
from a Revolving Facility Instructing Group requiring the Facility Agent
to refuse such rollover or renewal of a Documentary Credit by reason of an
Event of Default having occurred which is continuing or would result from
the proposed Rollover Advance or the renewal of that Documentary Credit;
or
|
||
| (ii) | in the case of any Utilisation other than that referred to in sub-paragraph (i): |
|
|
(A)
|
in
the case of the first Utilisation of any Facility, subject to the
provisions of Clause 3.5 (Vanilla Certain Funds Period),
all representations set out in Clause 21 (Representations and
Warranties) made by each of the persons identified as making those
representations are true in all material respects by reference to the
circumstances then existing and no Default is continuing or would result
from the proposed Utilisation;
|
|
|
(B)
|
in
the case of any Utilisation under the A1 Facility and B1 Facility, subject
to the provisions of Clause 3.6 (Baseball Certain Funds
Period), the Repeating Representations made by the persons
identified as making those representations are true in all material
respects by reference to the circumstances then existing and no Default is
continuing or would result from the proposed
Utilisation;
|
|
|
(C)
|
in
the case of any Utilisation under the B2 Facility, B3 Facility, B4
Facility, B5 Facility and B6 Facility, the Repeating Representations made
by the persons identified as making those representations are true in all
material respects by reference to the circumstances then existing and no
Default is continuing or would result from the proposed
Utilisation;
|
|
|
(D)
|
in
the case of any Utilisation under the C Facility, the Repeating
Representations made by the persons identified as making those
representations are true in all material respects by reference to the
circumstances then existing and no Default is continuing or would result
from the proposed Utilisation; or
|
|
|
(E)
|
in
the case of any Utilisation under the Additional Facility, the Repeating
Representations made by the persons identified as making those
representations are true in all material respects by reference to the
circumstances then existing and no Default is continuing or would result
from the proposed Utilisation.
|
|
4.2
|
Lenders’
Participations
|
Each
Lender will participate through its Facility Office in each Advance made
pursuant to Clause 4.1 (Conditions to Utilisation) in
its respective Proportion.
|
5.1
|
Issue
of Documentary Credits
|
| (a) |
Each
L/C Bank shall issue Documentary Credits pursuant to Clause 4.1
(Conditions to
Utilisation)
by:
|
| (i) |
completing
the issue date and the proposed Expiry Date of any Documentary Credit to
be issued by it; and
|
||
| (ii) | executing and delivering such Documentary Credit to the relevant Beneficiary on the relevant Utilisation Date. |
| (b) |
Each
Lender having a Revolving Facility Commitment or a Secondary Revolving
Facility Commitment (an “Indemnifying Lender”)
will participate by way of indemnity in each Documentary Credit in an
amount equal to its L/C
Proportion.
|
| (c) |
The
Facility Agent shall notify each Indemnifying Lender and the L/C Bank of
the details of any requested Documentary Credit (including the Sterling
Amount of it, and, if such Documentary Credit is not to be denominated in
Sterling, the relevant currency in which it will be denominated and the
amount of it) and its participation in that Documentary
Credit.
|
|
5.2
|
Renewal
of Documentary Credits
|
| (a) |
Each
Borrower (other than the US Borrower) may request that a Documentary
Credit issued on its behalf be renewed by delivering to the Facility Agent
and the L/C Bank a Renewal Request which complies with Clause 4.1
(Conditions to
Utilisation).
|
| (b) |
The
terms of each renewed Documentary Credit shall be the same as those of the
relevant Documentary Credit immediately prior to its renewal, except that
(as stated in the Renewal Request
therefor):
|
| (i) |
its
amount may be less than the amount of such Documentary Credit immediately
prior to its renewal; and
|
||
| (ii) |
its Term shall start
on the date which was the Expiry Date of that Documentary Credit
immediately prior to its renewal, and shall end on the proposed Expiry
Date specified in the Renewal
Request.
|
| (c) |
If
the conditions set out in this Clause 5.2 have been met, the L/C Bank
shall amend and re-issue the relevant Documentary Credit pursuant to a
Renewal
Request.
|
|
5.3
|
Revaluation
of Documentary Credits
|
| (a) |
If
any Documentary Credit is denominated in a currency other than Sterling
and has a Term of more than 6 months, the Facility Agent shall on each
Quarter Date falling on 31 March and 30 September recalculate the
Sterling Amount of that Documentary Credit by notionally converting into
the relevant currency, the outstanding amount of that Documentary Credit
on the basis of the Facility Agent’s Spot Rate of Exchange on the date of
calculation.
|
| (b) |
The
relevant Borrower shall, if requested by the Facility Agent
within 2 days of any calculation under paragraph (a) above, ensure
that within 3 Business Days sufficient Revolving Facility Outstandings and
Secondary Revolving Facility Outstandings are repaid (subject to Break
Costs, if applicable, but otherwise without penalty or premium which might
otherwise be payable), pro rata to the
Outstandings thereunder immediately prior to such repayment, to prevent
the Sterling Amount of the Revolving Facility Outstandings and Secondary
Revolving Facility Outstandings exceeding the aggregate amount of all of
RCF Facility Commitments adjusted to reflect any cancellations or
reductions, following any adjustment under paragraph (a)
above.
|
|
5.4
|
Immediately
Payable
|
If a
Documentary Credit or any amount outstanding under a Documentary Credit is
expressed to be immediately payable, the relevant UK Borrower shall repay that
amount immediately.
|
5.5
|
Claims
under a Documentary Credit
|
| (a) |
Each
relevant Borrower irrevocably and unconditionally authorises the L/C Bank
to pay any claim made or purporting to be made under a Documentary Credit
requested by it and which appears on its face to be in order (a “claim”).
|
| (b) |
Each
relevant Borrower shall within 3 Business Days of a demand pay to the
Facility Agent for the L/C Bank an amount equal to the amount of any
claim.
|
| (c) |
Each
relevant Borrower acknowledges that the L/C
Bank:
|
| (i) |
is
not obliged to carry out any investigation or seek any confirmation from
any other person before paying a claim; and
|
||
| (ii) |
deals in documents
only and will not be concerned with the legality of a claim or any
underlying transaction or any available set-off, counterclaim or other
defence of any
person.
|
| (d) |
The
obligations of each relevant Borrower under this Clause 5.5 will not
be affected
by:
|
| (i) |
the
sufficiency, accuracy or genuineness of any claim or any other document;
or
|
||
| (ii) | any incapacity of, or limitation on the powers of, any person signing a claim or other document. |
| (e) |
Without
prejudice to any other matter contained in this Clause 5.5, the L/C
Bank shall notify the relevant Borrowers as soon as reasonably practicable
after receiving a
claim.
|
|
5.6
|
Documentary
Credit Indemnities
|
| (a) |
The
relevant Borrower shall within 3 Business Days of demand indemnify the L/C
Bank against any cost, loss or liability incurred by the L/C Bank
(otherwise than by reason of the L/C Bank’s gross negligence or wilful
misconduct) in acting as the L/C Bank under any Documentary Credit
requested by such Borrower provided that this indemnity shall not take
effect until the Merger Closing
Date.
|
| (b) |
Each
Indemnifying Lender shall (according to its L/C Proportion) promptly on
demand indemnify the L/C Bank against any cost, loss or liability incurred
by the L/C Bank (otherwise than by reason of the L/C Bank’s gross
negligence or wilful misconduct) in acting as the L/C Bank under any
Documentary Credit (except to the extent that the L/C Bank has been
reimbursed by an Obligor pursuant to a Finance
Document).
|
| (c) |
If
any Indemnifying Lender is not permitted (by its constitutional documents
or any applicable Law) to comply with paragraph (b) above, then that
Indemnifying Lender will not be obliged to comply with paragraph (b)
and shall instead be deemed to have taken, on the date the relevant
Documentary Credit is issued (or if later, on the date that Indemnifying
Lender’s participation in the Documentary Credit is transferred or
assigned to that Indemnifying Lender in accordance with the terms of this
Agreement), an undivided interest and participation in the Documentary
Credit in an amount equal to its L/C Proportion of that Documentary
Credit. On receipt of demand from the Facility Agent, that
Indemnifying Lender shall pay to the Facility Agent (for the account of
the L/C Bank) an amount equal to its L/C Proportion of the amount demanded
under paragraph (b)
above.
|
| (d) |
The
relevant Borrower shall within 3 Business Days of demand reimburse any
Indemnifying Lender for any payment it makes to the L/C Bank under this
Clause 5.6 in respect of that Documentary Credit unless an Obligor
has already reimbursed the L/C Bank in respect of that
payment.
|
| (e) |
The
obligations of each Indemnifying Lender under this Clause 5.6 are
continuing obligations and will extend to the ultimate balance of sums
payable by that Indemnifying Lender in respect of any Documentary Credit,
regardless of any intermediate payment or discharge in whole or in
part.
|
| (f) |
The
obligations of any Indemnifying Lender under this Clause 5.6 will not
be affected by any act, omission, matter or thing which, but for this
Clause 5.6 would reduce, release or prejudice any of its obligations
under this Clause 5.6 (without limitation and whether or not known to
it or any other person)
including:
|
| (i) |
any
time, waiver or consent granted to, or composition with, any Obligor, any
beneficiary under a Documentary Credit or any other
person;
|
||
| (ii) | the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
| (iii) |
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Obligor, any beneficiary under a Documentary Credit or
any other person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or any failure
to realise the full value of any security;
|
||
| (iv) |
any incapacity or
lack of power, authority or legal personality of or dissolution or change
in the members or status of an Obligor, any beneficiary under a
Documentary Credit or any other
person;
|
| (v) |
any
amendment or restatement (however fundamental) or replacement of a Finance
Document, any Documentary Credit or any other document or
security;
|
||
| (vi) | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Documentary Credit or any other document or security; or |
| (vii) |
any
insolvency or similar proceedings.
|
|
5.7
|
Rights
of Contribution
|
No
Obligor will be entitled to any right of contribution or indemnity from any
Finance Party in respect of any payment it may make under this Clause 5
(Documentary
Credits).
|
5.8
|
Role
of the L/C Bank
|
| (a) |
Nothing
in this Agreement constitutes the L/C Bank as a trustee or fiduciary of
any other
person.
|
| (b) |
The
L/C Bank shall not be bound to account to any Lender for any sum or the
profit element of any sum received by it for its own
account.
|
| (c) |
The
L/C Bank may accept deposits from, lend money to and generally engage in
any kind of banking or other business with any member of the
Group.
|
| (d) |
The
L/C Bank may rely
on:
|
| (i) |
any
representation, notice of document believed by it to be genuine, correct
and appropriately authorised; and
|
||
| (ii) | any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify. |
| (e) |
The
L/C Bank may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
| (f) |
The
L/C Bank may act in relation to the Finance Documents through its
personnel and
agents.
|
| (g) |
The
L/C Bank is not responsible
for:
|
| (i) |
the
adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the L/C Bank, the Facility Agent, the Mandated Lead
Arrangers, an Obligor or any other person given in or in connection with
any Finance Document; or
|
||
| (ii) |
the legality,
validity, effectiveness, adequacy or enforceability of any Finance
Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance
Document.
|
|
5.9
|
Exclusion
of Liability
|
| (a) |
Without
limiting paragraph (b) below, the L/C Bank will not be liable for any
action taken by it under or in connection with any Finance Document,
unless directly caused by its gross negligence or wilful
misconduct.
|
| (b) |
No
Finance Party (other than the L/C Bank) may take any proceedings against
any officer, employee or agent of the L/C Bank in respect of any claim it
might have against the L/C Bank or in respect of any act or omission of
any kind by that officer, employee or agent in relation to any Finance
Document.
|
|
5.10
|
Credit
Appraisal by the Indemnifying
Lenders
|
Without
affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Indemnifying Lender
confirms to the L/C Bank that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of the
risks arising under or in connection with any Finance Document, including but
not limited to, those listed in paragraphs (a) to (d) of Clause 30.16
(Credit Appraisal by the
Lenders).
|
5.11
|
Appointment
and Change of L/C Bank
|
| (a) |
The
Company, with the prior written consent of the relevant Lender, may
designate any Lender with an RCF Facility Commitment as an L/C Bank or as
a replacement therefor, but not with respect to Documentary Credits
already issued by any other L/C
Bank.
|
| (b) |
Any
Lender so designated shall become an L/C Bank under this Agreement by
delivering to the Facility Agent an executed L/C Bank Accession
Certificate.
|
| (c) |
An
L/C Bank may resign as issuer of further Documentary Credits at any time
if (i) the Company and an Instructing Group consent to such resignation or
so require; (ii) there is, in the reasonable opinion of the L/C Bank, an
actual or potential conflict of interest in it continuing to act as L/C
Bank; or (iii) its RCF Facility Commitment is reduced to zero, provided
that the L/C Bank shall not resign until a replacement L/C Bank is
appointed.
|
|
6.1
|
Utilisation
of Ancillary Facilities
|
| (a) |
Each
Borrower (other than the US Borrower), may subject to paragraph (b)
below, at any time at least 35 days prior to the Termination Date in
respect of the Revolving Facility or Secondary Revolving Facility (as
applicable) by delivery of a notice (a “Conversion Notice”) to
the Facility Agent, request an Ancillary Facility to be established by the
conversion of any Lender’s Available Revolving Facility Commitment or
Available Secondary Revolving Facility Commitment, as applicable (or any
part of it) into an Ancillary Facility Commitment with effect from the
date (in this Clause 6, the “Effective Date”)
specified in the Conversion Notice (being a date not less than
3 Business Days after the date such Conversion Notice is received by
the Facility
Agent).
|
| (b) |
Each
Conversion Notice shall
specify:
|
| (i) |
the
nominated Ancillary Facility Lender;
|
||
| (ii) | the type of Ancillary Facility and the currency or currencies in which the relevant Borrower wishes such Ancillary Facility to be available; |
| (iii) |
the proposed Sterling Amount of the original Ancillary
Facility Commitment, being an amount equal to (i) the Available Revolving
Facility Commitment or Available Secondary Revolving Facility Commitment
(as applicable) of the nominated Ancillary Facility Lender or, if less,
(ii) equal to or more than £5 million;
|
||
| (iv) |
the commencement and
expiry date for the relevant Ancillary Facility (such expiry date not to
extend beyond the Final Maturity Date in respect of the relevant Revolving
Facility or Secondary Revolving
Facility);
|
| (v) |
if
the Ancillary Facility is an overdraft facility comprising more than one
account its maximum gross amount (that amount being the “Designated Gross Amount”
and its maximum net amount (that amount being the “Designated Net
Amount”;
|
||
| (vi) |
such other details
as to the nature, amount, fees for and operation of the proposed Ancillary
Facility as the Facility Agent and the nominated Ancillary Facility Lender
may reasonably
require.
|
| (c) |
The
Facility Agent shall promptly notify each of the Lenders having a
Revolving Facility Commitment or Secondary Revolving Facility Commitment
of each Conversion Notice received pursuant to paragraph (a)
above.
|
| (d) |
Any
Lender nominated as an Ancillary Facility Lender which has notified the
Facility Agent of its consent to such nomination shall be authorised to
make the proposed Ancillary Facility available in accordance with the
Conversion Notice (as approved by the Facility Agent) with effect on and
from the Effective Date. No other Lender shall be obliged to
consent to the nomination of the Ancillary Facility
Lender.
|
| (e) |
Any
material variation from the terms of the Ancillary Facility or any
proposed increase or reduction of the Ancillary Facility Commitment shall
be effected on and subject to the provisions of this Clause 6 mutatis mutandis as if
such Ancillary Facility were newly requested, provided that the Sterling
Amount of the Ancillary Facility Outstandings under each Ancillary
Facility shall at no time exceed the related Ancillary Facility
Commitment.
|
| (f) |
Each
relevant Borrower may (subject to compliance with the applicable terms of
the relevant Ancillary Facility) at any time by giving written notice to
the Facility Agent and the relevant Ancillary Facility Lender cancel any
Ancillary Facility Commitment pursuant to and in accordance with
Clause 10.1 (Voluntary
Cancellation), provided that on the date of such cancellation, that
part of such Ancillary Facility Commitment as shall have been so cancelled
shall be converted back into the Revolving Facility Commitment or
Secondary Revolving Facility Commitment, as applicable, of the relevant
Lender unless the Revolving Facility Commitments or Secondary Revolving
Facility Commitments, as applicable, are also cancelled on such
date.
|
| (g) |
The
Ancillary Facility Commitment of any Ancillary Facility Lender shall
terminate and be cancelled on the date agreed therefor between the
relevant Ancillary Facility Lender and the relevant Borrower, provided
such date shall be no later than the Termination Date in respect of the
Revolving Facility or Secondary Revolving Facility, as applicable, in
respect of which such Ancillary Facility Lender has a Commitment (the
“Ancillary Facility
Termination Date”). Any Ancillary Facility Outstandings
on the applicable Ancillary Facility Termination Date shall be repaid in
full by the relevant Borrower on such
date.
|
| (h) |
The
Revolving Facility Commitment or Secondary Revolving Facility Commitment
(as applicable) of each Lender at any time shall be reduced by the amount
of any Ancillary Facility Commitment of such Lender at such time but such
reduced Commitment shall, subject to any other provisions of this
Agreement, automatically be increased by the amount of any portion of its
Ancillary Facility Commitment which ceases to be made available to the
relevant Borrowers for any reason (other than as a result of Utilisation
of it) in accordance with the terms of such Ancillary Facility or is
cancelled pursuant to paragraphs (f) or (g)
above.
|
|
6.2
|
Operation
of Ancillary Facilities
|
| (a) |
Subject
to paragraph (b) below, the terms governing the operation of any
Ancillary Facility (including the rate of interest (including default
interest), fees, commission and other remuneration in respect of such
Ancillary Facility) shall be those determined by agreement between the
Ancillary Facility Lender and the relevant Borrower, provided that such
terms shall be based upon the normal commercial terms and market rates of
the relevant Ancillary Facility
Lender.
|
| (b) |
In
the case of any inconsistency or conflict between the terms of any
Ancillary Facility, the applicable Ancillary Facility Documents and this
Agreement, the terms and provisions of the applicable Ancillary Facility
Document shall prevail unless the contrary intention is expressly provided
for in this
Agreement.
|
| (c) |
Each
relevant Borrower and Ancillary Facility Lender will promptly upon request
by the Facility Agent, supply the Facility Agent with such information
relating to the operation of each Ancillary Facility (including without
limitation details of the Ancillary Facility Outstandings and the Sterling
Amount thereof) as the Facility Agent may from time to time reasonably
request (and each relevant Borrower consents to such documents and
information being provided to the Facility Agent and the other
Lenders).
|
|
6.3
|
Ancillary
Facility Default
|
| (a) |
If
a default occurs under any Ancillary Facility, no Ancillary Facility
Lender may demand repayment of any monies or demand cash cover for any
Ancillary Facility Outstandings, or take any analogous action in respect
of any Ancillary Facility, until the Acceleration
Date.
|
| (b) |
If
an Acceleration Date occurs, the claims of each Lender with an RCF
Facility Commitment and each Ancillary Facility Lender in respect of
amounts outstanding to them under the RCF Facility and Ancillary
Facilities respectively shall be adjusted in accordance with this
Clause 6.3 by making all necessary transfers of such portions of such
claims such that following such transfers the Revolving Facility
Outstandings, Secondary Revolving Facility Outstandings and Ancillary
Facility Outstandings (together with the rights to receive interest, fees
and charges in relation thereto) of (i) each Lender with a Revolving
Facility Commitment or Secondary Revolving Facility Commitment and (ii)
each Ancillary Facility Lender, in each case as at the Acceleration Date
shall be an amount corresponding pro rata to the
proportion that the sum of such Lender’s Revolving Facility Commitment,
Secondary Revolving Facility Commitment and/or (as the case may be)
Ancillary Facility Commitment bears to the sum of all of the Revolving
Facility Commitments, Secondary Revolving Facility Commitments and the
Ancillary Commitments, each as at the Acceleration
Date.
|
| (c) |
No
later than the third Business Day following the Acceleration Date each of
the Ancillary Facility Lenders shall notify the Facility Agent in writing
of the Sterling Amount of its Ancillary Facility Outstandings as at the
close of business on the Acceleration Date, such amount to take account of
any clearing of debits which were entered into the clearing system of such
Ancillary Facility Lenders prior to the Acceleration Date and any amounts
credited to the relevant accounts prior to close of business on the
Acceleration
Date.
|
| (d) |
On
receipt of the information referred to in paragraph (c) above, the
Facility Agent will promptly determine what adjustment payments (if any)
are necessary as between the Lenders participating in the RCF Facility and
each Ancillary Facility Lender in order to ensure that, following such
adjustment payments, the requirements of paragraph (b) above are
complied
with.
|
| (e) |
The
Facility Agent will notify all the Lenders as soon as practicable of its
determinations pursuant to paragraph (d) above, giving details of the
adjustment payments required to be made. Such adjustment
payments shall be payable by the relevant Lenders and shall be made to the
Facility Agent within 3 Business Days following receipt of such
notification from the Facility Agent. The Facility Agent shall
distribute the adjustment payments received, among the Ancillary Facility
Lenders and the Lenders participating in the RCF Facility in order to
satisfy the requirements of paragraph (b)
above.
|
| (f) |
If
at any time following the Acceleration Date, the amount of Revolving
Facility Outstandings or Secondary Revolving Facility Outstandings of any
Lender or Ancillary Facility Outstandings of any Ancillary Facility Lender
used in the Facility Agent’s calculation of the adjustments required under
paragraph (d) above should vary for any reason (other than as a
result of currency exchange fluctuation or other reason which affects all
relevant Lenders equally), further adjustment payments shall be made on
the same basis (mutatis
mutandis) provided for in this
Clause 6.3.
|
| (g) |
In
respect of any amount paid by any Lender (a “Paying Lender”) pursuant
to either of paragraphs (e) or (f) above, as between a relevant
Borrower and the Paying Lender, the amount so paid shall be immediately
due and payable by such relevant Borrower to the Paying Lender and the
payment obligations of such relevant Borrower to the Lender(s) which
received such payment shall be treated as correspondingly reduced by the
amount of such
payment.
|
| (h) |
Each
Lender shall promptly supply to the Facility Agent such information as the
Facility Agent may from time to time request for the purpose of giving
effect to this
Clause 6.3.
|
| (i) |
If
an Ancillary Facility Lender has the benefit of any Encumbrance securing
any of its Ancillary Facilities, the realisations from such security when
enforced will be treated as an amount recovered by such Ancillary Facility
Lender in its capacity as a Lender which is subject to the sharing
arrangements in Clause 35 (Sharing Among the Finance
Parties) to the intent that such realisation should benefit all
Lenders pro
rata.
|
|
7.1
|
Selection
of Currency
|
Each
relevant Borrower under the RCF Facility shall select the currency of an RCF
Facility Advance made to it (which shall be Sterling, Dollars, euro or an
Optional Currency) in the Utilisation Request relating to the relevant Revolving
Facility Advance or Secondary Revolving Facility Advance. Prior to
the Termination Date in relation to the Revolving Facility, all Utilisations of
any RCF Facility shall be made from each RCF Facility pro rata to the Available RCF
Facility Commitments.
|
7.2
|
Unavailability
of Optional Currency
|
If before
10.00 a.m. on the Quotation Date for the relevant Revolving Facility Advance or
Secondary Revolving Facility Advance:
| (a) |
a
Lender notifies the Facility Agent that the relevant Optional Currency is
not readily available to it in the amount required;
or
|
| (b) |
a
Lender notifies the Facility Agent that compliance with its obligation to
participate in the Revolving Facility Advance or Secondary Revolving
Facility Advance in the proposed Optional Currency would contravene a Law
or regulation applicable to
it,
|
the
Facility Agent will promptly give notice to the relevant Borrower to that
effect. In this event, any Lender that gives notice pursuant to this
Clause 7.2 will be required to participate in the relevant Revolving
Facility Advance or Secondary Revolving Facility Advance in Sterling (in an
amount equal to that Lender’s Proportion of the Sterling Amount of the relevant
Revolving Facility Advance or Secondary Revolving Facility Advance or, in
respect of a Rollover Advance, an amount equal to that Lender’s Proportion of
the Sterling Amount of any amount that the Lenders are actually required to
advance in accordance with Clause 8.2 (Rollover Advances)), and its
participation will be treated as a separate Advance denominated in Sterling
during that Term.
|
8.1
|
Repayment
of Revolving Facility and Secondary Revolving Facility
Advances
|
Each
relevant Borrower shall (subject to Clause 8.2 (Rollover Advances)) repay the
full amount of each Revolving Facility Advance and Secondary Revolving Facility
Advance drawn by it on its Repayment Date.
|
8.2
|
Rollover
Advances
|
Without
prejudice to each relevant Borrower’s obligation to repay the full amount of
each Revolving Facility Advance and Secondary Revolving Facility Advance made to
it on the applicable Repayment Date, where, on the same day on which such
relevant Borrower is due to repay a Revolving Facility Advance or Secondary
Revolving Facility Advance (a “Maturing Advance”) such
relevant Borrower has also requested that an Advance under the same Facility in
the same currency as and in an amount which is equal to or less than the
Maturing Advance be made to it (a “Rollover Advance”), subject to
the Lenders being obliged to make such Rollover Advance under Clause 4.1
(Conditions to
Utilisation), the amount to be so repaid and the amount to be so drawn
down shall be netted off against each other so that the amount which such
relevant Borrower is actually required to repay on the applicable Repayment Date
shall be the net amount remaining after such netting off.
|
8.3
|
Cash
Collateralisation of Documentary
Credits
|
A
relevant Borrower may give the Facility Agent not less than 5 Business Days’
prior written notice of its intention to repay all or any portion of a
Documentary Credit requested by it and, having given such notice, shall procure
that the relevant Outstanding L/C Amount in respect of such Documentary Credit
is reduced in accordance with such notice by providing cash cover therefor in
accordance with Clause 1.8 (Documentary Credits) (in each
case,) or by reducing the Outstanding L/C Amount of such Documentary Credit or
by cancelling such Documentary Credit and returning the original to the L/C Bank
or the Facility Agent on behalf of the Lenders.
|
8.4
|
Final
Repayment
|
The
Company shall procure that all amounts outstanding under each of the Revolving
Facility and the Secondary Revolving Facility shall be repaid in full on their
respective Final Maturity Dates.
|
9.1
|
Repayment
of A Facility Outstandings, A1 Facility Outstandings, A2 Facility
Outstandings and A3 Facility
Outstandings
|
The
relevant Borrowers shall make such repayments as may be necessary to ensure that
on each of the dates set out in the table below (each an “Amortisation Repayment Date”)
the aggregate Sterling Amount of the:
|
|
(a)
|
A
Facility Outstandings and A2 Facility Outstandings are reduced (pro rata to the
Outstandings thereunder on the applicable Amortisation Repayment Date) by
an amount equal to the amount set out in the table below (such aggregate
Sterling Amount for such Amortisation Repayment Date being an “A/A2 Facility Repayment
Instalment”); provided that for any
Amortisation Repayment Date after the occurrence of a Paydown Event, the
A/A2 Facility Repayment Instalment shall be reduced by any amount thereof
that would otherwise have been required to be applied in reduction of the
A2 Facility Outstandings but for this proviso, and the relevant Borrowers
shall instead make such repayments solely in relation to the A Facility as
may be necessary to ensure that on such Amortisation Repayment Date the A
Facility Outstandings are reduced by the A/A2 Facility Repayment
Instalment as so reduced; and
|
|
|
(b)
|
A1
Facility Outstandings and A3 Facility Outstandings are reduced (pro rata to the
Outstandings thereunder on the applicable Amortisation Repayment Date) by
an amount equal to the amount set out in the table below (such aggregate
Sterling Amount for such Amortisation Repayment Date being an “A1/A3 Facility Repayment
Instalment”); provided that for any
Amortisation Repayment Date after the occurrence of a Paydown Event, the
A1/A3 Facility Repayment Instalment shall be reduced by any amount thereof
that would otherwise have been required to be applied in reduction of the
A3 Facility Outstandings but for this proviso, and the relevant Borrowers
shall instead make such repayments solely in relation to the A1 Facility
as may be necessary to ensure that on such Amortisation Repayment Date the
A1 Facility Outstandings are reduced by the A1/A3 Facility Repayment
Instalment as so
reduced,
|
and in
addition the relevant Borrower shall make such repayments as may be necessary to
ensure that on the Final Maturity Date for the A Facility it has reduced the A
Facility Outstandings to zero, that on the Final Maturity Date for the A1
Facility it has reduced the A1 Facility Outstandings to zero, that on the Final
Maturity Date for the A2 Facility it has reduced the A2 Facility Outstandings to
zero and that on the Final Maturity Date for the A3 Facility it has reduced the
A3 Facility Outstandings to zero.
|
Amortisation
Repayment Date
|
Amount
Repayable
|
||||
|
A/A2
Facility
|
A1/A3
Facility
|
||||
|
30
September 2007
|
£225
million
|
£12
million
|
|||
|
31
March 2008
|
£225
million
|
£12
million
|
|||
|
30
September 2008
|
£225
million
|
£12
million
|
|||
|
31
March 2009
|
£250
million
|
£15
million
|
|||
|
30
September 2009
|
£450
million
|
£25
million
|
|||
|
31
March 2010
|
£500
million
|
£27
million
|
|||
|
30
September 2010
|
£550
million
|
£30
million
|
|||
|
9.2
|
No
Reborrowing of A Facility Advances, A1 Facility Advances, A2 Facility
Advances or A3 Facility
Advances
|
No
Borrower may reborrow any part of any A Facility Advance, A1 Facility Advance,
A2 Facility Advance or A3 Facility Advance which is repaid.
|
9.3
|
Repayment
of B1 Facility Outstandings, B2 Facility Outstandings, B3 Facility
Outstandings, B4 Facility Outstandings, B5 Facility Outstandings, B6
Facility Outstandings, B7 Facility Outstandings, B8 Facility Outstandings,
B9 Facility Outstandings, B10 Facility Outstandings, B11 Facility
Outstandings, B12 Facility Outstandings, and C Facility
Outstandings
|
The
relevant Borrower shall repay the aggregate outstanding principal amount of the
B1 Facility Advances, the B2 Facility Advances, the B3 Facility Advances, the B4
Facility Advances, the B5 Facility Advances, the B6 Facility Advances, the B7
Facility Advances, the B8 Facility Advances, the B9 Facility Advances, the B10
Facility Advances, the B11 Facility Advances, the B12 Facility Advances and the
C Facility Advances in full in one instalment on the applicable Final Maturity
Date.
|
9.4
|
Repayment
of Additional Facility
Outstandings
|
The
relevant Borrower shall repay the aggregate outstanding principal amount of the
Additional Facility Advances under each Additional Facility on the Final
Maturity Date applicable to such Additional Facility.
|
10.
|
|
10.1
|
Voluntary
Cancellation
|
The
Company may, by giving to the Facility Agent not less than 3 Business Days’
prior written notice to that effect (unless an Instructing Group has given its
prior consent to a shorter period or, with respect to the A1 Facility, A3
Facility, B1 Facility or B7 Facility, a Baseball Instructing Group) cancel any
Available Facility in whole or any part (but if in part, in an amount that
reduces the Sterling Amount of such Facility by a minimum amount of £5,000,000
and an integral multiple of £1,000,000) and any such cancellation shall (subject
to the provisions of Clause 6.1(g) (Utilisation of Ancillary
Facilities)), reduce the relevant Available Commitments of the Lenders
rateably.
|
10.2
|
Notice
of Cancellation
|
Any
notice of cancellation given by the Company pursuant to Clause 10.1 (Voluntary Cancellation) shall
be irrevocable and shall specify the date upon which such cancellation is to be
made and the amount of such cancellation.
|
10.3
|
Cancellation
of Available Commitments
|
|
|
(a)
|
On
each Termination Date any Available Commitments in respect of the Facility
to which such Termination Date relates shall automatically be cancelled
and the Commitment of each Lender in relation to such Facility shall
automatically be reduced to
zero.
|
|
|
(b)
|
No
Available Commitments which have been cancelled hereunder may thereafter
be reinstated.
|
|
11.1
|
Voluntary
Prepayment
|
|
|
(a)
|
Any
Borrower may, by giving to the Facility Agent not less than 5 Business
Days’ prior written notice to that effect (unless an Instructing Group, or
in the case of an A1 Facility Advance, an A3 Facility Advance, a B1
Facility Advance or a B7 Facility Advance, a Baseball Instructing Group,
has given its prior consent to a shorter
period):
|
| (i) |
repay
the A Facility Advance, A1 Facility Advance, A2 Facility Advance or A3
Facility Advance (as applicable) drawn by it in whole or in part (but if
in part, in an amount that reduces the Sterling Amount of the A Facility
Advance, A1 Facility Advance, A2 Facility Advance or A3 Facility Advance
(as applicable) by a minimum amount of £5,000,000 and an integral multiple
of £1,000,000) together with accrued interest on the amount repaid without
premium or penalty but subject to the payment of any Break Costs (if
applicable); and
|
||
| (ii) |
repay
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 and the B12 Facility
Advance drawn by it in whole or in part (but if in part, in an amount that
reduces the Sterling Amount of 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, B10 Facility Advance, the B11 Facility
Advance and the B12 Facility Advance, by a minimum amount of £5,000,000
and an integral multiple of £1,000,000), together with accrued interest on
the amount repaid without premium or penalty but subject to the payment of
any Break Costs (if applicable) and subject to a 1.00% prepayment premium
payable on the principal amount being repaid during the first 18 months
from the Merger Closing Date (or the Structuring Date, whichever is
later).
|
|
|
Any
Additional Facility Borrower may, by giving to the Facility Agent not less
than 5 Business Days’ prior written notice to that effect (unless an
Instructing Group has given its prior consent to a shorter period), repay
any Additional Facility Advance by such minimum amount as is agreed by the
Company and the relevant Additional Facility
Lender.
|
|
|
(b)
|
Without
prejudice to the provisions of paragraph (a) above, the Company may
at its option, at any time on or prior to 31 December 2006, refinance the
whole (but not part only) of any A1 Facility Outstandings, A3 Facility
Outstandings, B1 Facility Outstandings and B7 Facility Outstandings from
the proceeds of a Stand Alone Baseball
Financing.
|
| (c) | (i) |
The
Company may by giving the Facility Agent not less than 5 Business Days’
prior written notice to that effect, prepay the whole or any part of the C
Facility Advance (but if in part, in an amount that reduces the Sterling
Amount of the C Facility Advance by a minimum amount of £5,000,000 and an
integral multiple of £1,000,000), together with accrued interest on the
amount repaid and the applicable Prepayment
Premium.
|
|
| (ii) |
If
the Company prepays the whole or any part of the C Facility Advance, the
Company shall pay to the Facility Agent for the account of the C Facility
Lenders the applicable Prepayment Premium (if
any).
|
“Prepayment Premium” means, in
relation to any portion of the C Facility Advance which is prepaid:
|
|
(A)
|
at
any time on or prior to the second anniversary of the Utilisation Date in
respect of the C Facility (the “Designated
Anniversary”), an amount equal to the greater of (a) 1.0% of the
aggregate principal amount of such C Facility Advance at such time and (b)
the excess (to the extent positive) of (i) the present value at such time
of (A) an amount equal to 102% of the aggregate principal amount of such C
Facility Advance plus (B) any interest payments which would accrue on such
C Facility Advance from such time up to and including the Designated
Anniversary (including accrued and unpaid interest) computed using a
discount rate equal to the Gilt Rate (in relation to C Facility Advances
denominated in Sterling) or the Treasury Rate (in relation to C Facility
Advances denominated in Dollars) in each case plus 50 basis points over
(ii) the aggregate principal amount of such C Facility Advance;
or
|
|
|
(B)
|
at
any time after the Designated Anniversary, an amount equal to the
percentage set out in the table below opposite the applicable period
during which the relevant prepayment is made and calculated on the
principal amount of the C Facility Advance so
prepaid.
|
|
Period
|
Percentage
|
|
|
First
12 months after the Designated Anniversary
|
2%
|
|
|
12
months plus one day to 24 months after the Designated
Anniversary
|
1%
|
|
|
24
months plus one day and at all times thereafter
|
0%
|
|
11.2
|
Right
of Prepayment and Cancellation in relation to a single
Lender
|
If any
sum payable to any Lender by an Obligor is required to be increased under
Clause 17.1 (Tax
Gross-up) or a Lender claims indemnification from a Borrower under the
provisions of Clause 17.3 (Tax Indemnity) or
Clause 18.1 (Increased
Costs) that Borrower may elect by providing, at least 5 Business
Days’ prior notice of its intention to repay or to cause to be repaid such
Lender’s share of the Outstandings to the Facility Agent, to repay such Lender’s
share of the Outstandings on a non-pro rata basis and immediately to cancel any
Commitments then outstanding of such Lender. In such event, such
Borrower shall procure that, on the last day of each of the then current
Interest Periods or Terms (as the case may be) such Lender’s portion of each
Advance to which each such Interest Period or Term relates is repaid and if the
relevant Lender is also an L/C Bank, such Borrower shall procure that the
relevant Outstanding L/C Amount(s) are reduced to zero and if the relevant
Lender is also an Ancillary Facility Lender, such Borrower shall repay the
relevant Ancillary Facility Outstandings in full.
|
11.3
|
Application
of Repayments
|
|
|
(a)
|
To
the extent applicable, any repayment made pursuant to Clauses 11.1
(Voluntary
Prepayment), 12.2 (Repayment from Net
Proceeds), 12.4 (Repayment from Excess Cash
Flow), 12.5 (Repayment from Debt
Proceeds) and 12.6 (Repayment from Equity
Proceeds) shall be applied at the end of the Interest Period or
Term current at the time of receipt of such proceeds; subject to
paragraphs (b) and (c) below, firstly, in repayment of the Term
Facility Outstandings (other than the B7 Facility Outstandings, B8
Facility Outstandings, B9 Facility Outstandings, B10 Facility
Outstandings, B11 Facility Outstandings, B12 Facility Outstandings,
Additional Facility Outstandings or C Facility Outstandings) pro rata to the
aggregate amount of A Facility Outstandings, A1 Facility Outstandings, A2
Facility Outstandings, A3 Facility Outstandings, B1 Facility Outstandings,
B2 Facility Outstandings, B3 Facility Outstandings, B4 Facility
Outstandings, B5 Facility Outstandings and B6 Facility Outstandings on the
date of such repayment until all A Facility Outstandings, all A1 Facility
Outstandings, all A2 Facility Outstandings, all A3 Facility Outstandings,
all B1 Facility Outstandings, all B2 Facility Outstandings, all B3
Facility Outstandings, all B4 Facility Outstandings, all B5 Facility
Outstandings and all B6 Facility Outstandings have been repaid in full;
secondly, in repayment of the B7 Facility Outstandings, the B8 Facility
Outstandings, B9 Facility Outstandings, B10 Facility Outstandings, B11
Facility Outstandings, B12 Facility Outstandings, and Additional Facility
Outstandings; thirdly, in repayment of the C Facility Outstandings; and,
fourthly, in repayment of Revolving Facility Outstandings and Secondary
Revolving Facility Advances on the date of such
repayment.
|
|
|
(b)
|
Any
repayment of A Facility Outstandings, A1 Facility Outstandings, A2
Facility Outstandings and A3 Facility Outstandings (as applicable) made
pursuant to paragraph (a) shall
either:
|
| (i) |
reduce
each of the remaining Repayment Instalments for the A Facility, A1
Facility, the A2 Facility and the A3 Facility (as applicable) on a pro rata basis;
or
|
||
| (ii) |
at
the election of the Company made on or prior to the date upon which such
repayment of the A Facility Outstandings or the A1 Facility Outstandings
or, if prior to the occurrence of a Paydown Event, the A2 Facility
Outstandings or the A3 Facility Outstandings, is made pursuant to
paragraph (a) above, repay the immediately succeeding four (or less,
if there are fewer than four) Repayment Instalments (other than the
Repayment Instalment on the relevant Final Maturity Date) for the A
Facility and/or the A1 Facility and/or, if prior to the occurrence of a
Paydown Event, the A2 Facility and/or the A3 Facility, in chronological
order of maturity, and thereafter in respect of any excess, reduce each of
the remaining Repayment Instalments for the A Facility, the A1 Facility,
the A2 Facility and the A3 Facility (as applicable) on a pro rata
basis.
|
|
|
(c)
|
Without
prejudice to the provisions of paragraph (a) above, any Lender under
the B1 Facility (a “B1
Facility Lender”), the B2 Facility (a “B2 Facility Lender”),
the B3 Facility (a “B3
Facility Lender”), the B4 Facility (a “B4 Facility Lender”),
the B5 Facility (a “B5
Facility Lender”) or the B6 Facility (a “B6 Facility Lender”),
may at its sole discretion during the first 18 months from the Merger
Closing Date (or the Structuring Date, whichever is later) (other than in
the case of a prepayment in full of the B1 Facility, the B2 Facility, the
B3 Facility, the B4 Facility, the B5 Facility or the B6 Facility),
following such Lender’s receipt of notice of prepayment, notify the
Facility Agent within 3 Business Days after receipt of such notice that it
elects to receive its share of the prepayment of the B1 Facility
Outstandings, the B2 Facility Outstandings, the B3 Facility Outstandings,
the B4 Facility Outstandings, the B5 Facility Outstandings or the B6
Facility Outstandings, as applicable, to be made pursuant to
paragraph (a), at the time such prepayment is to be
made. In the event such notification is not made, the amount
which would have been applied in prepaying such B1 Facility Lender, B2
Facility Lender, B3 Facility Lender, B4 Facility Lender, B5 Facility
Lender or B6 Facility Lender, as applicable, shall instead be applied in
prepayment to the Lenders of the A Facility, the A1 Facility and any
accepting B1 Facility Lenders, any accepting B2 Facility Lenders, any
accepting B3 Facility Lenders, any accepting B4 Facility Lenders, any
accepting B5 Facility Lenders or any accepting B6 Facility Lenders, as
applicable, on a pro
rata basis.
|
|
|
(d)
|
Without
prejudice to the provisions of paragraph (a) above, any C Facility
Lender may at its sole discretion at any prior to the fourth anniversary
of the Utilisation Date in respect of the C Facility Advance (other than
in the case of a prepayment in full of the C Facility) notify the Facility
Agent at least 3 Business Days in advance that it does not wish to receive
its share of the prepayment of the C Facility Outstandings to be made
pursuant to paragraph (a), at the time such prepayment is to be
made. In the event of such notification, the amount which would
have been applied in prepaying such C Facility Lender shall instead be
applied in prepayment of any non-declining C Facility Lenders on a pro rata basis, and
thereafter, in prepayment of the Revolving Facility Outstandings and
Secondary Revolving Facility Outstandings in accordance with
paragraph (e)
below.
|
|
|
(e)
|
Any
repayment of any Revolving Facility Outstandings or Secondary Revolving
Facility Outstandings under this Agreement shall be applied first against
Revolving Facility Advances and Secondary Revolving Facility Advances,
pro rata, and
when all Revolving Facility Advances and Secondary Revolving Facility
Advances have been repaid in full, to provide cash collateral in respect
of any Outstanding L/C
Amounts.
|
|
11.4
|
Release
from Obligation to make
Advances
|
A Lender
for whose account a repayment is to be made under Clause 11.2 (Right of Prepayment and Cancellation
in relation to a single Lender) shall not be obliged to
participate in the making of Advances (including Revolving Facility Advances or
Secondary Revolving Facility Advances) or in the issue or counter-guarantee in
respect of Documentary Credits or in the provision of Ancillary Facilities on or
after the date upon which the Facility Agent receives the relevant notice of
intention to repay such Lender’s share of the Outstandings, on which date all of
such Lender’s Available Commitments shall be cancelled and all of its
Commitments shall be reduced to zero.
|
11.5
|
Notice
of Repayment
|
Any
notice of repayment given by a Borrower pursuant to Clauses 11.1 (Voluntary Prepayment) or 11.2
(Right of Prepayment and
Cancellation in relation to a single Lender) shall be irrevocable, shall
specify the date upon which such repayment is to be made and the amount of such
repayment and shall oblige that Borrower to make such repayment on such
date.
|
11.6
|
Restrictions
on Repayment
|
No
Borrower may repay all or any part of any Advance (including, at any
time, a Revolving Facility Advance or Secondary Revolving Facility Advance)
except at the times and in the manner expressly provided for in this
Agreement.
|
11.7
|
Cancellation
upon Repayment
|
No amount
repaid under this Agreement may subsequently be reborrowed other than any amount
of a Revolving Facility Advance or Secondary Revolving Facility Advance repaid
in accordance with Clause 8.1 (Repayment of Revolving Facility and
Secondary Revolving Facility Advances) or any Documentary Credit repaid
in accordance with this Agreement on or prior to the Final Maturity Date in
respect of the Revolving Facility or Secondary Revolving Facility, as
applicable, and upon any repayment (other than in respect of a Revolving
Facility Advance or Secondary Revolving Facility Advance, as aforesaid) the
availability of the relevant Facility shall be reduced by an amount
corresponding to the amount of such repayment and the Available Commitment of
each Lender in relation to that Facility shall be cancelled in an amount equal
to such Lender’s Proportion of the amount repaid. For the avoidance
of doubt, unless expressly agreed to the contrary in the relevant Ancillary
Facility Documents, this Clause 11.7 shall not apply to any Ancillary
Facility.
|
12.1
|
Change
of Control
|
If a
Change of Control occurs, all of the Available Commitments shall immediately be
cancelled, the Commitments of each Lender in respect of each Facility shall be
reduced to zero and the Company shall procure that the Outstandings are
immediately repaid in full together with unpaid interest accrued thereon and
together with the applicable Prepayment Premium (if any, and in respect of the C
Facility only) and all other amounts payable pursuant to Clause 31 (Borrowers’ Indemnities) and
any other provision of this Agreement.
|
12.2
|
Repayment
from Net Proceeds
|
|
|
(a)
|
The
Company shall procure that, subject to paragraph (b) below or unless
the Facility Agent (acting on the instructions of an Instructing Group)
otherwise agrees, an amount equal to the Net Proceeds
received:
|
| (i) |
by
any member of the Bank Group in respect of any Disposal of such member’s
assets or business in aggregate in excess of £35 million (or its
equivalent in other currencies) in any financial year of the Company;
or
|
||
| (ii) |
by
any member of the Bank Group in respect of any insurance policy in
aggregate exceeding £15 million (or its equivalent in other currencies) in
any financial year of the
Company,
|
is
applied in or towards repayment of the Outstandings in accordance with
Clause 11.3 (Application
of Repayments) at the end of the Interest Period next ending on or after
the 10th
Business Day following the date of receipt of such Net Proceeds.
|
|
(b)
|
Paragraph
(a) shall not apply to Net Proceeds
arising:
|
| (i) |
from
a Disposal where such Net Proceeds are used for the acquisition of or
reinvestment in assets used or useful in the Group Business or in a
business whose primary operations are directly related to the Group
Business or are applied towards capital expenditure of the Bank Group, in
each case, within 12 months of the date of the receipt of such Net
Proceeds and to the extent not otherwise restricted by the provisions of
this Agreement;
|
||
| (ii) |
from
any Disposal permitted under Clause 25.6 (Disposals) other than
in relation to Disposals permitted under paragraphs (b) (with respect
to surplus assets only and where the Net Proceeds of such Disposal, or a
series of Disposals forming part of the same transaction exceeds
£5,000,000), (j), (k), (o)(ii), (p), (q), (s) and
(w);
|
||
| (iii) |
from
any insurance recovery, where the Net Proceeds arising out of the same are
to be applied within 12 months of receipt in replacing, reinstating or
repairing the relevant damaged or destroyed assets or in refinancing any
expenditure incurred in the replacement, reinstatement and/or repair of
such assets or for the acquisition of or reinvestment in assets acquired
for use in the Group Business or in a business whose primary operations
are directly related to the Group Business for application towards capital
expenditure; or
|
||
| (iv) |
from
any Content Transaction which shall instead be applied as
follows:
|
|
|
(A)
|
the
first £200 million shall be retained by the Bank Group and, provided that
no Event of Default has occurred or would arise as a result of such
payment, may be applied towards the making of Permitted
Payments;
|
|
|
(B)
|
a
percentage of the remainder shall be applied in mandatory prepayment of
the Term Facilities, such percentage being determined in accordance with
the Leverage Ratio as at the time of such Disposal, in accordance with the
following table:
|
|
Leverage Ratio
|
Percentage
|
|
|
Greater
than 4.0:1
|
50%
|
|
|
Greater
than 3.0:1 but less than or equal to 4.0:1
|
25%
|
|
|
Less
than or equal to 3.0 : 1
|
0%
|
|
|
(C)
|
any
Net Proceeds which are not distributed in accordance with (A) above or
required to be applied in mandatory prepayment in accordance with (B)
above, shall be retained within the Bank
Group,
|
provided
that to the extent that any Net Proceeds are not applied in accordance with
sub-paragraphs (i) or (iii) above (as applicable) within the applicable
time periods specified such amounts shall, subject to Clause 12.3 (Blocked Accounts), be applied
in or towards repayment of Outstandings in accordance with Clause 11.3
(Application of
Repayments).
|
12.3
|
Blocked
Accounts
|
|
|
(a)
|
In
relation to any amount in excess of £30 million of Net Proceeds referred
to in paragraphs (b)(i) and (b)(iii) of Clause 12.2 (Repayment from Net
Proceeds), and any amount of Equity Proceeds contributed to the
Bank Group under sub-paragraph (b)(ii) of Clause 12.6 (Repayment from Equity
Proceeds) pending the acquisition, reinvestment, replacement,
reinstatement or repair or application towards any capital expenditure,
acquisition or investment as contemplated by such provisions, all such
amounts shall be deposited in a Blocked
Account.
|
|
|
(b)
|
At
the election of the relevant Borrower, any amounts required to be prepaid
under Clause 12.2 (Repayment from Net
Proceeds), Clause 12.4 (Repayment from Excess Cash
Flow), Clause 12.5 (Repayment from Debt
Proceeds) or Clause 12.6 (Repayment from Equity
Proceeds) may be deposited into a Blocked Account upon receipt
thereof and applied by the Facility Agent in repayment of the Outstandings
in accordance with Clause 11.3 (Application of
Repayments), at the end of the then applicable Interest
Period.
|
|
|
(c)
|
While
there are any Outstandings or any of the Commitments are available for
drawing, no amount shall be withdrawn from any Blocked Account by any
member of the Group or the Facility Agent except
for:
|
| (i) |
amounts
to be applied (and which are then applied) in accordance with
paragraph (a) above;
|
||
| (ii) |
amounts
to be applied (and which are then applied) in accordance with
paragraph (b) above; or
|
||
| (iii) |
following
the Acceleration Date, applications by the Facility Agent of the whole or
any part of the sums standing to the credit of a Blocked Account in or
towards payment of any sums due and unpaid at any time from any Obligor
under any Finance
Document.
|
|
12.4
|
Repayment
from Excess Cash
Flow
|
|
|
(a)
|
The
Company shall ensure that, to the extent Excess Cash Flow exceeds £25
million in any financial year (from and including the financial year ended
31 December 2006) of the Company, subject to paragraphs (b) and (c)
below, an amount equal
to:
|
| (i) |
50%
of Excess Cash Flow in such financial year of the Company, in the event
that the Compliance Certificate delivered pursuant to Clause 22.5
(Compliance
Certificates) and the annual financial information delivered
pursuant to Clause 22.1 (Financial Statements)
demonstrate that the ratio of Consolidated Net Debt as at the end of such
financial year to Consolidated Operating Cashflow for such financial year
is greater than or equal to 4:1; or
|
||
| (ii) |
25%
of Excess Cash Flow in such financial year of the Company, in the event
that the Compliance Certificate delivered pursuant to Clause 22.5
(Compliance
Certificates) and the annual financial information delivered
pursuant to Clause 22.1 (Financial Statements)
demonstrate that the ratio of Consolidated Net Debt as at the end of such
financial year to Consolidated Operating Cashflow for such financial year,
is less than 4:1 but more than or equal
3.0:1,
|
is,
subject to paragraph (c) of Clause 12.3 (Blocked Accounts), applied in
prepayment of Outstandings in accordance with Clause 11.3 (Application of Repayments)
within 10 Business Days of the filing by the Ultimate Parent of its audited
financial statements, provided that any such payment may be deferred by a period
of up to 30 days if the management of the Ultimate Parent, acting reasonably and
in good faith, are able to demonstrate to the satisfaction of the Facility Agent
(acting reasonably) that the cash reserves of the Group would be reduced
temporarily by such payment to below £200 million (for this purpose disregarding
any availability under the Revolving Facility or Secondary Revolving
Facility).
| (b) |
Subject
to paragraph (c) below, no repayments shall be required under
paragraph (a) above in the event that the Compliance Certificate most
recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the annual financial information delivered
pursuant to Clause 22.1 (Financial Statements)
demonstrate that the ratio of Consolidated Net Debt as at the end of such
financial year to Consolidated Operating Cashflow for the relevant
financial year, is less than
3:1.
|
| (c) |
In
respect of the financial year ended 31 December 2006, the calculation of
any Excess Cash Flow pursuant to paragraphs (a) and (b) above, shall
be calculated by reference to the Excess Cash Flow for the period
commencing on but excluding the Merger Closing Date (or, in the case of
Excess Cash Flow attributable to that part of Bank Group Cash Flow
attributable to the Baseball Group, the Baseball Effective Date) to and
including 31 December
2006.
|
|
12.5
|
Repayment
from Debt
Proceeds
|
|
|
(a)
|
The
Ultimate Parent shall, subject to paragraph (c) of Clause 12.3
(Blocked
Accounts) and paragraph (b) below (or to the Facility Agent
(acting on the instructions of an Instructing Group) having otherwise
agreed), procure that:
|
| (i) |
50%
of Debt Proceeds raised by any member of the Group in connection with any
single raising of Debt Proceeds which exceeds £10 million (and which
is not referred to in paragraphs (ii), (iii) or (iv) below) shall be
applied in prepayment of Outstandings, in accordance with Clause 11.3
(Application of
Repayments) within 10 Business Days following receipt of such Debt
Proceeds;
|
||
| (ii) |
100%
of Debt Proceeds (for this purpose, the words “other than Parent Debt”
shall be deemed omitted from the definition of this term) raised from the
Additional High Yield Notes shall be applied in prepayment of
Outstandings, in accordance with Clause 11.3 (Application of
Repayments) within 10 Business Days following receipt of such Debt
Proceeds raised from the issuance of the Additional High Yield
Notes;
|
||
| (iii) |
an
amount equal to 100% of the Additional Facility Outstandings in relation
to any drawing under any Additional Facility shall be applied in
prepayment of Outstandings in accordance with Clause 11.3 (Application of
Repayments), as promptly as possible and in any case within 10
Business Days of such drawing, provided that pending
such application, any amounts so drawn down shall at all times be held in
an account of the relevant Additional Facility Borrower, which account
must be subject to the Security under the Security Documents;
and
|
||
| (iv) |
100%
of Debt Proceeds raised in reliance on the basket for tax-related
financings provided in paragraph (p) of Clause 25.4 (Financial Indebtedness)
shall be applied in prepayment of Outstandings, in accordance with
Clause 11.3 (Application of
Repayments), within 10 Business Days following receipt of such Debt
Proceeds.
|
|
|
(b)
|
Paragraph
(a) above shall not apply
to:
|
| (i) |
any Financial
Indebtedness raised under the Bridge Facility Agreement, the Alternative
Bridge Facility Agreement, the Exchange Notes or the New High Yield Notes,
and in the case of the latter up to the aggregate of (A) the aggregate
principal amount outstanding under the Bridge Facility or the Alternative
Bridge Facility (as the case may be), (B) any accrued interest thereon,
(C) any contractual premium payable in respect thereof and (D) any fees,
costs, expenses, commissions and other similar charges reasonably incurred
in connection with such financing;
|
||
| (ii) |
any
Financial Indebtedness raised in connection with any High Yield Debt
Refinancing;
|
||
| (iii) |
any
Financial Indebtedness in respect of any Hedging Agreement entered into by
any member of the Group;
|
||
| (iv) |
any
Financial Indebtedness raised by any member of the Group from any other
member of the Group to the extent not otherwise prohibited by this
Agreement;
|
||
| (v) |
any
Financial Indebtedness to the extent raised by any member of the Bank
Group which is permitted by Clause 25.4 (Financial
Indebtedness);
|
| (vi) |
Financial
Indebtedness constituting Parent Debt which is incurred in compliance with
the provisions of Clause 25.18 (Parent Debt), except to
the extent paragraph (a)(ii) above applies
thereto;
|
| (vii) |
any
Financial Indebtedness to the extent raised by any member of the Group
(other than a member of the Bank Group) the proceeds of which are
contributed to the Bank Group in accordance with Clause 24.15 (Contributions to the Bank
Group);
|
| (viii) |
any
Financial Indebtedness constituting any “daylight loans” which are
expressly contemplated by the Steps Paper (and as such term is defined or
referred to therein);
|
| (ix) | any net cash proceeds of any debt issuances which are expressly contemplated in the Steps Paper; |
| (x) |
with
the prior written consent of an Instructing Group, any Financial
Indebtedness raised by any member of the Group which is not a member of
the Bank Group, the proceeds of which shall be applied towards the
financing of an acquisition to be made by such person or any other member
of the Group which is not a member of the Bank
Group;
|
| (xi) | any Financial Indebtedness which constitutes Merger Indebtedness; |
| (xii) |
any Financial
Indebtedness contemplated by the provisions of the Commitment Letter and
to be incurred following delivery of a Structure
Notice;
|
| (xiii) |
any
Financial Indebtedness raised by any Permitted Joint
Venture;
|
| (xiv) |
any
proceeds of any Stand Alone Baseball Financing;
or
|
| (xv) | any proceeds of any Alternative Baseball Financing, |
provided
that in the case of sub-paragraph (vii) above, such Debt
Proceeds shall within 90 days of receipt thereof, be contributed into
the Bank Group and deposited into a Blocked Account as contemplated by
Clause 12.3 (Blocked
Accounts) and if not applied within 90 days after such deposit
shall, subject to paragraph (b) of Clause 12.3 (Blocked Accounts), be applied
in or towards repayment of Outstandings in accordance with Clause 11.3
(Application of
Repayments).
|
12.6
|
Repayment
from Equity
Proceeds
|
|
|
(a)
|
The
Ultimate Parent shall procure that subject to paragraph (c) of
Clause 12.3 (Blocked Accounts) and
paragraph (b) below, an amount equal
to:
|
| (i) |
50%
of Equity Proceeds, in the event that the Compliance Certificate most
recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the quarterly financial information delivered
pursuant to Clause 22.1 (Financial Statements)
for each Financial Quarter ending on the Quarter Date to which such
Compliance Certificate relates demonstrate that the ratio of Consolidated
Net Debt as at such Quarter Date to Consolidated Operating Cashflow for
the Financial Quarter ending on such Quarter Date, calculated on an
annualised basis, is more than 3.5:1;
|
||
| (ii) |
25%
of Equity Proceeds, in the event that the Compliance Certificate most
recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the quarterly financial information delivered
pursuant to Clause 22.1 (Financial Statements)
for each Financial Quarter ending on the Quarter Date to which such
Compliance Certificate relates demonstrate that the ratio of Consolidated
Net Debt as at such Quarter Date to Consolidated Operating Cashflow for
the Financial Quarter ending on such Quarter Date calculated on an
annualised basis, is 3.5:1 or less but is more than 3:1;
or
|
||
| (iii) |
0%
of Equity Proceeds, in the event that the Compliance Certificate most
recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the quarterly financial information delivered
pursuant to Clause 22.1 (Financial Statements)
for each Financial Quarter ending on the Quarter Date to which such
Compliance Certificate relates demonstrate that the ratio of Consolidated
Net Debt as at such Quarter Date to Consolidated Operating Cashflow for
the Financial Quarter ending on such Quarter Date calculated on an
annualised basis, is equal to or less than
3:1,
|
shall be
contributed to a member of the Bank Group in accordance with Clause 24.15
(Contributions to the Bank
Group) and applied in or towards prepayment of Outstandings in accordance
with Clause 11.3 (Application of Repayments),
in each case, within 10 Business Days following receipt of such Equity
Proceeds provided that no amount of Equity Proceeds shall be required to be
prepaid under this paragraph (a) unless the amount of Equity Proceeds
received by the Group in connection with any single raising of Equity Proceeds
exceeds £10 million (or its equivalent in other currencies).
|
|
(b)
|
Paragraph
(a) shall not apply to any Equity
Proceeds:
|
| (i) |
to
the extent that any Borrower has made a voluntary prepayment of the
Outstandings in accordance with Clause 11.1 (Voluntary Prepayment) using the
proceeds of any Parent Debt (the “Voluntary Prepayment Amount”) and, in the
case of the Revolving Facility Outstandings and Secondary Revolving
Facility Outstandings, the aggregate Revolving Facility Commitments and
Secondary Revolving Facility Commitments have been permanently cancelled
by an amount equal to the amount of Revolving Facility Outstandings and/or
Secondary Revolving Facility Outstandings so prepaid and such Equity
Proceeds are applied in prepayment of the Parent Debt so
used;
|
| (ii) |
to
the extent contributed to or invested in the Bank Group in accordance with
Clause 24.15 (Contributions to the Bank
Group) and thereafter applied by the ultimate recipient thereof
towards capital expenditure or the purchase price of any acquisition or
investment to the extent permitted by Clause 25.13 (Acquisitions and
Investments);
|
||
| (iii) |
to
the extent raised by any member of the Group which is a Joint Venture but
which is not a member of the Bank Group and applied for its own
purposes;
|
||
| (iv) |
arising
from the exercise of stock options or any similar securities issued to
directors, officers, employees or consultants of any member of the
Group;
|
||
| (v) |
in
respect of any equity issuance expressly contemplated in the Steps Paper;
or
|
| (vi) |
in
respect of any New Equity issued by the Ultimate Parent and applied for
the purposes permitted under Clause 23.3 (Equity Cure Right) or
paragraph (o) of Clause 25.13 (Acquisitions and
Investments),
|
|
|
|
provided
that in the case of sub-paragraph (ii) above, such Equity
Proceeds shall immediately upon their contribution into the Bank
Group, be deposited into a Blocked Account and if not applied in
accordance with sub-paragraph (ii), as the case may be, within 180
days of such receipt, shall, subject to paragraph (b) of
Clause 12.3 (Blocked Accounts) be
applied in or towards repayment of Outstandings in accordance with
Clause 11.3 (Application of
Repayments).
|
|
12.7
|
Trapped
Cash
|
If:
|
|
(a)
|
moneys
are required to be applied in prepayment or repayment of the Facilities
under this Clause 12 (Mandatory Prepayments and
Cancellation), but in order to be so applied such moneys need to be
upstreamed or otherwise transferred from one member of the Group to
another member of the Group to effect such prepayment or repayment;
and
|
|
|
(b)
|
the
Company and the relevant members of the Group determine in good faith that
such moneys cannot be so upstreamed or transferred without breaching a
financial assistance prohibition, causing a director to breach his or her
fiduciary duties to a company or without breaching some other legal
prohibition, or such upstreaming or transfer is otherwise unlawful or
would result in material adverse tax consequences for the Company or such
relevant members of the
Group,
|
then,
there will be no obligation to make such payment or prepayment until such
impediment no longer applies, provided that:
| (i) |
during
such period, (to the extent lawful) the monies will be placed in a Blocked
Account;
|
||
| (ii) |
in
the case of any impediment relating to potential material adverse tax
consequences, the Company shall procure that the prepayment obligations
under this Clause 12 (Mandatory Prepayments and
Cancellation), shall be complied with by using the proceeds
retained to repay Outstandings owing by the member of the Group which
received such proceeds provided that such payment itself does not create a
potential material adverse tax consequence;
and
|
||
| (iii) |
the
Company and the relevant members of the Group will use all reasonable
endeavours to overcome any impediments described in this
Clause.
|
|
13.1
|
Interest
Payment Date for Revolving Facility Advances and Secondary Revolving
Facility
Advances
|
On (a)
each Repayment Date (and, if the Term of any Revolving Facility Advance or
Secondary Revolving Facility Advance exceeds 6 months, on the expiry of each
period of 6 months during such Term) or (b) if Clause 17.2(d) applies, the
relevant Confirmation Date, the relevant Borrowers shall pay accrued interest on
each Revolving Facility Advance or Secondary Revolving Facility Advance
made to it.
|
13.2
|
Interest
Rate for Revolving Facility Advances and Secondary Revolving Facility
Advances
|
The rate
of interest applicable to each Revolving Facility Advance and Secondary
Revolving Facility Advance during its Term shall be the rate per annum which is
the sum of the Revolving Facility Margin (with respect to the Revolving
Facility) or the Secondary Revolving Facility Margin (with respect to the
Secondary Revolving Facility), the Associated Costs Rate for such Advance at
such time (if applicable) and, in relation to any Revolving Facility Advance or
Secondary Revolving Facility Advance denominated in euro, EURIBOR, or in
relation to any Revolving Facility Advance or Secondary Revolving Facility
Advance denominated in any other currency, LIBOR, for the relevant
Term.
|
13.3
|
Margin
Ratchet for Revolving Facility Advances and, Prior to a Paydown Event,
Secondary Revolving Facility
Advances
|
|
|
(a)
|
Subject
to paragraph (c) of this Clause 13.3, if in respect of any
Quarter Date falling not less than 3 months after the Merger Closing Date,
the ratio of Consolidated Net Debt to Consolidated Operating Cashflow
computed on the same basis as the ratio set out in paragraph (a) of
Clause 23.2 (Ratios) is within the
range of ratios set out in column 1 of the table set out below, then the
Revolving Facility Margin (and, if a Paydown Event shall not yet have
occurred, the Secondary Revolving Facility Margin) shall be reduced or
increased to the percentage rate per annum set out opposite the relevant
range in column 2.
|
|
Leverage
Ratio
|
Margin
|
|
|
Less
than 3.00 : 1
|
1.250%
|
|
|
Greater
than or equal to 3.00 : 1 but less than 3.40 :
1
|
1.375%
|
|
|
Greater
than or equal to 3.40 : 1 but less than 3.80 : 1
|
1.500%
|
|
|
Greater
than or equal to 3.80 : 1 but less than 4.20 :
1
|
1.625%
|
|
|
Greater
than or equal to 4.20 : 1 but less than 4.50 :
1
|
1.750%
|
|
|
Greater
than or equal to 4.50 : 1 but less than 4.80 : 1
|
1.875%
|
|
|
Greater
than or equal to 4.80 : 1 but less than 5.00 : 1
|
2.125%
|
|
|
Greater
than or equal to 5.00
|
2.250%
|
|
|
(b)
|
Any
reduction or increase to the Revolving Facility Margin (and, if a Paydown
Event shall not yet have occurred, the Secondary Revolving Facility
Margin) in accordance with paragraph (a) above shall take effect in
relation to Revolving Facility Advances (and, if a Paydown
Event shall not yet have occurred, Secondary Revolving Facility Advances)
with effect from the date of receipt by the Facility Agent in respect of
the relevant Quarter Date
of:
|
| (i) |
the
quarterly financial information required to be delivered in accordance
with Clause 22.1 (Financial Statements);
and
|
||
| (ii) |
a
Compliance Certificate required to be delivered in accordance with
Clause 22.5 (Compliance
Certificates) evidencing the relevant ratio of Consolidated Net
Debt to Consolidated Operating
Cashflow,
|
and shall
apply until the date of receipt by the Facility Agent of the quarterly financial
information and Compliance Certificate in respect of the next succeeding Quarter
Date on which the financial covenants are required to be tested pursuant to
Clause 23.2 (Ratios) having regard to the
provisions of paragraph (f) thereof (or if such financial information and
Compliance Certificate are not so delivered, the last day upon which such
financial information and Compliance Certificate should have been so delivered
in accordance with Clause 22.1 (Financial Statements) and
Clause 22.5 (Compliance
Certificates) in respect of such Quarter Date) whereupon the Revolving
Facility Margin (and, if a Paydown Event shall not yet have occurred, the
Secondary Revolving Facility Margin) shall be recalculated on the basis of such
financial information and Compliance Certificate.
|
|
(c)
|
Upon
the occurrence of any Event of Default, the Revolving Facility Margin
(and, if a Paydown Event shall not yet have occurred, the Secondary
Revolving Facility Margin) shall revert to 2.25% and shall remain at such
rate for so long as such Event of Default is continuing and when such
Event of Default ceases to be continuing it shall
revert:
|
| (i) |
in
the case of an Event of Default set out in paragraph (c) of
Clause 27.2 (Covenants), upon the
date on which the Facility Agent has received a Compliance Certificate
confirming compliance with the financial covenants set out in
Clause 23 (Financial Condition);
or
|
||
| (ii) |
in
the case of any other Event of Default either (A) upon the date on which
the Facility Agent has received a certificate of a duly authorised officer
of the Company certifying that such Event of Default has been remedied, in
which case, immediately upon receipt of such certificate or (B) where the
Lenders have waived such Event of Default in accordance with the terms of
this Agreement, immediately upon the Facility Agent having confirmed to
the Company that such Event of Default has been
waived,
|
|
|
(x)
|
in
the case of an Event of Default of the type referred to in
paragraph (c)(i) above, the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow set out in the Compliance Certificate
referred to therein; or
|
|
|
(y)
|
in
the case of any other Event of Default, the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow set out in the Compliance Certificate
most recently delivered to the Facility Agent prior to the remedy or
waiver of such Event of Default.
|
|
13.4
|
Margin
Ratchet for Secondary Revolving Facility Advances on and after a Paydown
Event
|
|
|
The
following paragraphs of this Clause 13.4 shall apply on and after the
occurrence of a Paydown Event (including giving effect to the Secondary
Revolving Facility Margin that applies under the Leverage Ratio as of the
Quarter Date immediately prior to the Paydown
Event):
|
|
|
(a)
|
Subject
to paragraph (c) of this Clause 13.4, if in respect of any Quarter
Date falling not less than 3 months after the Merger Closing Date, the
ratio of Consolidated Net Debt to Consolidated Operating Cashflow computed
on the same basis as the ratio set out in paragraph (a) of
Clause 23.2 (Ratios) is within the
range of ratios set out in column 1 of the table set out below, then the
Secondary Revolving Facility Margin shall be reduced or increased to the
percentage rate per annum set out opposite the relevant range in column
2.
|
|
Leverage
Ratio
|
Margin
|
|
|
Less
than 3.00 : 1
|
2.625%
|
|
|
Greater
than or equal to 3.00 : 1 but less than 3.40 :
1
|
2.750%
|
|
|
Greater
than or equal to 3.40 : 1 but less than 3.80 : 1
|
2.875%
|
|
|
Greater
than or equal to 3.80 : 1 but less than 4.20 :
1
|
3.000%
|
|
|
Greater
than or equal to 4.20 : 1
|
3.125%
|
|
|
(b)
|
Any
reduction or increase to the Secondary Revolving Facility Margin in
accordance with paragraph (a) above shall take effect in relation to
Secondary Revolving Facility Advances with effect from the date of receipt
by the Facility Agent in respect of the relevant Quarter Date
of:
|
| (i) |
the
quarterly financial information required to be delivered in accordance
with Clause 22.1 (Financial Statements);
and
|
||
| (ii) |
a
Compliance Certificate required to be delivered in accordance with
Clause 22.5 (Compliance
Certificates) evidencing the relevant ratio of Consolidated Net
Debt to Consolidated Operating
Cashflow,
|
and shall
apply until the date of receipt by the Facility Agent of the quarterly financial
information and Compliance Certificate in respect of the next succeeding Quarter
Date on which the financial covenants are required to be tested pursuant to
Clause 23.2 (Ratios) having regard to the
provisions of paragraph (f) thereof (or if such financial information and
Compliance Certificate are not so delivered, the last day upon which such
financial information and Compliance Certificate should have been so delivered
in accordance with Clause 22.1 (Financial Statements) and
Clause 22.5 (Compliance
Certificates) in respect of such Quarter Date) whereupon the Secondary
Revolving Facility Margin shall be recalculated on the basis of such financial
information and Compliance Certificate.
|
|
(c)
|
Upon
the occurrence of any Event of Default, the Secondary Revolving Facility
Margin shall revert to 3.125% and shall remain at such rate for so long as
such Event of Default is continuing and when such Event of Default ceases
to be continuing it shall
revert:
|
| (i) |
in
the case of an Event of Default set out in paragraph (c) of
Clause 27.2 (Covenants), upon the
date on which the Facility Agent has received a Compliance Certificate
confirming compliance with the financial covenants set out in
Clause 23 (Financial Condition);
or
|
||
| (ii) |
in the case of any other Event of Default
either (A) upon the date on which the Facility Agent has received a
certificate of a duly authorised officer of the Company certifying that
such Event of Default has been remedied, in which case, immediately upon
receipt of such certificate or (B) where the Lenders have waived such
Event of Default in accordance with the terms of this Agreement,
immediately upon the Facility Agent having confirmed to the Company that
such Event of Default has been
waived,
|
in each
case, to the applicable rate provided in paragraph (a) above by reference
to:
|
|
(d)
|
in
the case of an Event of Default of the type referred to in paragraph
(c)(i) above, the ratio of Consolidated Net Debt to Consolidated Operating
Cashflow set out in the Compliance Certificate referred to therein;
or
|
|
|
(e)
|
in
the case of any other Event of Default, the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow set out in the Compliance Certificate
most recently delivered to the Facility Agent prior to the remedy or
waiver of such Event of
Default.
|
|
14.1
|
Interest
Periods for Term Facility
Advances
|
The
period for which a Term Facility Advance is outstanding shall be divided into
successive periods (each an “Interest Period”) each of
which (other than the first) shall start on the last day of the preceding such
period.
|
14.2
|
Duration
|
The
duration of each Interest Period shall, save as otherwise provided in this
Agreement, be 1, 2, 3 or 6 months, or such other period of up to 12 months as
all the Lenders holding Commitments (in the case of the first Interest Period
for a Term Facility Advance, and thereafter, Outstandings) under the relevant
Facility may agree, in each case, as the relevant Borrower may select by no
later than 2:00 p.m. on the date falling 3 Business Days before the first
day of the relevant Interest Period, provided that:
|
|
(a)
|
if such Borrower fails to give such notice
of selection in relation to an Interest Period, the duration of that
Interest Period shall, subject to the other provisions of this
Clause 14, be 3 months;
|
|
|
(b)
|
prior to the Syndication Date, unless the
Facility Agent otherwise agrees, the duration of each Interest Period
shall be 1 month (or, if less, such duration as may be necessary to ensure
that such Interest Period ends on the Syndication Date);
and
|
|
|
(c)
|
any
Interest Period that would otherwise end during the month preceding or
extend beyond a Repayment Date relating to the Term Facility Outstandings
shall be of such duration that it shall end on that Repayment Date if
necessary to ensure that there are Advances under the relevant Term
Facility with Interest Periods ending on the relevant Repayment Date in a
sufficient aggregate amount to make the repayment due on that Repayment
Date.
|
|
14.3
|
Consolidation
of Term Facility
Advances
|
If 2 or
more Interest Periods in respect of Term Facility Advances denominated in the
same currency under the same Term Facility end at the same time, then on the
last day of those Interest Periods, the Term Facility Advances to which those
Interest Periods relate shall be consolidated into and treated as a single Term
Facility Advance.
|
14.4
|
Division
of Term Facility
Advances
|
Subject
to the requirements of Clause 14.2 (Duration), the Company may,
by no later than 2:00 p.m. on the date falling 3 Business Days before the first
day of the relevant Interest Period, direct that any Term Facility Advance
borrowed by it shall, at the beginning of the next Interest Period relating to
it, be divided into (and thereafter, save as otherwise provided in this
Agreement, be treated in all respects as) 2 or more Advances in such amounts
(equal in aggregate to the Sterling Amount of the Term Facility Advance being so
divided) as shall be specified by the Company in such notice provided that the
Company shall not be entitled to make such a direction if:
|
|
(a)
|
as
a result of so doing, there would be more than 10 Advances
outstanding under the relevant Term Facility;
or
|
|
|
(b)
|
any Term Facility Advance thereby coming
into existence would have a Sterling Amount of less than £25
million.
|
|
14.5
|
Payment
of Interest for Term Facility
Advances
|
On (a)
the last day of each Interest Period (or if such day is not a Business Day, on
the immediately succeeding Business Day in the then current month (if there is
one) or the preceding Business Day (if there is not)), and if the relevant
Interest Period exceeds 6 months, on the expiry of each 6 month period during
that Interest Period, or (b) if Clause 17.2(d) applies, the relevant
Confirmation Date, the relevant Borrower shall pay accrued interest on the Term
Facility Advance to which such Interest Period relates.
|
14.6
|
Interest
Rate for Term Facility
Advances
|
The rate
of interest applicable to a Term Facility Advance at any time during an Interest
Period relating to it shall be the rate per annum which is the sum of the
Applicable Margin, the Associated Costs Rate for such Advance at such time (if
applicable) and, LIBOR, for such Interest Period.
|
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)
|
|
|
(a)
|
Subject
to paragraph (c) of this Clause 14.7, if in respect of any
Quarter Date falling not less than 3 months after the Merger Closing Date
the ratio of Consolidated Net Debt to Consolidated Operating Cashflow
computed on the same basis as the ratio set out in paragraph (a) of
Clause 23.2 (Ratios) is within the
range of ratios set out in column 1 of the table set out below, then the A
Facility Margin and the A1 Facility Margin (and, prior to the occurrence
of a Paydown Event, the A2 Facility Margin and A3 Facility Margin) shall
be reduced or increased to the percentage rate per annum set out opposite
the relevant range in column
2.
|
|
Leverage
Ratio
|
Margin
|
||
|
Less
than 3.00 : 1
|
1.250%
|
||
|
Greater
than or equal to 3.00 : 1 but less than 3.40 :
1
|
1.375%
|
||
|
Greater
than or equal to 3.40 : 1 but less than 3.80 : 1
|
1.500%
|
||
|
Greater
than or equal to 3.80 : 1 but less than 4.20 :
1
|
1.625%
|
||
|
Greater
than or equal to 4.20 : 1 but less than 4.50 :
1
|
1.750%
|
||
|
Greater
than or equal to 4.50 : 1 but less than 4.80 : 1
|
1.875%
|
||
|
Greater
than or equal to 4.80 : 1 but less than 5.00 : 1
|
2.125%
|
||
|
Greater
than or equal to 5.00
|
2.250%
|
|
|
(b)
|
Any
reduction or increase to the A Facility Margin or A1 Facility Margin (and,
prior to the occurrence of a Paydown Event, the A2 Facility Margin or A3
Facility Margin) in accordance with paragraph (a) above shall take
effect in relation to A Facility Advances or A1 Facility Advances (and,
prior to the occurrence of a Paydown Event, A2 Facility Advances or A3
Facility Advances) with effect from the date of receipt by the Facility
Agent in respect of the relevant Quarter Date
of:
|
| (i) |
the
quarterly financial information required to be delivered in accordance
with Clause 22.1 (Financial Statements);
and
|
||
| (ii) |
a
Compliance Certificate required to be delivered in accordance with
Clause 22.5 (Compliance
Certificates) evidencing the relevant ratio of Consolidated Net
Debt to Consolidated Operating
Cashflow,
|
and shall
apply until the date of receipt by the Facility Agent of the quarterly financial
information and Compliance Certificate in respect of the next succeeding Quarter
Date on which the financial covenants are required to be tested pursuant to
Clause 23.2 (Ratios) having regard to the
provisions of paragraph (f) thereof (or if such financial information and
Compliance Certificate are not so delivered, the last day upon which such
financial information and Compliance Certificate should have been so delivered
in accordance with Clause 22.1 (Financial Statements)
Clause 22.5 (Compliance
Certificates) in respect of such Quarter Date) whereupon the A Facility
Margin or the A1 Facility Margin (and, prior to the occurrence of a Paydown
Event, the A2 Facility Margin or A3 Facility Margin), as applicable, shall be
recalculated on the basis of such financial information and Compliance
Certificate.
|
|
(c)
|
Upon
the occurrence of any Event of Default, the A Facility Margin or the A1
Facility Margin (and, prior to the occurrence of a Paydown Event, the A2
Facility Margin or A3 Facility Margin) shall revert to 2.25% and shall
remain at such rate for so long as the Event of Default is continuing and
when such Event of Default ceases to be continuing it shall
revert:
|
| (i) |
in
the case of an Event of Default set out in paragraph (c) of
Clause 27.2 (Covenants), upon the
date on which the Facility Agent has received a Compliance Certificate
confirming compliance with the financial covenants set out in
Clause 23 (Financial Condition);
or
|
||
| (ii) |
in the case of any other Event of Default
either (A) upon the date on which the Facility Agent has received a
certificate of a duly authorised officer of the Company certifying that
such Event of Default has been remedied, immediately upon receipt of such
certificate or (B) where the Lenders have waived such Event of Default in
accordance with the terms of this Agreement, immediately upon the Facility
Agent having confirmed to the Company that such Event of Default has been
waived,
|
|
|
in
each case, to the applicable rate provided in paragraph (a) above by
reference to:
|
| (x) |
in
the case of an Event of Default of the type referred to in
paragraph (c)(i) above, the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow set out in the Compliance Certificate
referred to therein; or
|
||
| (y) |
in
the case of any other Event of Default, the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow set out in the Compliance Certificate
most recently delivered to the Facility Agent prior to the remedy or
waiver of such Event of
Default.
|
|
14.8
|
Margin
Ratchet for A2 Facility Advances and A3 Facility Advances on and after a
Paydown Event
|
|
|
The
following paragraphs of this Clause 14.8 apply on and after the
occurrence of a Paydown Event (including giving effect to the A2 Facility
Margin and A3 Facility Margin that apply under the Leverage Ratio as of
the Quarter Date immediately prior to the Paydown
Event):
|
|
(a)
|
Subject
to paragraph (c) of this Clause 14.8, if in respect of any
Quarter Date falling not less than 3 months after the Merger Closing Date
the ratio of Consolidated Net Debt to Consolidated Operating Cashflow
computed on the same basis as the ratio set out in paragraph (a) of
Clause 23.2 (Ratios) is within the
range of ratios set out in column 1 of the table set out below, then the
A2 Facility Margin and A3 Facility Margin shall be reduced or increased to
the percentage rate per annum set out opposite the relevant range in
column 2.
|
|
Leverage
Ratio
|
Margin
|
|
|
Less
than 3.00 : 1
|
2.625%
|
|
|
Greater
than or equal to 3.00 : 1 but less than 3.40 : 1
|
2.750%
|
|
|
Greater
than or equal to 3.40 : 1 but less than 3.80 : 1
|
2.875%
|
|
|
Greater
than or equal to 3.80 : 1 but less than 4.20 : 1
|
3.000%
|
|
|
Greater
than or equal to 4.20 : 1
|
3.125%
|
|
|
|
(b) |
Any
reduction or increase to the A2 Facility Margin and A3 Facility Margin in
accordance with paragraph (a) above shall take effect in relation to
A2 Facility Advances and A3 Facility Advances with effect from the date of
receipt by the Facility Agent in respect of the relevant Quarter Date
of:
|
|
(i)
|
the
quarterly financial information required to be delivered in accordance
with Clause 22.1 (Financial Statements);
and
|
|
(ii)
|
a
Compliance Certificate required to be delivered in accordance with
Clause 22.5 (Compliance
Certificates) evidencing the relevant ratio of Consolidated Net
Debt to Consolidated Operating
Cashflow,
|
and shall
apply until the date of receipt by the Facility Agent of the quarterly financial
information and Compliance Certificate in respect of the next succeeding Quarter
Date on which the financial covenants are required to be tested pursuant to
Clause 23.2 (Ratios) having regard to the
provisions of paragraph (f) thereof (or if such financial information and
Compliance Certificate are not so delivered, the last day upon which such
financial information and Compliance Certificate should have been so delivered
in accordance with Clause 22.1 (Financial Statements)
Clause 22.5 (Compliance
Certificates) in respect of such Quarter Date) whereupon the A2 Facility
Margin shall be recalculated on the basis of such financial information and
Compliance Certificate.
|
(c)
|
Upon
the occurrence of any Event of Default, the A2 Facility Margin shall
revert to 3.125% and the A3 Facility Margin shall revert to 3.125% and
shall remain at such rate for so long as the Event of Default is
continuing and when such Event of Default ceases to be continuing it shall
revert:
|
|
|
(i)
|
in
the case of an Event of Default set out in paragraph (c) of
Clause 27.2 (Covenants), upon the
date on which the Facility Agent has received a Compliance Certificate
confirming compliance with the financial covenants set out in
Clause 23 (Financial Condition);
or
|
||
|
(ii)
|
in
the case of any other Event of Default either (A) upon the date on which
the Facility Agent has received a certificate of a duly authorised officer
of the Company certifying that such Event of Default has been remedied,
immediately upon receipt of such certificate or (B) where the Lenders have
waived such Event of Default in accordance with the terms of this
Agreement, immediately upon the Facility Agent having confirmed to the
Company that such Event of Default has been waived,
|
||
|
|
in
each case, to the applicable rate provided in paragraph (a) above by
reference to:
|
|
|
|
(x)
|
in
the case of an Event of Default of the type referred to in
paragraph (c)(i) above, the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow set out in the Compliance Certificate
referred to therein; or
|
|
|
|
(y)
|
in
the case of any other Event of Default, the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow set out in the Compliance Certificate
most recently delivered to the Facility Agent prior to the remedy or
waiver of such Event of
Default.
|
|
14.9
|
Interest
on Additional Facilities
|
| The rate of interest on any Additional Facility Loan and the timing of payment of such interest shall be regulated by the relevant Additional Facility Accession Agreement. |
|
14.10
|
Notification
|
| The Facility Agent shall promptly notify the relevant Borrowers and the Lenders of each determination of LIBOR, EURIBOR, the Associated Costs Rate, and any change to the proposed length of a Term or Interest Period or any interest rate occasioned by the operation of Clause 15 (Market Disruptions and Alternative Interest Rates). |
|
15.1
|
Market
Disruption
|
| If, in relation to any Interest Period or Term: |
|
(a)
|
EURIBOR
or LIBOR, as the case may be, is to be determined by reference to the
Reference Banks and, at or about 11.00 a.m. (Brussels time in the
case of EURIBOR or London time in the case of LIBOR) on the Quotation Date
for such Interest Period or Term, none or only one of the Reference Banks
supplies a rate for the purpose of determining EURIBOR or LIBOR, as the
case may be, for the relevant period;
or
|
|
(b)
|
before
the close of business in London on the Quotation Date for such Interest
Period or Term, the Facility Agent has been notified by a Lender or each
of a group of Lenders to whom in aggregate 40% or more of the relevant
Advance is owed (or, in the case of an undrawn Advance, if made, would be
owed) that the cost to it of obtaining matching deposits for the relevant
Advance in the Relevant Interbank Market would be in excess of EURIBOR or
LIBOR, as the case may be,
|
|
| then the Facility Agent shall notify the Company and the Lenders of such event and, notwithstanding anything to the contrary in this Agreement, Clause 15.2 (Substitute Interest Period or Term and Interest Rate) shall apply (if the relevant Advance is a Term Facility Advance which is already outstanding or a Rollover Advance). If either paragraph (a) or (b) applies to a proposed Advance other than a Rollover Advance, such Advance shall not be made. |
|
15.2
|
Substitute
Interest Period or Term and Interest
Rate
|
|
(a)
|
If
paragraph (a) of Clause 15.1 (Market Disruption)
applies, the duration of the relevant Interest Period or Term shall be 1
month or, if less, such that it shall end on the Termination Date in
respect of the Revolving Facility (in the case of a Rollover Advance) or
the next succeeding Repayment Date (in the case of a Term Facility
Advance).
|
|
(b)
|
If
either paragraph of Clause 15.1 (Market Disruption)
applies to an Advance, the rate of interest applicable to each Lender’s
portion of such Advance during the relevant Interest Period or Term shall
(subject to any agreement reached pursuant to Clause 15.3 (Alternative Rate)) be
the rate per annum which is the sum
of:
|
|
(i)
|
the
Applicable Margin;
|
|
(ii)
|
the
rate per annum notified to the Facility Agent by such Lender before the
last day of such Interest Period or Term to be that which expresses as a
percentage rate per annum the cost to such Lender of funding from whatever
sources it may reasonably select its portion of such Advance during such
Interest Period or Term; and
|
|
(iii)
|
the
Associated Costs Rate, if any, applicable to such Lender’s participation
in the relevant Advance.
|
|
15.3
|
Alternative
Rate
|
| If Clause 15.1 (Market Disruption) applies and the Facility Agent or the Company so requires, the Facility Agent and the Company shall enter into negotiations with a view to agreeing an alternative basis: |
|
|
(a)
|
for
determining the rate of interest from time to time applicable to such
Advances; and/or
|
|
(b)
|
upon
which such Advances may be maintained (whether in Sterling or some other
currency) thereafter,
|
|
and
any such alternative basis that is agreed shall take effect in accordance
with its terms and be binding on each party to this Agreement, provided
that the Facility Agent may not agree any such alternative basis without
the prior consent of each Lender holding Outstandings under each
applicable Facility, acting reasonably.
|
|
|
16.
|
|
16.1
|
Commitment
Fees
|
|
(a)
|
The
Borrowers shall pay to the Facility Agent for the account of each relevant
Lender (other than an Ancillary Facility Lender) a commitment commission
on the aggregate amount of such Lender’s Available Revolving Facility
Commitment made available by it (other than any Ancillary Facility) from
day to day during the period beginning on the Merger Closing Date and
ending on the Termination Date for the Revolving Facility, such commitment
commission to be calculated at the lower of (a) a rate of 0.75% per annum
of the aggregate undrawn portion of the Revolving Facility and (b) 50% of
the Revolving Facility Margin from the Merger Closing Date, payable in
arrears on the last day of each successive period of 3 months which ends
during such period and on the Termination Date for the Revolving
Facility.
|
|
(b)
|
The
Borrowers shall pay to the Facility Agent for the account of each relevant
Lender (other than an Ancillary Facility Lender) a commitment commission
on the aggregate amount of such Lender’s Available Secondary Revolving
Facility Commitment made available by it (other than any Ancillary
Facility) from day to day during the period beginning on the Merger
Closing Date and ending on the Termination Date for the Secondary
Revolving Facility, such commitment commission to be calculated at the
lower of (a) a rate of 0.75% per annum of the aggregate undrawn portion of
the Secondary Revolving Facility and (b) 50% of the Secondary Revolving
Facility Margin from the Merger Closing Date, payable in arrears on the
last day of each successive period of 3 months which ends during such
period and on the Termination Date for the Secondary Revolving
Facility.
|
|
16.2
|
Arrangement
and Underwriting Fee
|
|
(a)
|
The
Company shall pay to the Bookrunners the fees specified in the Senior Fees
Letter at the times and in the amounts specified in such
letter.
|
|
| (b) | The Company shall pay to the Bookrunners the fees specified in the C Facility Fees Letter at the times and in the amounts specified in such letter. | |
| (c) | The Company shall pay to any Additional Facility Lenders the fees specified in the relevant Additional Facility Accession Agreement at the times and in the amounts specified in such Additional Facility Accession Agreement. | |
|
16.3
|
Agency
Fee
|
|
The
Company shall pay to the Facility Agent and the Security Trustee for their
own account the fees specified in the letter dated on or about the
Original Execution Date from the Facility Agent to the Company at the
times and in the amounts specified in such
letter.
|
|
16.4
|
Documentary
Credit Fee
|
|
Each
Borrower shall, in respect of each Documentary Credit issued on its behalf
pay to the Facility Agent for the account of each Indemnifying Lender (for
distribution in proportion to each Indemnifying Lender’s L/C Proportion of
such Documentary Credit) a documentary credit fee in the currency in which
the relevant Documentary Credit is denominated at a rate equal to the
applicable Revolving Facility Margin or Secondary Revolving Facility
Margin applied on the Outstanding L/C Amount in relation to such
Documentary Credit. Such documentary credit fee shall be paid
in arrears on each Quarter Date during the Term of the relevant
Documentary Credit and on the relevant Expiry Date. Accrued
Documentary Credit fees shall also be payable on the cancelled amount of
any Revolving Facility Commitment or Secondary Revolving Facility
Commitment attributable to a Documentary Credit which is repaid in full at
the time such cancellation is effective, if the Revolving Facility
Commitment or Secondary Revolving Facility Commitment is cancelled in full
and a Documentary Credit is repaid in
full.
|
|
16.5
|
L/C
Bank Fee
|
| Each relevant Borrower shall pay: |
| (a) |
to
the Original L/C Bank a fronting fee in respect of each Documentary Credit
requested by it and issued by the Original L/C Bank in the amount and at
the times agreed in the letter dated on or about the Original Execution
Date between the Original L/C Bank and the Company; and
|
|
|
(b)
|
to
any other L/C Bank a fronting fee in respect of each Documentary Credit
requested by it and issued by that L/C Bank, in the amount and at the
times agreed in any letter entered into between such L/C Bank and such
Borrower.
|
|
17.
|
|
17.1
|
Tax
Gross-up
|
|
(a)
|
Each
payment made by the Parent or an Obligor under a Finance Document shall be
made by it without any Tax Deduction, unless a Tax Deduction is required
by Law. Any Tax Deduction in relation to any payment due in any
currency other than Sterling shall be calculated using the Facility
Agent’s Spot Rate of Exchange on the date such payment is made and the
Parent and the Obligors shall have no liability if any subsequent credit
or refund received by any Lender from any Tax Authority in relation
thereto is in a different amount (when converted to the non-Sterling
currency on any date).
|
|
(b)
|
As
soon as it becomes aware that the Parent or an Obligor is or will be
required by Law to make a Tax Deduction (or that there is any change in
the rate at which or the basis on which such Tax Deduction is to be made)
the Parent or the relevant Obligor shall notify the Facility Agent
accordingly. Similarly, a Lender shall notify the Facility
Agent and the Parent upon becoming so aware in respect of a payment
payable to that Lender.
|
|
(c)
|
If
a Tax Deduction is required by Law to be made by the Parent or an Obligor,
the amount of the payment due shall, unless paragraph (f) below
applies, be increased to an amount so that, after the required Tax
Deduction is made, the payee receives an amount equal to the amount it
would have received had no Tax Deduction been
required.
|
|
(d)
|
If
a Tax Deduction is required by Law to be made by the Facility Agent, the
US Paying Agent or the Security Trustee (other than by reason of the
Facility Agent or the Security Trustee performing its obligations as such
under this Agreement through an office located outside the United Kingdom
or the US Paying Agent performing its obligations as such through an
office located outside the United States) from any payment to any Finance
Party which represents an amount or amounts received from the Parent or an
Obligor, either the Parent or that Obligor, as the case may be, shall,
unless paragraph (f) below applies, pay directly to that Finance
Party an amount which, after making the required Tax Deduction enables the
payee of that amount to receive an amount equal to the payment which it
would have received if no Tax Deduction had been
required.
|
|
(e)
|
If
a Tax Deduction is required by Law to be made by the Facility Agent, the
US Paying Agent or the Security Trustee from any payment to any Finance
Party under paragraph (d) above, the Facility Agent, the US Paying
Agent or the Security Trustee as appropriate shall unless
paragraph (g) below applies, make that Tax Deduction and any payment
required in connection with that Tax Deduction to the relevant taxing
authority within the time allowed and in the minimum amount required by
Law and within 30 days of making either a Tax Deduction or any payment in
connection with that Tax Deduction, the Facility Agent, the US Paying
Agent or the Security Trustee as appropriate making that Tax Deduction or
other payment shall deliver to the relevant Borrower evidence that the Tax
Deduction or other payment has been made or accounted for to the relevant
tax authority.
|
|
(f)
|
Neither
the Parent nor any Obligor is required to make a Tax Payment to a Lender
under paragraphs (c) or (d) above for a Tax Deduction in respect of
tax imposed by the United Kingdom on a payment of interest in respect of a
participation in an Advance by that Lender to any UK Borrower where that
Lender is not a Qualifying UK Lender on the date on which the relevant
payment of interest is due (otherwise than as a consequence of a Change in
Tax Law) to the extent that payment could have been made without a Tax
Deduction if that Lender had been a Qualifying UK Lender on that
date.
|
|
(g)
|
Either
the Parent or the relevant Obligor which is required to make a Tax
Deduction shall make that Tax Deduction and any payment required in
connection with that Tax Deduction to the relevant taxing authority within
the time allowed and in the minimum amount required by
Law.
|
|
(h)
|
Within
30 days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, either the Parent or the relevant
Obligor making that Tax Deduction or other payment shall deliver to the
Facility Agent or the US Paying Agent, as appropriate, for the Finance
Party entitled to the interest to which such Tax Deduction or payment
relates, evidence that the Tax Deduction or other payment has been made or
accounted for to the relevant tax
authority.
|
|
17.2
|
Lender
Tax Status
|
|
(a)
|
Each
Lender represents and warrants to the Facility Agent and to each
Borrower:
|
|
(i)
|
in
the case of an Original Lender, that as at the Original Execution Date, it
has the tax status set out opposite its name in Part 2 of Schedule 1
(Lender Tax
Status); or
|
|
(ii)
|
in
the case of any other Lender, that as at the relevant Transfer Date (and
in the case of a C Facility Lender, the date of the C Facility Lender Deed
of Accession), it is:
|
|
|
(A)
|
a
UK Bank Lender;
|
||
| (B) | a UK Non-Bank Lender and falls within paragraph (a) or (b) of the definition thereof; | |||
| (C) | a UK Treaty Lender; or | |||
| (D) | a US Accession Lender, |
|
|
as the same shall be
expressly indicated in the relevant Transfer Deed or C Facility Lender
Deed of Accession, as
applicable.
|
|
(b)
|
Each
Lender expressed to be a “UK Non-Bank Lender” in Part 2 of Schedule 1
(Lender Tax
Status) in the Transfer Deed or in the C Facility Lender Deed of
Accession, as applicable, pursuant to which it becomes a Lender represents
and warrants to:
|
|
(i)
|
the
Facility Agent and to each UK Borrower, on the Original Execution Date, or
on the relevant Transfer Date (as the case may be) that it is within
paragraph (a) of the definition of UK Non-Bank Lender on that date
(unless, if it is not within paragraph (a), it is within
paragraph (b) of the definition of UK Non-Bank Lender on that date,
and has notified the Facility Agent of the circumstances by virtue of
which it falls within such paragraph (b) and has provided evidence of
the same to the Company if and to the extent requested to do so, by the
Facility Agent; and
|
|
(ii)
|
the
Facility Agent and to each UK Borrower, that unless it notifies the
Facility Agent and the Company to the contrary in writing prior to any
such date, its representation and warranty in paragraph (i) of this
Clause 17.2(b) is true in relation to that Lender’s participation in
each Advance made to such Borrower, on each date that such UK Borrower
makes a payment of interest in relation to such
Advance.
|
| (c) |
(i)
|
A Lender
that intends to qualify as a UK Treaty Lender and either the Parent or the
relevant Obligor that makes a payment to which that Lender is entitled
shall cooperate in completing any procedural formalities as may be
necessary for either the Parent or the relevant Obligor to obtain
authorisation to make that payment without a Tax Deduction; provided,
however, that nothing in this Clause 17.2(c)(i) shall require a
Lender to disclose any confidential information or information regarding
its business, tax affairs or tax computations (including, without
limitation, its tax returns or its
calculations).
|
|
(ii)
|
Any
Lender that is not a “United States person” (as such term is defined in
Section 7701(a)(30) of the Code) and that is entitled to payment from the
US Borrower without a Tax Deduction for United States federal withholding
taxes, shall as soon as reasonably
practicable:
|
|
|
(1)
|
to
the extent able to do so without breaching any legal or regulatory
restrictions or having to disclose any confidential information, deliver
to the US Borrower, with a copy to the Facility Agent, upon the reasonable
written request of the US Borrower, (i) two accurate and complete
originally executed US Internal Revenue Service Forms W-8BEN or W-8ECI (or
any successor), whichever is relevant, certifying such Lender’s legal
entitlement to an exemption or reduction from any Tax Deduction for US
federal withholding taxes with respect to all payments hereunder, or (ii)
in the case of each such Lender, if the Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either US
Internal Revenue Service Form W-8ECI or Form W-8BEN (certifying such
Lender’s legal entitlement to an exemption or reduction from any Tax
Deduction for US federal withholding taxes) pursuant to
sub-paragraph (i) above, (x) a statement certifying that such
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the
Code and (y) two accurate and complete originally executed copies of
US Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying such Lender’s legal
entitlement to an exemption or reduction from any Tax Deduction for US
federal withholding taxes with respect to all payments hereunder;
and
|
|
|
(2)
|
to
the extent able do so without breaching any legal or regulatory
restrictions or having to disclose any confidential information at such
times, provide to the US Borrower, with a copy to the Facility Agent) new
Forms W-8BEN or W-8ECI (or any successor), whichever is relevant, upon the
expiration or obsolescence of any previously delivered form to reconfirm
any complete exemption from, or any entitlement to a reduction in, any Tax
Deduction for US federal withholding taxes with respect to any payment
hereunder.
|
|
(iii)
|
Any
Lender that is a “United States person” (as such term is defined in
Section 7701(a)(30) of the Code) and that is entitled to payment from the
US Borrower, other than a Lender that has a name that indicates that it is
an “exempt recipient” (as such term is defined in Section
1.6049-4(c)(1)(ii) of the United States Treasury Regulations), shall as
soon as reasonably
practicable:
|
|
|
(1)
|
to
the extent able to do so without breaching any legal or regulatory
restrictions or having to disclose any confidential information, deliver
to the US Borrower, with a copy to the Facility Agent, upon the reasonable
written request of the US Borrower, (i) two accurate and complete
originally executed US Internal Revenue Service Forms W-9 (or any
successor); and
|
|
|
(2)
|
to
the extent able do so without breaching any legal or regulatory
restrictions or having to disclose any confidential information at such
times, provide to the US Borrower, with a copy to the Facility Agent, new
Forms W-9 (or any successor), whichever is relevant, upon the expiration
or obsolescence of any previously delivered
form.
|
|
(d)
|
(i)
|
If,
in relation to any interest payment to a Lender on an Advance made to a UK
Borrower:
|
|||
|
(A)
|
that
Lender has confirmed to the relevant UK Borrower and to the Facility Agent
before that interest payment would otherwise fall due
that:
|
||||
|
(1)
|
it
has completed the necessary procedural formalities referred to in
paragraph (c)(i) of this Clause 17.2; and
|
||||
|
(2)
|
H.M.
Revenue and Customs has not declined to issue the authorisation referred
to in the definition of “UK Treaty Lender” (the “Authorisation”) to that
Lender in relation to that Advance, or if the Inland Revenue has declined,
the Lender is disputing that decision in good faith;
and
|
||||
|
(B)
|
the
relevant UK Borrower has not received the
Authorisation,
|
||||
|
then,
such Lender may elect, by not less than 5 Business Days’ prior
confirmation in writing to the Facility Agent, that such interest payment
(the “relevant Interest
Payment”) shall not be due and payable under Clause 13.1
(Interest Payment Date
for Revolving Facility and Secondary Revolving Facility Advances)
or Clause 14.5 (Payment of Interest for Term
Facility Advances) (as applicable) until the date (the “Confirmation Date”)
which is 5 Business Days after the earlier
of:
|
|||||
|
(x)
|
the
date on which the Authorisation is received by the relevant UK
Borrower;
|
|||
|
(y)
|
the
date that Lender confirms to the relevant UK Borrower and the Facility
Agent that it is not entitled to claim full relief from liability to
taxation otherwise imposed by the United Kingdom (in relation to that
Lender’s participation in Advances made to that UK Borrower) on interest
under a Double Taxation Treaty in relation to the relevant Interest
Payment; and
|
|||
|
(z)
|
the
earlier of (A) the date which is 6 months after the date on which the
relevant Interest Payment had otherwise been due and payable and (B) the
date of final repayment (whether scheduled, voluntary or mandatory) of
principal in respect of the relevant Interest Payment.
|
|||
|
(ii)
|
For
the avoidance of doubt, in the event that sub-paragraph (i) of this
paragraph (d) applies the Interest Period or Term to which the
relevant Interest Payment relates shall not be extended and the start of
the immediately succeeding Interest Period or Term shall not be
delayed.
|
|
(e)
|
Any
Lender which was a Qualifying UK Lender when it became party to this
Agreement but subsequently ceases to be a Qualifying UK Lender (other than
by reason of a Change in Tax Law in the United Kingdom) shall promptly
notify the UK Borrowers of that event, provided that if there is a Change
in Tax Law in the United Kingdom which in the reasonable opinion of such
UK Borrowers may result in any Lender which was a Qualifying UK Lender
when it became a party to this Agreement ceasing to be a Qualifying UK
Lender, such Qualifying UK Lender shall co-operate with such UK Borrowers
and provide reasonable evidence requested by such UK Borrowers in order
for such UK Borrowers to determine whether such Lender has ceased to be a
Qualifying UK Lender provided, however, that nothing in this Clause
17.2(e) shall require a Lender to disclose any confidential information or
information regarding its business, tax affairs or tax computations
(including without limitation, its tax returns or its
calculations).
|
|
|
(f)
|
For
the purposes of paragraphs (a) to (e) above, each Lender shall
promptly deliver such documents evidencing its corporate and tax status as
the Facility Agent or the Company may reasonably request, provided that in
the event that any Lender fails to comply with the foregoing requirement,
any Borrower shall be
permitted:
|
|
(i)
|
in
respect of any Lender that has become a Lender prior to the achievement of
Successful Syndication, to withhold and retain an amount in respect of the
applicable withholding tax estimated in good faith by such Borrower to be
required to be withheld in respect of interest payable to such Lender;
or
|
||
|
(ii)
|
in
respect of any Lender that intends to become a Lender after the
achievement of Successful Syndication, subject to the provisions of
paragraph (a) of Clause 36.3 (Assignments and
Transfers), to refuse to grant its consent to such
transfer.
|
|
(g)
|
In
the event that either the Facility Agent or the Company has reason to
believe that any representation given by a Lender in accordance with
Clause 17.2 (Lender
Tax Status) is incorrect or inaccurate, the Facility Agent or the
Company (as the case may be) shall promptly inform the other party and the
relevant Lender, and may thereafter request such documents relating to the
corporate and tax status of such Lender as the Facility Agent or the
Company may reasonably require for the purposes of determining whether or
not such representation was indeed incorrect.
|
|
|
(h)
|
If,
following delivery of such documentation and following consultation
between the Facility Agent, the Company and the relevant Lender, the
Company concludes (acting reasonably and in good faith) that there is
insufficient evidence to determine the relevant tax status of such Lender,
the relevant Borrower shall be permitted in respect of such Lender, to
withhold and retain an amount in respect of the applicable withholding tax
estimated in good faith by such Borrower to be required to be withheld in
respect of interest payable to such Lender until such time as that Lender
has delivered sufficient evidence of its tax status to the Facility Agent
and the Company.
|
|
17.3
|
Tax
Indemnity
|
||||||||
|
(a)
|
Subject
to paragraph (b) of this Clause, the Company shall (within 5 Business
Days of demand by the Facility Agent) pay (or procure that either the
Parent or the relevant Obligor pays) for the account of a Protected Party
an amount equal to any Tax Liability which that Protected Party reasonably
determines has been or will be suffered by that Protected Party (directly
or indirectly) in connection with any Finance Document.
|
|
|
(b)
|
Paragraph
(a) of this Clause shall not
apply:
|
|
(i)
|
with
respect to any Tax Liability of a Protected Party in respect of Tax on
Overall Net Income of that Protected Party;
|
||
|
(ii)
|
to
the extent that any Tax Liability has been compensated for by an increased
payment or other payment under paragraphs (c) or (d) of
Clause 17.1 (Tax
Gross-up) or would have been compensated for by such an increased
payment or other payment, but for the application of paragraph (f) of
Clause 17.1 (Tax
Gross-up); or
|
||
|
(iii)
|
until
the Merger Closing Date has
occurred.
|
|
(c)
|
A
Protected Party making, or intending to make, a claim pursuant to
paragraph (a) of this Clause 17.3 shall promptly notify the
Facility Agent of the event which will give, or has given, rise to the
claim together with supporting evidence, following which the Facility
Agent shall notify the Company and provide such evidence to
it.
|
|
|
(d)
|
A
Protected Party shall, on receiving a payment from either the Parent or an
Obligor under this Clause 17.3, notify the Facility
Agent.
|
|
|
(e)
|
In
this Clause 17.3:
|
|
|
“Tax Liability” means, in
respect of any Protected
Party:
|
|
(i)
|
any
liability or any increase in the liability of that person to make any
payment of or in respect of tax;
|
||
|
(ii)
|
any
loss of any relief, allowance, deduction or credit in respect of tax which
would otherwise have been available to that person;
|
||
|
(iii)
|
any
setting off against income, profits or gains or against any tax liability
of any relief, allowance, deduction or credit in respect of tax which
would otherwise have been available to that person; and
|
||
|
(iv)
|
any
loss or setting off against any tax liability of a right to repayment of
tax which would otherwise have been available to that
person.
|
|
For
this purpose, any question of whether or not any relief, allowance,
deduction, credit or right to repayment of tax has been lost or set off in
relation to any person, and if so, the date on which that loss or set-off
took place, shall be conclusively determined by that person, acting
reasonably and in good faith and such determination shall be binding on
the relevant parties to this
Agreement.
|
|
“Tax on Overall Net
Income” means, in relation to a Protected Party, tax (other than
tax deducted or withheld from any payment) imposed on the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Protected Party by the jurisdiction in which the
relevant Finance Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which the Finance Party is treated as residing for
tax purposes or in which the relevant Finance Party’s Facility Office or
head office is situated.
|
|
(f)
|
A
Protected Party making or intending to make a claim under
paragraph (a) above shall promptly notify the Facility Agent of the
event which will give, or has given, rise to the claim together with
supporting evidence, following which the Facility Agent shall notify the
Company and provide such evidence to it.
|
|
|
(g)
|
A
Protected Party shall, on receiving a payment from an Obligor under this
Clause 17.3, notify the Facility
Agent.
|
|
17.4
|
Tax
Credit
|
||||||||
|
(a)
|
If
either the Parent or an Obligor makes a Tax Payment and the relevant
Finance Party determines, in its sole opinion,
that:
|
|
(i)
|
a
Tax Credit is attributable to that Tax Payment; and
|
||
|
(ii)
|
that
Finance Party has obtained, utilised and retained that Tax
Credit,
|
||
|
the
Finance Party shall (subject to paragraph (b) below and to the extent
that such Finance Party can do so without prejudicing the availability
and/or the amount of the Tax Credit and the right of that Finance Party to
obtain any other benefit, relief or allowance which may be available to
it) pay to either the Parent or the relevant Obligor such amount which
that Finance Party determines, in its sole opinion, will leave it (after
that payment) in the same after-tax position as it would have been in had
the Tax Payment not been required to be made by the Parent or the relevant
Obligor.
|
|||
|
(b)
|
(i)
|
Each
Finance Party shall have an absolute discretion as to the time at which
and the order and manner in which it realises or utilises any Tax Credits
and shall not be obliged to arrange its business or its tax affairs in any
particular way in order to be eligible for any credit or refund or similar
benefit.
|
|
|
(ii)
|
No
Finance Party shall be obliged to disclose to any other person any
information regarding its business, tax affairs or tax computations
(including, without limitation, its tax returns or its
calculations).
|
||
|
(iii)
|
If
a Finance Party has made a payment to the Parent or an Obligor pursuant to
this Clause 17.4 on account of a Tax Credit and it subsequently
transpires that that Finance Party did not receive that Tax Credit, or
received a reduced Tax Credit, either the Parent or such Obligor, as the
case may be, shall, on demand, pay to that Finance Party the amount which
that Finance Party determines, acting reasonably and in good faith, will
put it (after that payment is received) in the same after-tax position as
it would have been in had no such payment or a reduced payment been made
to the Parent or such Obligor.
|
||
|
(c)
|
No
Finance Party shall be obliged to make any payment under this
Clause 17.4 if, by doing so, it would contravene the terms of any
applicable Law or any notice, direction or requirement of any governmental
or regulatory authority (whether or not having the force of
law).
|
||
|
18.
|
|
|
18.1
|
Increased
Costs
|
|
Subject
to Clause 18.3 (Exceptions), each
Borrower shall, within 3 Business Days of a demand by the Facility Agent,
pay for the account of a Finance Party the amount of any Increased Cost
incurred by that Finance Party or any of its Affiliates as a result
(direct or indirect)
of:
|
|
(a)
|
the
introduction or implementation of or any change in (or any change in the
interpretation, administration or application of) any Law, regulation,
practice or concession or any directive, requirement, request or guideline
(whether or not having the force of law but where such law, regulation,
practice, concession, directive, requirement, request or guideline does
not have the force of law, it is one with which banks or financial
institutions subject to the same are generally accustomed to comply) of
any central bank, including the European Central Bank, the Financial
Services Authority or any other fiscal, monetary, regulatory or other
authority after the Original Execution Date;
|
|
|
(b)
|
compliance
with any Law, regulation, practice, concession or any such directive,
requirement, request or guideline made after the Original Execution Date;
or
|
|
|
(c)
|
the
implementation of economic or monetary union by any Member State which is
not already a Participating Member
State.
|
|
18.2
|
Increased
Costs Claims
|
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 18.1
(Increased Costs)
shall notify the Facility Agent of the event giving rise to the claim,
following which the Facility Agent shall promptly notify the relevant
Borrower.
|
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the Facility
Agent, provide a certificate confirming the amount of its or if
applicable, its Affiliate’s Increased Costs setting out in reasonable
detail its calculations in relation to such Increased
Costs.
|
|
|
18.3
|
Exceptions
|
||
|
Clause 18.1
(Increased Costs)
does not apply to the extent any Increased Cost which
is:
|
|||
|
(a)
|
attributable
to a Tax Deduction required by Law to be made by the Parent or an Obligor,
as the case may be;
|
|
|
(b)
|
compensated
for by Clause 17.3 (Tax Indemnity) (or
would have been compensated for by Clause 17.3 but was not so
compensated solely because paragraph (b) of Clause 17.3
applied);
|
|
|
(c)
|
compensated
for by the payment of the Associated Costs Rate;
|
|
|
(d)
|
attributable
to the gross negligence of, or wilful breach by, the relevant Finance
Party or if applicable, any of its Affiliates of any law, regulation,
practice, concession, directive, requirement, request or guideline, to
which the imposition of such Increased Cost relates;
|
|
|
(e)
|
attributable
to a delay of more than 30 days in the relevant Finance Party notifying
the Facility Agent of any claim pursuant to paragraph (a) of
Clause 18.2 (Increased Costs Claims)
after such Finance Party has become aware that it had suffered the
relevant Increased Cost; or
|
|
|
(f)
|
attributable
to the implementation of or compliance with the “International Convergence
of Capital Measurement and Capital Standards, a Revised Framework”
published by the Basel Committee on Banking Supervision in June 2004 in
the form existing on the Original Execution Date (“Basel II”) or any other
law or regulation which implements Basel II (whether such implementation,
application or compliance is by a government, regulator, Finance Party or
any of its
Affiliates).
|
|
19.
|
|
|
If
it becomes unlawful in any relevant jurisdiction for a Lender to perform
any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Advance or to issue a Documentary Credit
or provide a guarantee in relation to it as envisaged hereby/or in any
Ancillary Facility:
|
|
(a)
|
that
Lender shall promptly notify the Facility Agent upon becoming aware of
that event;
|
|
|
(b)
|
upon
the Facility Agent notifying the relevant Borrower, the Available
Commitments of that Lender will immediately be cancelled and its
Commitments reduced to zero and such Lender shall not thereafter be
obliged to participate in any Advance or issue or guarantee any
Documentary Credit/or make available any Ancillary Facility;
and
|
|
|
(c)
|
if
so required by the Facility Agent on behalf of the relevant Lender, the
relevant Borrower shall repay or procure the repayment of that Lender’s
participation in the Advances made to it on the last day of the current
Interest Period or Term for each Advance occurring after the Facility
Agent has notified such Borrower or, if earlier, the date specified by the
Lender in the notice delivered to the Facility Agent (being no earlier
than the last day of any applicable grace period permitted by Law) and, if
applicable, shall promptly reduce that Lender’s L/C Proportion of the
Outstanding L/C Amount in respect of any outstanding Documentary Credit
issued by it to zero and, if applicable, shall promptly reduce the
Ancillary Facility Outstandings in respect of that Lender to zero,
together with accrued interest and all other amounts owing to that Lender
under the Finance
Documents.
|
|
20.
|
|
|
20.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall in consultation with the relevant Borrower, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under, or pursuant to, or cancelled
pursuant to, any of Clause 17 (Taxes), Clause 18
(Increased Costs)
or Clause 19 (Illegality) including
(but not limited to) transferring its rights and obligations under the
Finance Documents to another Affiliate or Facility Office or financial
institution acceptable to such Borrower which is willing to participate in
any Facility in which such Lender has participated.
|
|
|
(b)
|
Paragraph
(a) of this Clause does not in any way limit the obligations of the Parent
or any Obligor under the Finance
Documents.
|
|
20.2
|
Limitation
of Liability
|
|
|
(a)
|
With
effect from the Merger Closing Date, each of the Borrowers agrees to
indemnify each Finance Party for all costs and expenses reasonably
incurred by that Finance Party as a result of steps taken by it under
Clause 20.1 (Mitigation).
|
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 20.1 if,
in the opinion of that Finance Party (acting reasonably), to do so might
in any way be prejudicial to
it.
|
|
|
21.
|
|
|
21.1
|
Time
for making Representations and
Warranties
|
|
(a)
|
Each
Obligor in relation to itself and, to the extent expressed to be
applicable to them, its Subsidiaries, makes each of the following
representations and warranties to each Finance Party on the Original
Execution Date other than in the case of the representations given under
Clause 21.16 (Accuracy of
Information) which shall be given as of the applicable dates
specified in that Clause.
|
|
|
(b)
|
The
Ultimate Parent in relation to itself makes each of the representations
and warranties set out in Clauses 21.2 (Due Organisation), 21.5
(No Immunity),
21.6 (Governing Law and
Judgments), 21.7 (All Actions Taken),
21.8 (No Filing or Stamp
Taxes), 21.9 (Binding Obligations),
21.10 (No
Winding-up), 21.13 (Original Financial
Statements) (as to the Original Financial Statements provided by
it), 21.14 (No Material
Adverse Change), 21.15(No Undisclosed
Liabilities), 21.18 (Execution of Finance
Documents), paragraph (d) of Clause 21.19 (Structure), 21.21
(Necessary
Authorisations), 21.27 (Investment Company
Act), 21.28 (Margin Stock), 21.31
(Merger
Documents), 21.34 (US Patriot Act) and
21.36 (Compliance with
ERISA) to each Finance Party on the Original Execution
Date. Any Holding Company of the Ultimate Parent who accedes to
this Agreement pursuant to Clause 26.3 (Acceding Holding
Company) makes each of the Repeating Representations, to the extent
they are listed in the foregoing sentence, with respect to itself on the
date on which it accedes to this Agreement.
|
|
|
(c)
|
The
Parent in relation to itself makes each of the representations and
warranties set out in Clauses 21.2 (Due Organisation), 21.3
(No Deduction),
21.4 (Claims Pari
Passu), 21.5 (No
Immunity), 21.6 (Governing Law and
Judgments), 21.7 (All Actions Taken),
21.8 (No Filing or Stamp
Taxes), 21.9 (Binding Obligations),
21.10 (No
Winding-up), paragraph (c) of Clause 21.17 (Indebtedness and
Encumbrances), 21.18 (Execution of Finance
Documents), paragraphs (c) of Clause 21.19 (Structure), 21.21
(Necessary
Authorisations), 21.26 (Security) and 21.30
(Centre of Main
Interests), to each Finance Party on the Original Execution
Date.
|
|
21.2
|
Due
Organisation
|
|
It
is a company duly organised or a partnership duly formed, in either case,
validly existing under the laws of its jurisdiction of incorporation or
establishment with power to enter into those of the Finance Documents to
which it is party and to exercise its rights and perform its obligations
thereunder and all corporate and (subject to paragraphs (d) and (e)
of the definition of Reservations) other action required to authorise its
execution of those of the Finance Documents to which it is party and its
performance of its obligations have been duly
taken.
|
|
21.3
|
No
Deduction
|
|
Under
the laws of its Relevant Tax Jurisdiction in force as at the Original
Execution Date, it will not be required to make any deduction for or
withholding on account of tax from any payment it may make under any of
the Finance Documents to any Lender which is (a) a Qualifying UK Lender
(in the case of any Borrower) or (b) a US Accession Lender (in the case of
the US Borrower).
|
|
21.4
|
Claims
Pari Passu
|
|
Subject
to the Reservations, under the laws of its jurisdiction of incorporation
or establishment, and, if different, England, in force at the Original
Execution Date, the claims of the Finance Parties against it under the
Finance Documents to which it is party rank and will rank at least pari passu with the
claims of all its unsecured and unsubordinated creditors save those whose
claims are preferred by any bankruptcy, insolvency, liquidation or similar
laws of general
application.
|
|
21.5
|
No
Immunity
|
|
In
any legal proceedings taken in its jurisdiction of incorporation or
establishment and, if different, England in relation to any of the Finance
Documents to which it is party it will not be entitled to claim for itself
or any of its assets immunity from suit, execution, attachment or other
legal process.
|
|
21.6
|
Governing
Law and Judgments
|
|
Subject
to the Reservations, in any legal proceedings taken in its jurisdiction of
incorporation or establishment in relation to any of the Finance Documents
to which it is party, the choice of law expressed in such documents to be
the governing law of it and any judgment obtained in such jurisdiction
will be recognised and
enforced.
|
|
21.7
|
All
Actions Taken
|
|
All
acts, conditions and things required to be done, fulfilled and performed
in order:
|
|
(a)
|
to
enable it lawfully to enter into, exercise its rights under and perform
and comply with all material obligations expressed to be assumed by it in
the Finance Documents to which it is party;
|
|
|
(b)
|
subject
to the Reservations, to ensure that all material obligations expressed to
be assumed by it in the Finance Documents to which it is party are legal,
valid and binding; and
|
|
|
(c)
|
subject
to the Reservations, to make the Finance Documents to which it is party
admissible in evidence in its jurisdiction of incorporation or
establishment and, if different, the United Kingdom,
|
|
|
have
been done, fulfilled and
performed.
|
||
|
21.8
|
No
Filing or Stamp Taxes
|
|
Under
the laws of its Relevant Tax Jurisdiction and, if different, the United
Kingdom, in force as at the Original Execution Date, it is not necessary
that any of the Finance Documents to which it is party be filed, recorded
or enrolled with any court or other authority in such jurisdiction or that
any stamp, registration or similar tax be paid on or in relation to any of
them other than those filings which are necessary to perfect the Security
and save as stated in the Reservations.
|
|
|
21.9
|
Binding
Obligations
|
|
Subject
to the Reservations, the obligations expressed to be assumed by it in the
Finance Documents to which it is party, are legal, valid and binding and
enforceable against it in accordance with the terms thereof and no limit
on its powers will be exceeded as a result of the borrowings, grant of
security or giving of guarantees contemplated by such Finance Documents or
the performance by it of any of its obligations
thereunder.
|
|
21.10
|
No
Winding-up
|
|
|
(a)
|
None
of the Ultimate Parent, the Parent, the Company or any other
Obligor that is a Material Subsidiary is taking any corporate action nor
are any other steps being taken (including the commencement of any legal
proceedings) against the Ultimate Parent, the Parent, the Company or any
other Obligor that is a Material Subsidiary, for its winding-up,
dissolution or administration or for the appointment of a receiver,
administrator, administrative receiver, conservator, custodian, trustee or
similar officer of it or of any or all of its assets or revenues save as
permitted under paragraphs (c), (d) or (e) of Clause 25.8 (Mergers),
Clause 25.20 (Solvent Liquidation) or
as otherwise disclosed to the Facility Agent prior to the Original
Execution Date.
|
|
|
(b)
|
Each
US Obligor is
Solvent.
|
|
|
21.11
|
No
Event of Default
|
|
No
Event of Default is continuing or might reasonably be expected to result
from the making of any Advance.
|
|
|
21.12
|
No
Material Proceedings
|
|
No
litigation, arbitration or administrative proceeding of or before any
court, arbitral body, or agency in which there is a reasonable possibility
of an adverse decision which could reasonably be expected to have a
Material Adverse Effect has been started or, to the best of its knowledge,
is threatened in writing or, is pending against it or any member of the
Bank Group other than litigation, arbitration or administrative
proceedings commenced prior to the Original Execution Date, details of
which have been disclosed to the Lenders prior to the Original Execution
Date.
|
|
|
21.13
|
Original
Financial Statements
|
|
Its
Original Financial Statements were prepared in accordance with GAAP which
has been consistently applied (unless and to the extent expressly
disclosed to the Facility Agent in writing to the contrary before the
Original Execution Date) and fairly present in all material respects the
consolidated financial position of the group of companies to which they
relate at the date as of which they were prepared and/or (as appropriate)
the results of operations and changes in financial position during the
period for which they were prepared.
|
|
|
21.14
|
No
Material Adverse Change
|
|
Since
publication of its Original Financial Statements, no event or series of
events has occurred, in each case which has had or could reasonably be
expected to have a Material Adverse Effect.
|
|
|
21.15
|
No
Undisclosed Liabilities
|
|
As
at 31 December 2005, neither the Ultimate Parent nor any of its
Subsidiaries had any material liabilities (contingent or otherwise) which
were not disclosed in the Original Financial Statements (or by the notes
thereto) or reserved against therein and the Group had no material
unrealised or anticipated losses arising from commitments entered into by
it which were not so disclosed or reserved against, in each case, to the
extent required to be disclosed by GAAP.
|
|
|
21.16
|
Accuracy
of Information
|
|
In
the case of the Company
only:
|
|
(a)
|
to
the best of its knowledge and belief having made all reasonable and proper
enquiries, all statements of fact relating to the business, assets,
financial condition and operations of the Group contained
in:
|
|
(i)
|
the
Initial Information Memorandum are true, complete and accurate in all
material respects as at the Original Execution Date;
and
|
||
|
(ii)
|
the
Subsequent Information Memorandum are true, complete and accurate in all
material respects as at the date it is
issued.
|
|
(b)
|
the
opinions and views expressed in the Information Memoranda and the Agreed
Business Plan represent the honestly held opinions and views of the
Company and were arrived at after careful consideration and were based on
reasonable grounds as at the dates on which they were
prepared;
|
||
|
(c)
|
all
financial projections and forecasts made by any member of the Bank Group
in the Information Memoranda and the Agreed Business Plan have been
prepared in good faith and are based upon reasonable assumptions (it being
understood that such financial projections are subject to significant
uncertainties, many of which are beyond the control of the Company and/or
TCN and that no assurance can be given that such projections will be
realised); and
|
||
|
(d)
|
(other
than in respect of the financial projections and forecasts referred to in
paragraph (c) above), the Information Memoranda did not omit to
disclose or take into account any matter known to the Company after due
and careful enquiry where failure to disclose or take into account such
matter would result in:
|
||
|
(i)
|
the
Initial Information Memorandum being misleading in any material respect as
at the Original Execution Date; and
|
||
|
(ii)
|
the
Subsequent Information Memorandum being misleading in any material respect
as at the date it is
issued.
|
||
|
21.17
|
Indebtedness
and Encumbrances
|
|
(a)
|
Save
as permitted under this Agreement, neither it nor any member of the Bank
Group has incurred any Financial Indebtedness which is
outstanding.
|
|
|
(b)
|
Save
as permitted under this Agreement, no Encumbrance exists over all or any
of the present or future revenues or assets of any member of the Bank
Group.
|
|
|
(c)
|
In
relation to the Parent only, save as provided in the Security Documents no
Encumbrance exists over any of its rights, title or interest in the shares
of the Company or the Parent Intercompany Debt owed to it by the
Company.
|
|
21.18
|
Execution
of Finance Documents
|
|
Its
execution of the Finance Documents to which it is party and the exercise
of its rights and performance of its obligations thereunder do not and
will not:
|
|
(a)
|
conflict
with any agreement, mortgage, bond or other instrument or treaty to which
it is a party or which is binding upon it or any of its assets (save as
contemplated by paragraphs (d) and (e) of the definition of
Reservations) in a manner that could reasonably be expected to have a
Material Adverse Effect;
|
|
|
(b)
|
conflict
with any matter contained in its constitutional documents;
or
|
|
|
(c)
|
conflict
with any applicable
law.
|
|
21.19
|
Structure
|
|
|
(a)
|
The
Group Structure Chart is a complete and accurate representation of the
structure of the NTL Group and the Telewest Group, in each case, in all
material respects prior to the Merger Closing Date.
|
|
|
(b)
|
The
Company is a wholly owned Subsidiary of the Parent.
|
|
|
(c)
|
In
the case of the Parent, it does not carry on any business or conduct any
activities (other than in respect of the Existing High Yield Offering, and
any on lending of the proceeds thereof).
|
|
|
(d)
|
Upon
consummation of the Merger, NTL shall be a direct wholly-owned
subsidiary of the Ultimate
Parent.
|
|
|
21.20
|
Environmental
Matters
|
|
|
(a)
|
It
has to the best of its knowledge and
belief:
|
|
|
(i)
|
complied
with all Environmental Laws to which it is subject;
|
||
|
(ii)
|
obtained
all Environmental Licences required in connection with its business;
and
|
||
|
(iii)
|
complied
with the terms of all such Environmental Licences,
|
||
|
in
each case where failure to do so could reasonably be expected to have a
Material Adverse
Effect.
|
|||
|
(b)
|
To
the best of its knowledge and belief, there is no Environmental Claim
pending or threatened against it, which could reasonably be expected to
have a Material Adverse Effect.
|
||
|
(c)
|
No:
|
||
|
(i)
|
property
currently or previously owned, leased, occupied or controlled by it is
contaminated with any Hazardous Substance; and
|
||
|
(ii)
|
discharge,
release, leaking, migration or escape of any Hazardous Substance into the
Environment has occurred or is occurring on, under or from that
property,
|
||
|
in
each case in circumstances where the same could reasonably be expected to
have a Material Adverse
Effect.
|
|||
|
21.21
|
Necessary
Authorisations
|
|
(a)
|
The
Necessary Authorisations required by it are in full force and
effect;
|
|
|
(b)
|
it
is in compliance with the material provisions of each Necessary
Authorisation relating to it; and
|
|
|
(c)
|
to
the best of its knowledge, none of the Necessary Authorisations relating
to it are the subject of any pending or threatened proceedings or
revocation;
|
|
|
in
each case, except where any failure to maintain such Necessary
Authorisations in full force and effect, any non-compliance or any
proceedings or revocation could not reasonably be expected to have a
Material Adverse Effect and subject to the
Reservations.
|
||
|
21.22
|
Intellectual
Property
|
|
The
Intellectual Property Rights owned by or licensed to it are all the
material Intellectual Property Rights required by it in order to carry
out, maintain and operate its business, properties and assets, and so far
as it is aware, it does not infringe, in any way any Intellectual Property
Rights of any third party save, in each case, where the failure to own or
license the relevant Intellectual Property Rights or any infringement
thereof could not reasonably be expected to have a Material Adverse
Effect.
|
|
21.23
|
Ownership
of Assets
|
|
Save
to the extent disposed of in a manner permitted by the terms of any of the
Finance Documents with effect from and after the Merger Closing Date, it
has good title to or valid leases or licences of or is otherwise entitled
to use all material assets necessary to conduct its business taken as a
whole in a manner consistent with the Agreed Business Plan except to the
extent that the failure to have such title, leases or licences or to be so
entitled could not be reasonably expected to have a Material Adverse
Effect.
|
|
21.24
|
Payment
of Taxes
|
|
It
has no claims or liabilities which are being, or are reasonably likely to
be, asserted against it with respect to taxes which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect
save to the extent it (or any member of the Group) having set aside proper
reserves for such claims or liabilities, can demonstrate that the same are
being contested in good faith on the basis of appropriate professional
advice. All reports and returns on which taxes are required to
be shown have been filed within any applicable time limits and all
material taxes required to be paid have been paid within any applicable
time period other than to the extent that a failure to do so could not be
reasonably likely to have a Material Adverse
Effect.
|
|
21.25
|
Pension
Plans
|
|
(a)
|
Each
UK defined benefit pension plan operated by it generally for the benefit
of the employees of any member of the Bank Group has been valued by an
actuary appointed by the trustees of such plan in all material respects in
accordance with all laws applicable to it and using actuarial assumptions
and recommendations complying with statutory requirements or approved by
the actuary and since the most recent valuation the relevant employers
have paid contributions to the plan in accordance with the schedule of
contributions in force from time to time in relation to the plan, in the
case of each of the foregoing, save to the extent that any failure to do
so could not reasonably be expected to have a Material Adverse
Effect.
|
|
|
(b)
|
In
relation to the US schemes or arrangements, it is in compliance in all
material respects with all applicable laws relating to any defined benefit
pension plan operated by it or in which it participates, save to the
extent that any failure to comply could not reasonably be expected to have
a Material Adverse Effect.
|
|
|
(c)
|
Neither
it nor any ERISA Affiliate has, at any time, maintained or contributed to,
and is not obliged to maintain or contribute to, any Plan that is subject
to Title IV or Section 302 of ERISA and/or Section 412 of the Code or any
Multi-employer
Plan.
|
|
21.26
|
Security
|
|
Subject
to the Reservations, it is the legal or beneficial owner of all assets and
other property which it purports to charge, mortgage, pledge, assign or
otherwise secure pursuant to each Security Document and (subject to their
registration or filing at appropriate registries for the purposes of
perfecting the Security created thereunder and the Reservations) those
Security Documents to which it is a party create and give rise to valid
and effective Security having the ranking expressed in those Security
Documents.
|
|
|
21.27
|
Investment
Company Act
|
|
Neither
it nor any of its Subsidiaries is an “investment company,” or a company
“controlled” by an “investment company,” as such terms are defined in the
US Investment Company Act of 1940, as amended. Neither the
making of any Drawing, nor the application of the proceeds or repayment
thereof by any Obligor, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any rule,
regulation or order of the SEC promulgated thereunder.
|
|
|
21.28
|
Margin
Stock
|
|
In
the case of the Ultimate Parent only, no Advance (or the proceeds thereof)
will be used to purchase or carry any Margin Stock or to extend credit for
the purpose of purchasing or carrying any Margin Stock. Neither
the making of any Advance nor the use of the proceeds thereof nor the
occurrence of any other Utilisation will violate or be inconsistent with
the provisions of Regulation T, Regulation U or Regulation
X.
|
|
|
21.29
|
Insurance
|
|
Each
member of the Bank Group is adequately insured for the purposes of its
business with reputable underwriters or insurance companies against such
risks and to such extent as is necessary or usual for prudent companies
carrying on such a business (other than insurance in respect of the
underground portion of the cable network and various pavement-based
electronics associated with the cable network as disclosed in the Group’s
public disclosure documents) and except to the extent that the failure to
so insure could not reasonably be expected to have a Material Adverse
Effect.
|
|
|
21.30
|
Centre
of Main Interests
|
|
Its
Centre of Main Interests is the place in which its registered office is
situated or, if different, another place in the country in which its
registered office is situated, or England.
|
|
|
21.31
|
Merger
Documents
|
|
The
Merger Documents contain all the material terms and conditions of the
Merger and are in full force and effect and there have been no amendments,
variations or waivers to the Merger Documents (in whole or in part) other
than amendments thereto or waivers thereunder (excluding any waiver of or
as contemplated by Section 9.02(a) of the Merger Agreement) which are not
material and adverse to the financing under this Agreement, the
Alternative Bridge Facility Agreement or the Bridge Facility
Agreement.
|
|
|
21.32
|
Broadcasting
Act 1990
|
|
Neither
it nor any member of any Joint Venture Group is a “disqualified person”
for the purposes of schedule 2 to such Act.
|
|
|
21.33
|
Telecommunications,
Cable and Broadcasting Laws
|
|
(a)
|
To
the best of its knowledge and belief, it and each member of each Joint
Venture Group is in compliance in all material respects with all
Telecommunications, Cable and Broadcasting Laws (but excluding, for these
purposes only, breaches of Telecommunications, Cable and Broadcasting Laws
which have been expressly waived by the relevant regulatory authority), in
each case, where failure to do so could reasonably be expected to have a
Material Adverse Effect.
|
||
|
(b)
|
To
the best of its knowledge and belief, it and each member of each Joint
Venture Group is in compliance in all material respects with any
conditions set by the Director General of Telecommunications or by OFCOM
under section 45 of the Communications Xxx 0000 as are applicable to it or
such member of the Joint Venture Group (as the case may be), in each case,
where failure to do so could reasonably be expected to have a Material
Adverse Effect.
|
||
|
21.34
|
US
Patriot Act
|
||
|
(a)
|
It
has no reason to believe that it or any of its
Affiliates:
|
||
|
(i)
|
is
a Restricted Party or controlled by a Restricted Party or has received
funds or property from a Restricted Party; or
|
||
|
(ii)
|
has
violated any Anti-Terrorism Law or is the subject of any action or
investigation (including any relating to asset seizure, forfeiture or
confiscation) under any Anti-Terrorism Law.
|
||
|
(b)
|
It
and its Affiliates have taken reasonable measures to ensure compliance
with the Anti-Terrorism
Laws.
|
||
|
21.35
|
Liabilities
of the US Borrower
|
|
|
In
the case of the US Borrower only, it is a wholly owned Subsidiary of NTL
Victoria Limited and:
|
||
|
(a)
|
has
not traded or undertaken any commercial activities of any kind (other than
by entering into the Finance Documents to which it is party and the
Notes);
|
|
|
(b)
|
does
not have any assets other than its rights under and any payments received
pursuant to the Notes; and
|
|
|
(c)
|
does
not have any material liabilities or obligations (actual or contingent) to
any person other than as contemplated by the terms of the Finance
Documents.
|
|
|
21.36
|
Compliance
with ERISA
|
|
|
(a)
|
Each
Plan (and each related trust, insurance contract or fund) is in compliance
with its terms and with all applicable laws, including without limitation
ERISA and the Code, save where the failure to be so compliant could not
reasonably be expected to result in a Material Adverse
Effect.
|
|
|
(b)
|
Each
Plan (and each related trust, if any) which is intended to be qualified
under Section 401(a) of the Code has received a determination letter from
the Internal Revenue Service to the effect that it meets the requirements
of Sections 401(a) and 501(a) of the Code.
|
|
|
(c)
|
Neither
it nor any member of the Group nor any ERISA Affiliate has ever maintained
or contributed to (or had any obligation to contribute to) any
Multiemployer Plan or Plan that is subject to Title IV or Section 302 of
ERISA and/or Section 412 of the Code.
|
|
|
(d)
|
All
contributions required to be made with respect to a Plan have been made
within the time limit therefor, save where the failure to do so would not
result in a material liability.
|
|
|
(e)
|
Neither
it nor any other member of the Group nor any ERISA Affiliate has incurred
any material liability (including any indirect, contingent or secondary
liability) to or on account of a Plan pursuant to sections 409, 502(i) or
502(l) of ERISA or section 4975 of the Code or expects to incur any
such material liability under any of the foregoing sections
with respect to any Plan, in each case, that could reasonably be expected
to result in a Material Adverse Effect.
|
|
|
(f)
|
To
the Company’s knowledge, no condition exists which presents a material
risk to it or any other member of the Group or any ERISA Affiliate of
incurring a liability to or on account of a Plan pursuant to the
provisions of ERISA and the Code enumerated in paragraph (e) of this
Clause 21.36, that could reasonably be expected to result in a
Material Adverse Effect.
|
|
|
(g)
|
No
action, suit, proceeding, hearing, audit or investigation with respect to
the administration, operation or the investment of assets of any Plan
(other than routine claims for benefits) that could reasonably be expected
to result in a Material Adverse Effect, is pending or, to the Company’s
knowledge, expected or threatened.
|
|
|
(h)
|
Each
group health plan (as defined in section 607(1) of ERISA or section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of any member of the Group or any ERISA Affiliate has at all
times been operated in compliance with the provisions of Part 6 of
subtitle B of Title I of ERISA and section 4980B of the Code, save where
the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
|
|
|
(i)
|
It
and each other member of the Group do not maintain or contribute to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) which
provides benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or any Plan the obligations with
respect to which could reasonably be expected to have a Material Adverse
Effect.
|
|
|
(j)
|
Each
Foreign Pension Plan has been maintained in substantial compliance with
its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities, in the
case of each of the foregoing, save where the failure to do so could not
reasonably be expected to result in a Material Adverse
Effect.
|
|
|
(k)
|
All
contributions required to be made with respect to a Foreign Pension Plan
maintained by it have been made within the time limit therefor, save where
the failure to do so could not reasonably be expected to result in a
Material Adverse
Effect.
|
|
|
21.37
|
Repetition
|
|
Each
Repeating Representation is deemed to be made by the party identified as
making such Repeating Representation above in relation to itself, or in
the case of the Company in relation to itself and each Obligor or the Bank
Group as a whole (as applicable), by reference to the facts and
circumstances then existing on the Structuring Date, each Utilisation Date
(save for a Utilisation Date in respect of a Rollover Advance or a
Documentary Credit which is being renewed pursuant to Clause 5.2
(Renewal of Documentary
Credit)) and on the first day of each Interest
Period.
|
|
|
22.
|
|
|
22.1
|
Financial
Statements
|
|
(a)
|
Group
Financial Information: The Company shall provide to the Agents in
sufficient copies for all the Lenders, the following financial information
relating to the Group:
|
||
|
(i)
|
as
soon as the same become available, but in any event within 120 days
after the end of each of the Ultimate Parent’s financial years, the
consolidated financial statements for such financial year in respect of
the Group, audited by a firm of auditors meeting the requirements of
Clause 24.17 (Change in Auditors),
and accompanied by the related auditor’s report; and
|
||
|
(ii)
|
as
soon as they become available but in any event within 45 days after the
end of each Financial Quarter, the unaudited consolidated quarterly
financial statements of the Group commencing with the first complete
Financial Quarter arising after the Merger Closing Date (other than, for
so long as the Ultimate Parent remains a reporting company under the rules
of the SEC, the last Financial Quarter in each of the Ultimate Parent’s
financial years) together with, commencing with the Financial Quarter
ended 30 June 2006, a commentary consistent with disclosure in the nature
of a “Management’s Discussion and Analysis of Financial Condition and
Results of Operations”, in relation to the financial condition and results
of operations of the Group.
|
||
|
In
relation to the financial information of the Group only, the above
requirements may be satisfied by the provision, within the specified time
periods, of copies of reports for the Group already filed with the SEC for
the relevant period (it being acknowledged that the SEC does not as at the
Original Execution Date require the filing of quarterly financial
statements for the fourth Financial Quarter of any financial
year).
|
|||
|
(b)
|
Company,
TCN and Bank Group Financial Information: Subject to
Clause 22.2 (Provisions relating to the
Bank Group Financial Information), the Company shall provide to the
Agents in sufficient copies for all the Lenders, the following financial
information relating to the Company, TCN or the Bank Group, as the case
may be:
|
||
|
(i)
|
as
soon as they become available but in any event within 120 days after the
end of each of the Company’s financial years, the audited consolidated
financial statements for such financial year for the Company and (except
to the extent that TCN is a Subsidiary of the Company) within 120 days
after the end of each of TCN’s financial years, the audited consolidated
financial statements for such financial year for TCN;
|
||
|
(ii)
|
as
soon as they become available but in any event within 120 days after the
end of each of the Company’s financial years, the unaudited pro forma
balance sheet, statement of cash flows and statement of operations for
such financial year in respect of the Bank Group substantially in the form
set out in Schedule 13 (Pro Forma Bank Group Financial
Statements) or with such amendments as may be necessary to reflect
changes made to the Group’s public financial information as agreed by the
Facility Agent (acting reasonably), together with a commentary from the
management in relation to the key drivers for the financial performance of
the Bank Group for such financial year.
|
||
|
(iii)
|
as
soon as they become available but in any event within 50 days (or 90 days
for the Financial Quarter ended 31 March 2006) after the end of each of
the first three Financial Quarters of each financial year (and within 120
days after the end of the last Financial Quarter), the unaudited pro forma
balance sheet, statement of cash flows and statement of operations for
such Financial Quarter in respect of the Bank Group substantially in the
form set out in Schedule 13 (Pro Forma Bank Group Financial
Statements) or with such amendments as may be necessary to reflect
changes made to the Group’s public financial information as agreed by the
Facility Agent (acting reasonably).
|
||
|
(c)
|
Borrower
Financial Information: Each Borrower shall provide, to
the extent such information is required by any Lender to enable it to
comply with any law, regulation or other requirement of any central bank
or other fiscal, monetary or other authority, promptly following request
by such Lender, such Borrower’s most recent annual audited financial
statements to the extent the same are in final
form.
|
||
|
22.2
|
Provisions
relating to Bank Group Financial
Information
|
|
(a)
|
The
financial information of the Bank Group delivered pursuant to
paragraphs (b)(ii) and (b)(iii) of Clause 22.1 (Financial Statements)
shall be prepared in good faith using the same methodologies applied in
preparing the audited consolidated financial statements of the Ultimate
Parent delivered to the Agents pursuant to sub-paragraph (a)(i) of
Clause 22.1 (Financial
Statements).
|
||
|
(b)
|
To
the extent possible, all financial data used in preparing the financial
information of the Bank Group will be derived from:
|
||
|
(i)
|
in
the case of financial information in respect of a full financial year of
the Bank Group, the balance sheet, statement of cash flows, statement of
operations and notes to the audited consolidated financial statements of
the Ultimate Parent in respect of that financial year, including without
limitation, revenue (broken down by “Business”, “Consumer” and “Content”);
and
|
||
|
(ii)
|
in
respect of financial information in respect of any Financial Quarter of
any financial year of the Bank Group, from the balance sheet, statement of
cash flows, statement of operations and notes to the unaudited
consolidated quarterly financial statements of the Ultimate Parent for the
corresponding Financial Quarter, including without limitation, revenue
(broken down by “Business”, “Consumer” and “Content”),
|
||
|
provided
that in the event that it shall not be possible to apply the financial
data used in the financial statements or management accounts of the
Ultimate Parent, as the case may be, such financial information will be
determined in good faith based on allocation methodologies approved by the
Board of Directors of the Company.
|
|||
|
(c)
|
For
any period prior to 31 March 2007, Bank Group Consolidated Revenue shall
represent the combination of revenue of the Ultimate Parent and NTL
(without duplication) and following the consummation of the Baseball
Acquisition, for any period ending on a date prior to the first
anniversary of the Baseball Effective Date, Bank Consolidated Revenue
shall represent the combination of the Ultimate Parent, NTL and Baseball
(without duplication), in each case, for the relevant
period.
|
||
|
(d)
|
Financial
statements for the Bank Group shall reflect, for any period prior to 31
March 2007 and/or the Baseball Effective Date, the combination of the
historical statements of the Ultimate Parent and NTL and Baseball (as the
case may be) (without duplication) giving effect to the Merger and/or the
Baseball Acquisition (as the case may be) as if the Merger and/or the
Baseball Acquisition (as the case may be) had occurred as of the beginning
of the relevant period and reflecting such adjustments to give effect to
the Merger and/or the Baseball Acquisition (as the case may be) including
elimination of balance sheet and other adjustments as if of the Merger
and/or the Baseball Acquisition (as the case may be). Such combination of
historical statements will be carried out by the Company in good faith and
having regard to publicly available financial information of the NTL
Group, Telewest Group and/or the Baseball Group prior to the Merger or the
Baseball Acquisition (as the case may be).
|
||
|
22.3
|
Budget
|
||
|
In
respect of each financial year, as soon as the same becomes available and
in any event by no later than 30 days after the beginning of each
financial year of the Bank Group (other than in respect of the financial
year ended 31 December 2006), the Company shall deliver to the Agents, in
sufficient copies for the Lenders, the annual operating budget, which as
regards paragraphs (b) and (c) below shall be in the format set out
in Schedule 14 (Pro
Forma Budget Information) or with such amendments as may be
necessary to reflect changes made to the Group’s public financial
information as agreed by the Facility Agent (acting reasonably) and
prepared by reference to each Financial Quarter in respect of such
financial year of the Bank Group. The annual operating budget
shall be prepared in a form consistent with past practice of the Company
and shall
include:
|
|||
|
(a)
|
forecasts
of any projected material Disposals (including timing and anticipated Net
Proceeds thereof) on a consolidated basis for the Bank
Group;
|
|
|
(b)
|
projected
annual statements of operations (including projected revenue and operating
costs) on a consolidated basis for the Bank Group in the format set out in
Schedule 14 (Pro Forma
Budget Information) or with such amendments as may be necessary to
reflect changes made to the Group’s public financial information as agreed
by the Facility Agent (acting reasonably);
|
|
|
(c)
|
projected
estimated pro forma balance sheets and estimated pro forma statements of
cash flows on a consolidated basis for the Bank Group in the format set
out in Schedule 14 (Pro
Forma Budget Information) or with such amendments as may be
necessary to reflect changes made to the Group’s public financial
information as agreed by the Facility Agent (acting
reasonably);
|
|
|
(d)
|
projected
capital expenditure to be included for each Financial Quarter of such
financial year on a consolidated basis for the Bank
Group;
|
|
|
(e)
|
projected
ratios in respect of each of the financial covenants set out in
Clause 23.2 (Ratios) for each
Financial Quarter in such financial year; and
|
|
|
(f)
|
a
commentary from the management in relation to the key drivers for the Bank
Group for such financial year.
|
|
|
The
Company shall provide the Agents with any details of material changes in
the projections set out in any Budget delivered under this
Clause 22.3 as soon as reasonably practicable after it becomes aware
of any such
change.
|
||
|
22.4
|
Other
Information
|
|
The
Company shall and shall procure that each of the Obligors shall from time
to time on the request of the Facility Agent and/or Administrative
Agent:
|
|
(a)
|
provide
the Facility Agent and/or Administrative Agent (as applicable) with such
information about the business and financial condition of the Bank Group
or any member of the Bank Group (including such member’s business) as the
Facility Agent and/or Administrative Agent (as applicable) may
reasonably require, provided that the Company shall not be under any
obligation to provide, or procure the providing of, any information the
supply of which would be contrary to any confidentiality obligation
binding on any member of the Bank Group or where the supply of such
information could prejudice the retention of legal privilege in such
information and provided further that no Obligor shall (and the Company
shall procure that no member of the Bank Group shall) be able to deny the
Facility Agent and/or Administrative Agent (as applicable) any such
information by reason of it having entered into
a confidentiality undertaking which would prevent it from
disclosing, or be able to claim any legal privilege in respect of, any
financial information relating to itself or the Group;
and
|
|
|
(b)
|
provide
all then existing information about the business and financial condition
of the Bank Group or any member of the Bank Group (including such member’s
business) as Standard & Poor’s or Xxxxx’x may reasonably require and
extend all reasonable co-operation for the purpose of determining or
assessing the credit ratings (if any) assigned to the Facilities, the
Bridge Facility Agreement, the Alternative Bridge Facility Agreement, the
Existing High Yield Notes, the Additional High Yield Notes, any High Yield
Refinancing or the New High Yield Notes, and the Company shall use all
reasonable efforts to meet with representatives of Standard & Poor’s
and Xxxxx’x no less frequently than once in each calendar
year.
|
|
|
22.5
|
Compliance
Certificates
|
|
|
The
Company shall ensure that each set of financial information delivered by
it pursuant to sub-paragraphs (a), (b)(ii) and (b)(iii) of
Clause 22.1 (Financial Statements)
is accompanied by a Compliance Certificate signed by two of its authorised
signatories (at least one of whom shall be a Financial Officer)
which:
|
||
|
(a)
|
where
the relevant financial statements being delivered relate to a period
ending on a Quarter Date in respect of which the financial covenants are
required to be tested in accordance with paragraphs (d) and (e) of
Clause 23.2 (Ratios) or, prior to
commencement of testing of the financial covenants, in respect of which a
change to any Applicable Margin is required under Clause 13.3 (Margin Ratchet for Revolving
Facility Advances and, Prior to a Paydown Event, Secondary Revolving
Facility Advances), Clause 13.4 (Margin Ratchet for Secondary
Revolving Facility Advances on and after a Paydown Event),
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)), or Clause 14.8 (Margin Ratchet for A2 Facility
Advances and A3 Facility Advances on and after a Paydown
Event):
|
||
|
(i)
|
confirms
compliance (or detailing any non-compliance) with the relevant financial
covenants set out in Clause 23 (Financial Condition)
(if applicable) and showing figures representing the actual financial
ratios then in effect;
|
||
|
(ii)
|
attaches
a working paper (the “Attached Working Paper”)
setting out the calculations showing compliance with the financial
covenants set out in Clause 23 (Financial Condition)
(if applicable) and the information from which such calculations are
derived (including the calculations for the components of such covenants
defined in Clause 23.1 (Financial Definitions)
on a line by line basis); and
|
||
|
(iii)
|
confirms
that the information contained in the Attached Working Paper has been
prepared on the basis of the same information and methodology used to
prepare the appropriate financial information;
|
||
|
(b)
|
in
relation to a Compliance Certificate delivered with the Bank Group’s
annual financial information only:
|
||
|
(i)
|
confirms
the Bank Group Consolidated Revenues for the financial year ended on that
Quarter Date; and
|
||
|
(ii)
|
confirms
compliance (or detailing any non-compliance) with the 80% Security Test;
and
|
||
|
(c)
|
in
the case of each Compliance Certificate delivered pursuant to this
Clause 22.5, confirms the absence of any Default.
|
||
|
in
each case, as at the end of such financial year or Financial Quarter to
which such financial information
relates.
|
|||
|
22.6
|
Access
|
If:
| (a) |
an
Event of Default has occurred, but only while such Event of Default is
continuing, (provided that with respect to an Event of Default relating to
a breach of any covenant in Clause 23 (Financial Condition),
such Event of Default shall be deemed to be continuing until such time
that the Company has delivered a Compliance Certificate pursuant to
Clause 22.5 (Compliance
Certificates) demonstrating that the Company is in compliance with
each of the covenants set out in Clause 23 (Financial Condition));
or
|
| (b) |
in
the reasonable opinion of an Instructing Group, a breach of any covenant
in Clause 23 (Financial Condition) is
reasonably likely to
occur,
|
in each
such circumstance, at the Obligors’ expense (in the case of
sub-paragraph (a)) and at the Lenders’ expense (in the case of
sub-paragraph (b)), but without causing any undue interruption to the
normal business operations of such Obligor or any member of the Bank
Group:
| (i) |
the
Facility Agent shall be entitled to call for an independent audit and
investigation which is reasonable in scope and degree having regard to the
nature of the Event of Default or suspected breach (as the case may be) or
the financial position of the Bank Group; and
|
||
| (ii) |
the Facility Agent,
any Finance Party, or representative of the Facility Agent or such Finance
Party (an “Inspecting
Party”) shall be entitled to have access, together with its
accountants or other professional advisers, during normal business hours,
to inspect or observe such part of the Group Business as is owned or
operated by any Obligor or any member of the Bank Group, and to have
access to books, records, accounts, documents, computer programmes, data
or other information in the possession of or available to such Obligor or
member of the Bank Group and to take such copies as may be considered
appropriate by such Inspecting Party, provided that no Obligor shall (and
the Company shall not be obliged to procure that any member of the Bank
Group shall) be under any obligation to allow any person to have access to
any books, records, accounts, documents, computer programmes, data or
other information or to take copies thereof where to do so would breach
any confidentiality obligation binding on any member of the Group or would
prejudice the retention of legal privilege to which such Obligor or member
of the Group is then entitled in respect of such books, records, accounts,
documents, computer programmes, data or other information and provided
further that no Obligor shall (and the Company shall procure that no
member of the Bank Group shall) be able to deny the Facility Agent any
such information by reason of it having entered into
a confidentiality undertaking which would prevent it from
disclosing, or be able to claim any legal privilege in respect of, any
financial information relating to itself or the
Group.
|
|
22.7
|
Change
in Accounting Practices
|
The
Company shall ensure that each set of financial information delivered to the
Agents pursuant to paragraphs (a) and (b) of Clause 22.1 (Financial Statements) is
prepared using accounting policies, practices and procedures consistent with
that applied in the preparation of NTL’s Original Financial Statements, unless
in relation to any such set of financial information, the Company elects to
notify the Agents that there have been one or more changes in any such
accounting policies, practices or procedures (including, without limitation, any
change in the basis upon which costs are capitalised) and:
| (a) |
in
respect of any change in the basis upon which the information required to
be delivered pursuant to sub-paragraphs (a)(i) or (a)(ii) of
Clause 22.1 (Financial Statements)
is prepared, the Ultimate Parent
provides:
|
| (i) |
a
description of the changes and the adjustments which would be required to
be made to that financial information in order to cause them to reflect
the accounting policies, practices or procedures upon which such Original
Financial Statements were prepared; and
|
||
| (ii) | sufficient information, in such detail and format as may be reasonably required by the Facility Agent, to enable the Lenders to make an accurate comparison between the financial positions indicated by that financial information and by such Original Financial Statements, |
and any
reference in this Agreement to that financial information shall be construed as
a reference to that financial information as adjusted to reflect the basis upon
which the Original Financial Statements were prepared; or
| (b) |
the
Company notifies the Facility Agent that it is not longer practicable to
test compliance with the financial covenants set out in Clause 23
(Financial
Condition) against the financial information required to be
delivered pursuant to this Clause 22 or that it wishes to cease
preparing the additional information required by sub-paragraph (a)
above, in which
case:
|
| (i) |
the
Facility Agent and the Company shall enter into negotiations with a view
to agreeing alternative financial covenants to replace those contained in
Clause 23 (Financial Condition) in
order to maintain a consistent basis for such financial covenants (and for
approval by an Instructing Group); and
|
||
| (ii) | if the Facility Agent and the Company agree alternative financial covenants to replace those contained in Clause 23 (Financial Condition) which are acceptable to an Instructing Group, such alternative financial covenants shall be binding on all parties hereto; and |
| (iii) |
if,
after three months following the date of the notice given to the Facility
Agent pursuant to this sub-paragraph (b), the Facility Agent and the
Company cannot agree alternative financial covenants which are acceptable
to an Instructing Group, the Facility Agent shall refer the matter to any
of the Permitted Auditors as may be agreed between the Company and the
Facility Agent for determination of the adjustments required to be made to
such financial information or the calculation of such ratios to take
account of such change, such determination to be binding on the parties
hereto, provided that pending such determination (but not thereafter) the
Company shall continue to prepare financial information and calculate such
covenants in accordance with paragraph (a)
above.
|
|
22.8
|
Notifications
|
The
Company shall furnish or procure that there shall be furnished to the Agents in
sufficient copies for each of the Lenders:
| (a) |
as
soon as reasonably practicable, documents required to be despatched by the
Ultimate Parent to its shareholders generally (or any class of them) in
their capacity as such and all documents relating to the financial
obligations of any Obligor despatched by or on behalf of any Obligor to
its creditors generally (in their capacity as creditors) it being agreed
that to the extent such information is filed with the SEC, such filing
will satisfy the Company’s obligations with regard to the provision of
such
information;
|
| (b) |
as
soon as reasonably practicable after the same are instituted or, to its
knowledge, threatened, details of any litigation, arbitration or
administrative proceedings involving any member of the Bank Group which,
is reasonably likely to be adversely determined and if adversely
determined, could reasonably be expected to have a Material Adverse
Effect;
and
|
| (c) |
written
details of any Default promptly upon becoming aware of the same, and of
all remedial steps being taken and proposed to be taken in respect of that
Default.
|
|
22.9
|
Role
of the Administrative Agent and US Paying
Agent
|
Notwithstanding
the rights of the Administrative Agent and the US Paying Agent to receive or
request certain documentation and other information as set out in this
Clause 22 (Financial
Information), the other Finance Parties hereby expressly acknowledge and
agree that the Administrative Agent and the US Paying Agent (a) are under no
obligation to ensure that any such documentation or other information is made
available to all or any of them, (b) may (in its sole discretion) determine
whether or not to exercise any of its rights as set out in this Clause 22
(Financial Information)
and (c) shall have no liability whatsoever to any other Finance Party for the
failure to exercise, or any delay in exercising, any of its rights set out in
this Clause 22 (Financial
Information).
|
23.1
|
Financial
Definitions
|
In this
Agreement the following terms have the following meanings:
“Bank Group Cash Flow” means,
in respect of any period, Consolidated Operating Cashflow for that period
(excluding for this purpose all Permitted Joint Venture Proceeds for such period
and/or Permitted Joint Venture Net Operating Cash Flow for such period included
in Consolidated Operating Cashflow pursuant to paragraph (d) of the
definition thereof) after:
| (a) |
adding
back:
|
| (i) |
any
decrease in the amount of Working Capital at the end of such period
compared against the Working Capital at the start of such
period;
|
||
| (ii) | all cash extraordinary or non-recurring gains during that period to the extent not included in Consolidated Operating Cashflow; |
| (iii) |
any
amount received in cash in that period by members of the Bank Group in
respect of income and related taxes;
|
||
| (iv) | all Permitted Joint Venture Proceeds received for such period; and |
| (v) |
all
proceeds from disposals of assets purchased up to 90 days previously
pursuant to sale and leaseback transactions otherwise permitted under this
Agreement;
|
| (b) |
deducting:
|
| (i) |
the
actual capital expenditure of members of the Bank Group during such period
and in calculating Bank Group Cash Flow for the purposes of
Clause 12.4 (Repayment from Excess
Cashflow) only, the aggregate of the consideration paid for or cost
of any permitted acquisitions and the amount of any investments in Joint
Ventures made in the period by the member of the Bank Group to the extent
included in Consolidated Operating Cashflow;
|
||
| (ii) | any increase in the amount of Working Capital at the end of such period compared against the Working Capital at the start of that period; |
| (iii) |
any
amount paid in cash in that period by any member of the Bank Group in
respect of income and related taxes;
|
||
| (iv) | all cash extraordinary or non-recurring losses during that period to the extent not included in Consolidated Operating Cashflow; |
| (v) |
in
calculating Bank Group Cash Flow for the purposes of Clause 12.4
(Repayment from Excess
Cash Flow) only, any amount paid in cash in that period in respect
of the items included in the calculation of net income or loss in the
definition of Consolidated Operating Cashflow and any amounts paid in cash
in respect of payments made or paid during such period by any member of
the Bank Group to any person who is not a member of the Bank Group
including without limitation, the payment of all costs and expenses in
connection with transactions contemplated by the Finance Documents and the
Bridge Finance Documents; and
|
||
| (vi) |
any amount paid in
cash in that period in respect of dividends, distributions, loans,
investments or other similar payments made or paid during such period by
any member of the Bank Group to any person who is not a member of the Bank
Group and any cash charges falling under sub-paragraph (a)(ix) of
“Consolidated Operating Cashflow” which have been added back for the
purposes of calculating such
definition,
|
provided
that in no event shall amounts constituting Consolidated Debt Service be
deducted from Bank Group Cash Flow, and no amount shall be included or excluded
more than once and provided that, for the avoidance of doubt, in calculating
Bank Group Cash Flow for the purposes of Clause 12.4 (Repayment from Excess Cash
Flow), Equity Proceeds, Debt Proceeds and Net Proceeds and the proceeds
of any Subordinated Funding shall be excluded.
“Cash” means at any
time:
| (a) |
all
Cash Equivalent Investments;
and
|
| (b) |
cash
(in cleared balances) denominated in Sterling (or any other currency
freely convertible into Sterling) and credited to an account in the name
of a member of the Bank Group with an Eligible Deposit Bank and to which
such a member of the Bank Group is alone beneficially entitled and for so
long
as:
|
| (i) |
such
cash is repayable on demand (including any cash held on time deposit which
is capable of being broken and the balance received on same day notice
provided that any such cash shall only be taken into account net of any
penalties or costs which would be incurred in breaking the relevant time
deposit) and repayment of such cash is not contingent on the prior
discharge of any other indebtedness of any member of the Bank Group or of
any other person whatsoever or on the satisfaction of any other condition;
or
|
||
| (ii) |
such
cash has been deposited with an Eligible Deposit Bank as security for any
performance bond, guarantee, standby letter of credit or similar facility
the contingent liabilities relating to such having been included in the
calculation of Consolidated Total
Debt.
|
“Consolidated Debt Service”
means, in respect of any period, the aggregate of:
| (a) |
the
Consolidated Total Net Cash Interest Payable in respect of such period;
and
|
| (b) |
save
to the extent immediately reborrowed and excluding for all purposes any of
the Paydown Amount and (except at the relevant Final Maturity Date) any
amount, the payment of which has been rescheduled from the Amortisation
Repayment Date to the Final Maturity Date for the A2 Facility and the A3
Facility upon the occurrence of a Paydown Event, the aggregate of all
scheduled payments (excluding any voluntary and mandatory prepayments)
made in such period of principal, capital or nominal amounts in respect of
Consolidated Total
Debt.
|
“Consolidated Net Debt” means,
at any time, the Consolidated Total Debt at such time less Cash, in cleared
balances at such time, credited to any account in the name of a member of the
Bank Group subject to a maximum aggregate Cash amount of £200,000,000 (or its
equivalent in other currencies).
“Consolidated Net Income” means
for any period, with respect to any person, net income (or loss) after taxes for
such period of such person (calculated on a consolidated basis, if it has
Subsidiaries) determined in accordance with GAAP.
“Consolidated Operating
Cashflow” means, in respect of any period:
|
|
(a)
|
Consolidated
Net Income of the Bank Group for such period, in accordance with GAAP as
then in effect adding back (or deducting as the case may be) (only to the
extent used in arriving at net income or loss of the Bank
Group):
|
|
|
(i)
|
non-cash
gains or losses, whether extraordinary, recurring or otherwise (excluding
however any non-cash charge to the extent that it represents amortisation
of a prepaid expense that was paid in a prior period or an accrual of, or
a reserve for, cash charges or expenses in any future period), and
including without limitation non-cash expenses for compensation relating
to the granting of options and restricted stock, sale of stock and similar
arrangements;
|
|
|
(ii)
|
income
tax expense or benefit;
|
|
|
(iii)
|
foreign
currency transaction gains and losses and foreign currency translation
differences;
|
|
|
(iv)
|
other
non-operating gains and losses, including the costs of, and accounting
for, financial instruments and gains and losses on disposals of fixed
assets;
|
|
|
(v)
|
share
of income or losses from equity investments and minority
interests;
|
|
|
(vi)
|
interest
expense and interest income, including, without limitation, the
amortisation of debt issuance cost, amendment cost, debt discount and
consent payments;
|
|
|
(vii)
|
depreciation
and amortisation;
|
| (viii) | extraordinary items; |
|
|
(ix)
|
at
the election of the Company, cash charges resulting from any third party
professional, advisory, legal and accounting fees and out-of-pocket
expenses reasonably incurred in connection with the Merger, the Baseball
Scheme, an acquisition or investment, any financing (in any such case,
whether completed or not) provided that the aggregate amount added back in
respect of such fees and expenses shall not at any time exceed £25
million;
|
|
|
(x)
|
restructuring
charges determined in accordance with FAS 146 in an amount of up to £50
million for the financial year during which the Merger Closing Date occurs
(or £60 million in the event that the Baseball Acquisition also occurs
during such financial year (other than pursuant to a Stand Alone Baseball
Financing)) (“Year
1”) and up to £50 million in the following financial year (or £60
million in the event that the Baseball Acquisition has occurred during
such financial year or during Year 1 (in either case, other than pursuant
to a Stand Alone Baseball Financing)) (“Year 2”) provided that
any unutilised amounts from Year 1 may be carried forward to Year 2 and
any unutilised amounts from Year 2 (including, for the avoidance of doubt,
any amounts rolled over from Year 1) may be carried forward and added back
to Consolidated Operating Cashflow in the period from the end of Year 2 to
the third anniversary of the Merger Closing
Date;
|
|
|
(xi)
|
cumulative
changes in GAAP from and including the accounting principles applied in
the preparation of the Original Financial Statements,
and
|
|
|
(xii)
|
restructuring
charges and related costs of the type referred to in the Ultimate Parent’s
business plan dated 13 October 2008 in an amount of up to
£75 million for the 2008 and 2009 financial years (together, “Year 1”) and up to
£15 million in the 2010 financial year (“Year 2”) provided that
any unutilised amounts from Year 1 may be carried forward to Year 2 (and
any such amounts carried forward will be utilised before any other amounts
in Year 2) and any unutilised amounts from Year 2 (excluding any
amounts carried forward from Year 1) may be carried forward and added
back to Consolidated Operating Cashflow in the 2011 financial year, to the
extent spent in such 2011 financial
year,
|
minus
|
|
(b)
|
the
Excluded Group Operating Cashflow for that period (to the extent included
in the calculation of paragraph (a)
above);
|
|
|
(c)
|
to
the extent included in Consolidated Net Income for such period and not
otherwise deducted pursuant to paragraph (a)
above:
|
|
|
(i)
|
that
portion of the share of profit or loss from Permitted Joint Ventures;
and
|
|
|
(ii)
|
the
aggregate amount of all interest income and/or dividends received during
such period from one or more of the Permitted Joint
Ventures;
|
plus
|
|
(d)
|
the
lower of (i) the aggregate Permitted Joint Venture Proceeds actually
received by the Bank Group during such period and (ii) the aggregate of
the proportionate interests of each member of the Bank Group in any
Permitted Joint Venture Net Operating Cash Flow for such
period.
|
“Consolidated Total Debt”
means, at any time (without double counting):
|
|
(a)
|
the
aggregate principal, capital or nominal amounts (including any Interest
capitalised as principal) of Financial Indebtedness of any member of the
Bank Group (including, without limitation, Financial Indebtedness arising
under or pursuant to the Finance Documents);
plus
|
|
|
(b)
|
the
aggregate principal, capital or nominal amounts (including any Interest
capitalised as principal) of Financial Indebtedness of any member of the
Group to the extent it is Non-Bank Group Serviceable
Debt;
|
excluding any Financial
Indebtedness of any member of the Group to another member of the Group or under
any Subordinated Funding, to the extent not prohibited under this Agreement and
excluding any Financial Indebtedness arising by reason only of xxxx to market
fluctuations in respect of interest rate hedging arrangements since the original
date on which such interest rate hedging arrangements were
consummated.
“Consolidated Total Net Cash Interest
Payable” means, in respect of any period, the aggregate amount of the
Interest which has accrued on the Consolidated Total Debt during such period
(but excluding for the avoidance of doubt any fees and consent payments payable
in or amortised during such period) but deducting any Interest
actually received in cash by any member of the Bank Group.
“Current Assets” means the
aggregate of trade and other receivables (net of allowances for doubtful debts),
prepayments and all other current assets of the Bank Group (which until such
time as balance sheets are prepared for the Bank Group shall be allocated from
the relevant consolidated financial statements of the Group to the Bank Group by
the board of directors of the Company acting in good faith) maturing within
twelve months from the date of computation, as required to be accounted for as
current assets under GAAP but excluding cash and Cash Equivalent Investments and
excluding the impact of Hedging Agreements.
“Current Liabilities” means the
aggregate of all liabilities (including accounts payable, accruals and
provisions) of the Bank Group (which until such time as balance sheets are
prepared for the Bank Group shall be allocated to the Bank Group from the
relevant consolidated financial statements of the Group by the board of
directors of the Company acting in good faith) falling due within twelve months
from the date of computation and required to be accounted for as current
liabilities under GAAP but excluding Financial Indebtedness of the Bank Group
falling due within such period and any interest on such Financial Indebtedness
due in such period and excluding the impact of Hedging Agreements.
“Eligible Deposit Bank” means
any bank or financial institution which has a short term rating of at least A1
granted by Standard & Poor’s or P1 granted by Xxxxx’x.
“Excluded Group Operating
Cashflow” means, in respect of any period, that proportion of
Consolidated Net Income which is attributable to the Excluded Group for that
period adding back (or deducting as the case may be) (to the extent used in
arriving at net profit or loss of the Excluded Group):
|
|
(a)
|
non-cash
gains or losses, whether extraordinary, recurring or otherwise (excluding
however any non-cash charge to the extent that it represents amortisation
of a prepaid expense that was paid in a prior period or an accrual of, or
a reserve for, cash charges or expenses in any future period), and
including without limitation non-cash expenses for compensation relating
to the granting of options and restricted stock, sale of stock and similar
arrangements;
|
|
|
(b)
|
income
tax expense or benefit;
|
|
|
(c)
|
foreign
currency transaction gains and losses and foreign currency translation
differences;
|
|
|
(d)
|
other
non-operating gains and losses, including the costs of, and accounting
for, financial instruments and gains and losses on disposals of fixed
assets;
|
|
|
(e)
|
share
of income or losses from equity investments and minority
interests;
|
|
|
(f)
|
interest
expense and interest income, including, without limitation, the
amortisation of debt issuance cost, amendment cost, debt discount and
consent payments;
|
|
|
(g)
|
depreciation
and amortisation;
|
|
|
(h)
|
extraordinary
items;
|
|
|
(i)
|
restructuring
charges determined in accordance with FAS 146; and
|
| (j) | cumulative changes in GAAP from the Original Execution Date. |
“Financial Quarter” means the
period commencing on the day immediately following any Quarter Date in each
year, and ending on the next succeeding Quarter Date.
“Interest” means:
|
|
(a)
|
interest
and amounts in the nature of interest accrued in respect of any Financial
Indebtedness (including without limitation, in respect of obligations
under finance or capital leases or hire purchase
payments);
|
|
|
(b)
|
discounts
suffered and repayment premiums payable in respect of Financial
Indebtedness, in each case to the extent applicable GAAP requires that
such discounts and premiums be treated as or in like manner to
interest;
|
|
|
(c)
|
discount
fees and acceptance fees payable or deducted in respect of any Financial
Indebtedness (including all fees payable in connection with any
Documentary Credit, any other letters of credit or guarantees and any
Ancillary Facility);
|
|
|
(d)
|
any
other costs, expenses and deductions of the like effect and any net
payment (or, if appropriate in the context, receipt) under any Hedging
Agreement or like instrument, taking into account any premiums payable for
the same, and the interest element of any net payment under any Hedging
Agreement; and
|
|
|
(e)
|
commitment
and non-utilisation fees (including, without limitation, those payable
under this Agreement) but excluding consent payments, agent’s and advisory
fees, front-end, management, arrangement and participation fees and
repayment premiums with respect to any Financial Indebtedness (including,
without limitation, all those payable under the Finance
Documents).
|
“Permitted Joint Venture Net Operating
Cash Flow” means the aggregate of the proportionate interests of each
member of the Group in any Permitted Joint Venture of such Joint Venture’s
Consolidated Net Income for such period adding back (or deducting as the case
may be) (only to the extent used in arriving at consolidated net income or loss
of such Joint Venture):
|
|
(a)
|
non-cash
gains or losses, whether extraordinary, recurring or otherwise (excluding
however any non-cash charge to the extent that it represents amortisation
of a prepaid expense that was paid in a prior period or an accrual of, or
a reserve for, cash charges or expenses in any future period), and
including without limitation non-cash expenses for compensation relating
to the granting of options and restricted stock, sale of stock and similar
arrangements;
|
|
|
(b)
|
income
tax expense or benefit;
|
|
|
(c)
|
foreign
currency transaction gains and losses and foreign currency translation
differences;
|
|
|
(d)
|
other
non-operating gains and losses, including the costs of, and accounting
for, financial instruments and gains and losses on disposals of fixed
assets;
|
|
|
(e)
|
share
of income or losses from equity investments and minority
interests;
|
|
|
(f)
|
interest
expense and interest income including, without limitation, amortisation of
debt issuance cost and debt
discount;
|
|
|
(g)
|
depreciation
and amortisation;
|
|
|
(h)
|
extraordinary
items;
|
|
|
(i)
|
restructuring
charges determined in accordance with FAS 146;
and
|
|
|
(j)
|
cumulative
changes in GAAP from the Original Execution
Date.
|
“Permitted Joint Venture
Proceeds” means the cash proceeds of all payments of interest and
principal received under Financial Indebtedness and of all dividends,
distributions or other payments (including management fees) made by any
Permitted Joint Venture to any member of the Bank Group.
“Quarter Date” means each of 31
March, 30 June, 30 September and 31 December in each financial year of the
Company.
“Working Capital” means on any
date Current Assets less Current Liabilities.
|
23.2
|
Ratios
|
With
effect from (and including) the end of the third full Financial Quarter after
the Merger Closing Date, the financial condition of the Group or the Bank Group,
as the case may be, as evidenced by the financial information provided pursuant
to paragraphs (a) and (b) of Clause 22.1 (Financial Statements) and the
Attached Working Paper referred to in Clause 22.5 (Compliance Certificates)
shall be such that:
| (a) |
Leverage
Ratio: Consolidated Net Debt to Consolidated Operating
Cashflow
|
Subject
to paragraph (f) below, Consolidated Net Debt as at:
| (i) |
any
Quarter Date specified in the table in paragraph (d) of this
Clause 23.2 that is before a Paydown Event; or
|
||
| (ii) | any Quarter Date specified in paragraph (e) of this Clause 23.2 that is on or after a Paydown Event, |
shall not
be more than X times Consolidated Operating Cashflow calculated on a rolling
twelve month basis ending on such Quarter Date, where X has the value indicated
for such Quarter Date in such table and, for the purposes of the calculation of
the Leverage Ratio as at any Quarter Date, giving pro forma effect to the
Utilisation of the B5 Facility and the B6 Facility.
| (b) |
Interest
Coverage Ratio: Consolidated Operating Cashflow to Consolidated Total Net
Cash Interest
Payable
|
Subject
to paragraph (f) below, Consolidated Operating Cashflow calculated on a
rolling twelve month basis ending on:
| (i) |
any
Quarter Date specified in the table in paragraph (d) of this
Clause 23.2 that is before a Paydown Event; or
|
||
| (ii) | any Quarter Date specified in paragraph (e) of this Clause 23.2 that is after a Paydown Event, |
shall not
be less than Y times Consolidated Total Net Cash Interest Payable calculated on
a rolling twelve month basis, where Y has the value indicated for such period in
such table, provided that (to the extent applicable) in the case of the test
falling on 31 December 2006:
| (i) |
Consolidated
Operating Cashflow shall be calculated in accordance with the principles
specified in paragraph (d) of Clause 22.2 (Provisions relating to Bank
Group Financial Information); and
|
||
| (ii) | Consolidated Total Net Cash Interest Payable shall be calculated by annualising (on the basis of the actual number of days in such period and a 365 day year) the Consolidated Total Net Cash Interest Payable for the period commencing on the Merger Closing Date and ending on 31 December 2006. |
| (c) |
Debt
Service Coverage Ratio: Bank Group Cash Flow to Consolidated Debt
Service
|
Subject
to paragraph (f) below, Bank Group Cash Flow calculated for each rolling
twelve month period ending on:
| (i) |
each
Quarter Date specified in the table in paragraph (d) of this
Clause 23.2 that is before a Paydown Event; or
|
||
| (ii) | any Quarter Date specified in paragraph (e) of this Clause 23.2 that is on or after a Paydown Event, |
shall not
be less than Z times Consolidated Debt Service for such period where Z has the
value indicated for such period in such table provided that (to the extent
applicable) in the case of the test falling on 31 December 2006:
| (i) |
Bank
Group Cash Flow shall be calculated in accordance with the principles
specified in paragraph (d) of Clause 22.2 (Provisions relating to Bank
Group Financial Information); and
|
||
| (ii) | Consolidated Debt Service shall be calculated by annualising (on the basis of the actual number of days in such period and a 365 day year) the Consolidated Debt Service for the period commencing on the Merger Closing Date and ending on 31 December 2006. |
| (d) |
Ratio
Table Prior to a Paydown
Event
|
This is
one of the tables referred to in paragraphs (a) to (c) above.
|
Leverage
Ratio
|
Interest
Coverage
Ratio
|
Debt
Service Coverage Ratio
|
||
|
Quarter
Date
|
X
|
Y
|
Z
|
|
|
31
December 2006
|
5.45:1
|
2.30:1
|
1:1
|
|
|
31
March 2007
|
5.25:1
|
2.35:1
|
Not
tested
|
|
|
30
June 2007
|
5.25:1
|
2.35:1
|
Not
tested
|
|
|
30
September 2007
|
5.25:1
|
2.35:1
|
Not
tested
|
|
|
31
December 2007
|
5.25:1
|
2.35:1
|
Not
tested
|
|
|
31
March 2008
|
5.00:1
|
2.35:1
|
Not
tested
|
|
|
30
June 2008
|
4.90:1
|
2.50:1
|
Not
tested
|
|
|
30
September 2008
|
4.90:1
|
2.55:1
|
Not
tested
|
|
|
31
December 2008
|
4.90:1
|
2.60:1
|
Not
tested
|
|
|
31
March 2009
|
4.85:1
|
2.65:1
|
Not
tested
|
|
|
30
June 2009
|
4.70:1
|
2.80:1
|
Not
tested
|
|
|
30
September 2009
|
4.40:1
|
3.00:1
|
1:1
|
|
|
31
December 2009
|
4.15:1
|
3.15:1
|
1:1
|
|
|
31
March 2010
|
4.00:1
|
3.35:1
|
1:1
|
|
|
30
June 2010
|
4.00:1
|
3.55:1
|
1:1
|
|
|
30
September 2010
|
3.70:1
|
3.75:1
|
1:1
|
|
|
31
December 2010
|
3.60:1
|
3.75:1
|
1:1
|
|
|
31
March 2011
|
3.40:1
|
4.00:1
|
1:1
|
|
|
30
June 2011
|
3.25:1
|
4.00:1
|
1:1
|
|
|
30
September 2011
|
3.00:1
|
4.00:1
|
1:1
|
|
|
31
December 2011 and thereafter
|
3.00:1
|
4.00:1
|
1:1
|
| (e) |
Ratio
Table Following a Paydown
Event
|
This is
one of the tables referred to in paragraphs (a) to (c) above.
|
Leverage
Ratio
|
Interest
Coverage
Ratio
|
Debt
Service Coverage Ratio
|
||
|
Quarter
Date
|
X
|
Y
|
Z
|
|
|
30
September 2008
|
4.90:1
|
2.55:1
|
Not
tested
|
|
|
31
December 2008
|
4.90:1
|
2.60:1
|
Not
tested
|
|
|
31
March 2009
|
4.85:1
|
2.60:1
|
Not
tested
|
|
|
30
June 2009
|
4.70:1
|
2.60:1
|
Not
tested
|
|
|
30
September 2009
|
4.40:1
|
2.60:1
|
1:1
|
|
|
31
December 2009
|
4.25:1
|
2.60:1
|
1:1
|
|
|
31
March 2010
|
4.25:1
|
2.60:1
|
1:1
|
|
|
30
June 2010
|
4.10:1
|
2.65:1
|
1:1
|
|
|
30
September 2010
|
4.00:1
|
2.70:1
|
1:1
|
|
|
31
December 2010
|
3.90:1
|
2.75:1
|
1:1
|
|
|
31
March 2011
|
3.75:1
|
2.85:1
|
1:1
|
|
|
30
June 2011
|
3.70:1
|
2.90:1
|
1:1
|
|
|
30
September 2011
|
3.60:1
|
3.00:1
|
1:1
|
|
|
31
December 2011
|
3.50:1
|
3.05:1
|
1:1
|
|
|
31
March 2012
|
3.50:1
|
3.10:1
|
1:1
|
|
|
30
June 2012
|
3.00:1
|
3.20:1
|
1:1
|
|
|
30
September 2012
|
3.00:1
|
4.00:1
|
1:1
|
|
|
31
December 2012 and thereafter
|
3.00:1
|
4.00:1
|
1:1
|
| (f) |
If
any Compliance Certificate delivered pursuant to Clause 22.5 (Compliance
Certificates) demonstrates that the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow in respect of the relevant Quarter Date
for which such Compliance Certificate was delivered was 4.25:1 or lower,
the covenants which are required to be tested pursuant to
paragraphs (a), (b) and (c) above shall thereafter, and for so long
as the ratio of Consolidated Net Debt to Consolidated Operating Cashflow
as at each subsequent Quarter Date remains at 4.25:1 or lower, be tested
on each alternative Quarter Date shown on the table in paragraph (d)
above (prior to a Paydown Event), or, on or after a Paydown Event,
paragraph (e) above. In the event that any Compliance
Certificate delivered pursuant to Clause 22.5 (Compliance
Certificates) demonstrates that the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow in respect of any Quarter Date for
which such Compliance Certificate was delivered exceeds 4.25:1, the
covenants which are required to be tested pursuant to paragraphs (a),
(b) and (c) above shall thereafter, and for so long as the ratio of
Consolidated Net Debt to Consolidated Operating Cashflow as at each
subsequent Quarter Date exceeds 4.25:1 be tested, in accordance with
paragraphs (a), (b) and (c) above, on each subsequent Quarter
Date.
|
|
23.3
|
Equity
Cure Right
|
| (a) |
Subject
to paragraph (b) below, if any Compliance Certificate delivered by
the Company demonstrated that the Bank Group is in breach of any of the
financial covenants set out in paragraphs (a), (b) or (c) of
Clause 23.2 (Ratios) as at the
relevant Quarter Date to which such Compliance Certificate relates, then
the Company may, at its option, within 5 Business Days of delivery of such
Compliance Certificate and without prejudice to the rights of the Lenders
under Clause 27 (Events of Default) cure
such breach (an “Equity
Cure Right”) by procuring that the proceeds of any New Equity be
contributed into the Bank Group and
either:
|
| (i) |
applied
towards the prepayment of the Term Facilities; or
|
||
| (ii) | added back to the calculation of Consolidated Operating Cashflow, |
in each
case, in an amount which, if such test(s) were to be recalculated as at such
Quarter Date but giving effect to such application or add-back, such test(s)
would have been satisfied.
| (b) |
The
Equity Cure Right shall be subject to the following
conditions:
|
| (i) |
subject
to sub-paragraph (ii) below, such Equity Cure Right may not be used
on more than three occasions over the life of the
Facilities;
|
||
| (ii) | in the case of an add-back to the calculation of Consolidated Operating Cashflow, such Equity Cure Right may only be used on one occasion over the life of the Facilities, and in an amount not exceeding £100 million; |
| (iii) |
in
the case of an add-back to the calculation of Consolidated Operating
Cashflow, such add-back may not be rolled forward or otherwise taken into
account on any subsequent Quarter Date on which such financial covenants
are to be tested; and
|
||
| (iv) | such Equity Cure Right may not be used for any two consecutive Quarter Dates. |
| (c) |
Any
proceeds of New Equity which are contributed into the Bank Group for the
purposes specified above, shall thereafter be retained within the Bank
Group.
|
|
23.4
|
Currency
Calculations
|
Where any
financial information with reference to which any of the covenants in
Clause 23.2 (Ratios) are tested states
amounts in a currency other than Sterling such amounts shall, for the purposes
of testing such covenants be converted from such currency into Sterling at the
rate used in such financial information for the purpose of converting such
amounts from Sterling into the currency in which they are stated in such
financial information or where no such rate is stated in such financial
information at an appropriate rate selected by the Company, acting
reasonably.
|
23.5
|
Pro
Forma Calculations
|
For the
purposes of testing compliance with the financial covenants set out in
Clause 23.2 (Ratios), the calculation of
such ratios shall be made on a pro forma basis giving effect to all material
acquisitions and disposals made by the Bank Group during the relevant period of
calculation based on historical financial results of the items being acquired or
disposed of.
|
24.1
|
Application
of Advances
|
The
Parent shall each ensure that the proceeds of each Advance made under this
Agreement are applied exclusively for the applicable purposes specified in
Clause 2.4 (Purpose).
|
24.2
|
Financial
Assistance and Fraudulent
Conveyance
|
The
Parent and each Obligor shall (and the Company shall procure that each member of
the Bank Group shall) ensure that its execution of the Finance Documents to
which it is a party and the performance of its obligations thereunder does not
contravene any applicable local laws and regulations concerning fraudulent
conveyance, financial assistance by a company for the acquisition of or
subscription for its own shares or the shares of its parent or any other company
or concerning the protection of shareholders’ capital.
|
24.3
|
Necessary
Authorisations
|
The
Parent and each Obligor shall (and the Company shall procure that each member of
the Bank Group shall):
| (a) |
obtain,
comply with and do all that is necessary to maintain in full force and
effect all Necessary Authorisations, except where a failure to do so could
not reasonably be expected to have a Material Adverse Effect;
and
|
| (b) |
promptly
upon request of the Facility Agent, supply certified copies to the
Facility Agent of any such Necessary Authorisations so
requested.
|
|
24.4
|
Compliance
with Applicable Laws
|
The
Parent and each Obligor shall (and the Company shall procure that each member of
the Bank Group shall) comply with all applicable laws to which it is subject in
respect of the conduct of its business and the ownership of its assets
(including, without limitation, all Statutory Requirements), in each case, where
a failure so to comply could reasonably be expected to have a Material Adverse
Effect.
|
24.5
|
Insurance
|
| (a) |
Each
Obligor shall (and the Company shall procure that each member of the Bank
Group shall) effect and maintain insurances on and in relation to its
business and assets against such risks and to such extent as is necessary
or usual for prudent companies carrying on a business such as that carried
on by such Obligor or member of the Bank Group with either a Captive
Insurance Company or a reputable underwriter or insurance company except
to the extent disclosed in the Group’s public disclosure documents or to
the extent that the failure to so insure could not reasonably be expected
to have a Material Adverse
Effect.
|
| (b) |
The
Company shall (upon the reasonable request of the Facility Agent) supply
the Facility Agent with copies of all such insurance policies or
certificates of insurance in respect thereof or (in the absence of the
same) such other evidence of the existence of such policies as may be
reasonably acceptable to the Facility
Agent
|
|
24.6
|
Intellectual
Property
|
Each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall):
| (a) |
take
all necessary action to safeguard and maintain its rights, present and
future, in or relating to all Intellectual Property Rights owned, used or
exploited by it and which are material to the Group Business (including,
without limitation, paying all applicable renewal fees, licence fees and
other outgoings) save where a failure to do so could not reasonably be
expected to have a Material Adverse Effect;
and
|
| (b) |
notify
the Facility Agent promptly of any infringement or suspected infringement
or any challenge to the validity of any of the present or future
Intellectual Property Rights owned, used or exploited by it and which are
material to the Group Business which may come to its notice and it will
supply the Facility Agent with all information in its possession relating
thereto if the same could reasonably be expected to have a Material
Adverse Effect and take all necessary steps (including, without
limitation, the institution of legal proceedings) to prevent third parties
infringing such Intellectual Property Rights to the extent that failure to
do so could reasonably be expected to have a Material Adverse
Effect.
|
|
24.7
|
Ranking
of Claims
|
Subject
to the Reservations, the Parent and each Obligor shall ensure that at all times
the claims of the Finance Parties against it under the Finance Documents to
which it is a party rank at least pari passu with the claims of
all its unsecured, unsubordinated creditors save those whose claims are
preferred by any bankruptcy, insolvency, liquidation or similar laws of general
application.
|
24.8
|
Pay
Taxes
|
Each
Obligor shall procure and the Company shall procure that each member of the Bank
Group shall ensure that, at all times, there are no material claims or
liabilities which are asserted against it in respect of tax, save to the extent
the relevant Obligor or in the case of any other member of the Bank Group, the
Company (as the case may be) can demonstrate that the same are being contested
in good faith on the basis of appropriate professional advice and that proper
reserves have been established therefor to the extent required by applicable
generally accepted accounting principles.
|
24.9
|
Hedging
|
The
Company shall (or shall procure that the Parent shall):
| (a) |
enter
into and maintain hedging arrangements with Hedge Counterparties, by way
of interest rate swap transaction, basis swap, forward rate transaction,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency
rate swap transaction, currency option or any similar derivative
transaction, or any combination of the foregoing, for the purpose of
limiting the Bank Group’s exposure to adverse movements in interest rates
or foreign exchange in relation to the Facilities, the Bridge Facility (or
the Alternative Bridge Facility, as the case may be), the New High Yield
Notes (if applicable) and the Additional High Yield Notes as
follows:
|
| (i) |
interest
rate hedging (or fixed rate debt, for which purposes, outstanding advances
under the Bridge Facility shall be deemed to constitute fixed rate debt
prior to the issuance of Exchange Notes or the issuance of the New High
Yield Notes) required to ensure that interest is payable at fixed rates on
not less than 66⅔% of the combined aggregate principal amount outstanding
as at the Merger Closing Date, under the Facilities and the Bridge
Facility (or the Alternative Bridge Facility, as the case may be) (or, if
applicable, the New High Yield Notes and the Additional High Yield Notes),
for a period of not less than 3 years from the Merger Closing Date
(provided that for this purpose the principal amount of any fixed rate
Existing High Yield Notes, fixed rate Additional High Yield Notes and any
fixed rate New High Yield Notes shall be included in the calculation of
such minimum hedging requirement); and
|
||
| (ii) |
currency rate
hedging in respect of 100% of the aggregate principal amount of
the Facilities which are denominated in euros or Dollars (if
applicable) for a period of not less than 3 years from the Merger Closing
Date;
|
| (iii) |
currency
rate hedging in respect of 100% of interest payable in euros and Dollars
under the Facilities (if applicable), for a period of not less than 3
years from the Merger Closing Date;
|
||
| (iv) |
currency
rate hedging in respect of 100% of the coupon payable in euros and Dollars
under the New High Yield Notes (if applicable), for a period up to the
applicable first call date in respect of such New High Yield Notes;
and
|
||
| (v) | currency rate hedging in respect of 100% of the coupon payable in euros andDollars under the Additional High Yield Notes (if applicable), for a period upto the applicable first call date in respect of such Additional High Yield Notes, |
in each
case within 6 months of the Merger Closing Date other than:
|
(1)
|
in
the case of the hedging arrangements required to be entered into under
sub-paragraph (a)(i) above, those hedging arrangements relating to
the A1 Facility and the B1 Facility which shall be required to be
implemented within 6 months of the Baseball Effective
Date;
|
||
|
(2)
|
in
the case of the hedging arrangements required to be entered into under
sub-paragraphs (a)(ii) and (a)(iii) above, those hedging arrangements
relating to the B6 Facility, which shall be required to be implemented
within 3 months of first Utilisation of the B6 Facility;
and
|
||
|
(3)
|
in
the case of the hedging arrangements required to be entered into under
sub-paragraphs (a)(iv) and (a)(v) above, those hedging arrangements
relating to the New High Yield Notes or Additional High Yield
Notes, which shall be required to be implemented within 6 months of the
date of issuance of such New High Yield Notes or Additional High Yield
Notes;
|
| (b) |
within
6 months of the date of any High Yield Refinancing, enter into and
maintain hedging arrangements with Hedge Counterparties for the purpose of
limiting the Bank Group’s exposure to adverse movements in interest rates
or foreign exchange in relation to such High Yield
Refinancing for the relevant remaining period specified in the
Existing NTL Senior Credit Facilities Agreement to the extent that the
Company would have been obliged to enter into hedging arrangements in
respect of such High Yield Refinancing thereunder (in the case of a
refinancing of Existing High Yield Notes) or for the relevant periods
specified in sub-paragraphs (a)(i), (a)(iv) (in the case of a
refinancing of New High Yield Notes) or (a)(v) (in the case of a
refinancing of Additional High Yield Notes)
above;
|
| (c) |
ensure
that the hedging arrangements required pursuant to this Clause 24.9
are Existing Hedging Agreements or are entered into in the form of
Acceptable Hedging Agreements;
and
|
| (d) |
as
soon as reasonably practicable following request by the Facility Agent
provide the Facility Agent with certified true copies of each such Hedging
Agreement entered
into,
|
provided
that the Company shall not be in breach of this Clause 24.9 if the Company
fails to enter into the hedging arrangements required under paragraphs (a)
and (b) by the relevant times specified in paragraphs (a) and (b) if during
the time between the Original Execution Date and the date on which such hedging
arrangements are required to be implemented:
| (i) |
none
of the Lenders or their Affiliates is willing to enter into Hedging
Agreements to effect the hedging arrangements required by
paragraphs (a) or (b), as the case may be; or
|
||
| (ii) |
where a Lender or
its Affiliate is willing to enter into such hedging arrangements, the
terms of such hedging arrangements are, in the reasonable opinion of the
Administrative Agent and the Mandated Lead Arrangers and having regard to
the creditworthiness of the Company and current market conditions,
considered to be unreasonable, or where in the opinion of the
Administrative Agent and the Mandated Lead Arrangers, acting reasonably,
such hedging arrangements would cause material adverse tax-related
implications for any member of the
Group.
|
|
24.10
|
Pension
Plans
|
| (a) |
The
Company shall use reasonable endeavours to ensure that all pension plans
maintained and operated by it or any member of the Bank Group, generally
for the benefit of employees of any member of the Bank Group are
maintained and operated and have been valued by an actuary appointed by
the Company in accordance with all applicable laws from time to time and
that the employer contributions are assessed and paid in all material
respects in accordance with the governing provisions of such schemes and
all laws applicable thereto, in each case, save to the extent that any
failure to do so could not reasonably be expected to have a Material
Adverse
Effect.
|
Without
prejudice to the generality of Clause 24.10(a):
| (b) |
The
Company shall ensure that, except for the NTL Pension Plan, the NTL 1999
Pension Scheme, Cablevision Pension Scheme and Workplace Technology
Pension schemes (the “UK
DB Schemes”), each UK Pension Scheme is, or has at any time been, a
money purchase scheme as defined in s181 of the Pension Schemes Act 1993)
and no member of the Group is, for the purposes of either s38 or s43 of
the Pensions Xxx 0000, connected with or an associate of any employer of
an occupational pension scheme which is not a money purchase
scheme.
|
| (c) |
Each
Participating Employer shall ensure that, in relation to each UK Pension
Scheme, no circumstance or event occurs and no action or omission is taken
which has or is reasonably likely to have a Material Adverse Effect
(including, without limitation, any Participating Employer ceasing to
employ any member of such a pension scheme or, in the case of any UK DB
Scheme, the issue of a Financial Support Direction or Contribution Notice
to any member of the
Group).
|
| (d) |
The
Company shall promptly notify the Facility Agent of any change in the rate
of contributions to any UK DB Schemes, paid or recommended to be paid
(whether by the scheme actuary or otherwise) or required by law or
otherwise which might reasonably be expected to have a Material Adverse
Effect.
|
| (e) |
Each
Obligor shall immediately notify the Facility Agent of any investigation
or proposed investigation by the Pensions Regulator which it has been
informed may lead to the issue of a Financial Support Direction or a
Contribution Notice to it or any member of the Bank
Group.
|
| (f) |
Each
Obligor shall immediately notify the Facility Agent if it receives a
Financial Support Direction or a Contribution Notice from the Pensions
Regulator.
|
|
24.11
|
Environmental
Matters
|
| (a) |
Each
Obligor shall (and the Company shall procure that each member of the Bank
Group
shall):
|
| (i) |
comply
with all Environmental Laws to which it is subject;
|
||
| (ii) | obtain all Environmental Licences required or desirable in connection with the business it carries on; and |
| (iii) |
comply
with the terms of all such Environmental
Licences,
|
in each
case where failure to do so could reasonably be expected to have a Material
Adverse Effect.
| (b) |
Each
Obligor shall (and the Company shall procure that each member of the Bank
Group shall) promptly notify the Facility Agent of any Environmental Claim
(to the best of such Obligor’s or member of the Bank Group’s knowledge and
belief) pending or threatened against it which, if substantiated, could
reasonably be expected to have a Material Adverse
Effect.
|
| (c) |
No
Obligor shall (and the Company shall procure that no member of the Bank
Group shall) permit or allow to occur any discharge, release, leak,
migration or other escape of any Hazardous Substance into the Environment
on, under or from any property owned, leased, occupied or controlled by
it, where such discharge, release, leak, migration or escape could
reasonably be expected to have a Material Adverse
Effect.
|
|
24.12
|
Further
Assurance
|
| (a) |
The
Parent and each Obligor shall (and the Company shall procure that each
member of the Bank Group shall) at its own expense, promptly take all such
reasonable action as the Facility Agent or the Security Trustee may
require for the purpose of complying with the provisions of
paragraph (b) and for the registration or filing of any Security
Documents delivered pursuant thereto with all appropriate authorities to
the extent necessary for the purposes of perfecting the Security created
thereunder.
|
| (b) |
The
Company
shall:
|
| (i) |
subject
to the proviso below and except as otherwise provided in this
Clause 24.12, procure that the 80% Security Test is satisfied, at the
end of each financial year during the term of the Facilities where such
percentage is calculated by reference to the annual financial information
relating to the Bank Group most recently delivered pursuant to
Clause 22.1 (Financial Statements)
and certified in the relevant Compliance Certificate accompanying the
same;
|
||
| (ii) | procure that in relation to any member of the Bank Group which becomes a Borrower for the purposes of this Agreement, the immediate Holding Company of such Borrower shall also become a Guarantor hereunder; and |
| (iii) |
procure
that each Obligor which is or becomes a party to this Agreement in such
capacity under sub-paragraph (i) above shall have delivered to the
Security Trustee, one or more Security Documents granting security over
all or substantially all of its assets other than any shares in,
receivables owed by or any other interest in any Bank Group Excluded
Subsidiary, Project Company or Joint Venture or any other asset which is
of a type excluded from existing corresponding Security Documents, or
which the Security Trustee agrees may be excluded from the Security
granted under the Security Documents (provided that the Security Trustee
shall not agree to exclude any asset of an Obligor from the Security where
the net book value of such asset exceeds £10 million (or its equivalent in
other currencies) without the prior consent of an Instructing Group (not
to be unreasonably withheld or
delayed)).
|
| (c) |
A
breach of sub-paragraph (b) shall not constitute a Default
if:
|
| (i) |
one
or more members of the Bank Group become Obligors in accordance with
Clause 26.1 (Acceding Borrowers) and
Clause 26.2 (Acceding
Guarantors) within
5 Business Days of the delivery of a Compliance Certificate by the
Borrower demonstrating that the 80% Security Test is not satisfied;
and
|
||
| (ii) |
the Facility Agent
(acting reasonably) is satisfied that the 80% Security Test would have
been satisfied on the relevant Quarter Date if such Compliance Certificate
had been prepared on the basis that such members of the Bank Group had
been Obligors as at that Quarter
Date.
|
| (d) |
In
relation to any provision of this Agreement which requires the Obligors or
any member of the Bank Group to deliver a Security Document for the
purposes of granting any guarantee or Security for the benefit of the
Finance Parties, the Security Trustee agrees to execute as soon as
reasonably practicable, any such guarantee or Security Document which is
presented to it for
execution.
|
| (e) |
At
any time after an Event of Default has occurred and whilst such Event of
Default is continuing, each Obligor shall, at its own expense, take any
and all action as the Security Trustee may deem necessary for the purposes
of perfecting or otherwise protecting the Lenders’ interests in the
Security constituted by the Security
Documents.
|
|
24.13
|
Centre
of Main Interests
|
No
Obligor incorporated or otherwise existing under the laws of England & Wales
shall (and the Company shall procure that no other member of the Bank Group
incorporated or otherwise existing under the laws of England & Wales shall),
without the prior written consent of an Instructing Group, cause or allow its
Centre of Main Interests to change to a country other than England.
|
24.14
|
Group
Structure Chart
|
If there
is a material change or inaccuracy in the corporate structure of the Bank Group
or any Holding Companies of the Company from that set out in the Group Structure
Chart most recently delivered to the Facility Agent, including upon consummation
of the Merger, the Company shall deliver or procure that there is delivered to
the Facility Agent, as soon as practicable upon becoming available, an updated
Group Structure Chart containing information sufficient to evidence the matters
set out in paragraphs (a) to (d) of Clause 21.19 (Structure) and showing such
material change or correcting such inaccuracy.
|
24.15
|
Contributions
to the Bank Group
|
The
Company shall procure that any monies which are at any time contributed by any
member of the Group to any member of the Bank Group shall be contributed by way
of Subordinated Funding, by way of an investment through capital contribution or
a subscription or issuance of securities or convertible unsecured loan stock in
the relevant member of the Bank Group.
|
24.16
|
“Know
your client” checks
|
| (a) |
Each
Obligor shall promptly upon the request of the Facility Agent or any
Lender and each Lender shall promptly upon the request of the Facility
Agent supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Facility Agent (for itself or
on behalf of any Lender) or any Lender (for itself or on behalf of any
prospective Transferee in order for the Facility Agent, such Lender or any
prospective Transferee to carry out and be satisfied with the results of
all necessary “know your client” or other applicable anti-money laundering
checks in relation to the identity of any person that it is required to
carry out in relation to the transactions contemplated in the Finance
Documents.
|
| (b) |
The
Company shall, by not less than 3 Business Days written notice to the
Facility Agent, notify the Facility Agent (which shall promptly notify the
Lenders) of its intention to request that one of its wholly-owned
Subsidiaries becomes an Acceding Obligor pursuant to Clause 26 (Acceding Group
Companies) (provided that no such notice shall be required to be
given in respect of any Obligor where any such person is required or
intends to accede to this Agreement pursuant to Clause 3.4 (Baseball Conditions
Subsequent).
|
| (c) |
Following
the giving of any notice pursuant to paragraph (b) above, the Company
shall promptly upon the request of the Facility Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as
is reasonably requested by the Facility Agent (for itself or on behalf of
any Lender) or any Lender (for itself or on behalf of any prospective
Transferee to carry out and be satisfied with the results of all necessary
“know your client” or other applicable anti-money laundering checks in
relation to the identity of any person that it is required to carry out in
relation to the accession of such Acceding Borrower or Acceding Guarantor
to this
Agreement.
|
|
24.17
|
Change
in Auditors
|
The
Obligors shall ensure that its auditors are (and in the case of the Company, the
Bank Group’s auditors are) any one of the Permitted Auditors provided that in
the event of any change in such auditors (other than in connection with the
Merger), the relevant Obligor (or the Company, in the case of any change to the
Bank Group’s auditors) shall promptly notify the Facility Agent of such
change.
|
24.18
|
Syndication
|
| (a) |
Each
of the Obligors shall (and the Company shall procure that each member of
the Bank Group shall) co-operate with and assist the Mandated Lead
Arrangers in connection with the primary syndication of the Facilities
(other than the B5 Facility and the B6 Facility) in a manner consistent
with normal market practice including (but not limited to)
by:
|
| (i) |
providing
such financial and other information relating to the Group as the Mandated
Lead Arrangers, acting reasonably, may deem necessary to achieve
Successful Syndication provided that no such information shall be required
to be so provided to the extent that the same would require a filing to be
made by any Obligor with the SEC as a result thereof;
|
||
| (ii) | in line with normal market practice, assisting the Mandated Lead Arrangers in the preparation of any supplemental materials to the Information Memoranda; |
| (iii) |
allow
attendance by senior management of the Ultimate Parent and the Company at
one or more bank presentations or meeting with potential lenders at such
times and places as the Mandated Lead Arrangers may agree with the
Ultimate Parent and the Company; and
|
||
| (iv) | use reasonable efforts to ensure that the syndication efforts benefit from the Group’s existing lending relationships, |
provided
that no Obligor shall be required to provide any information where, having
regard to the relevance of that information to the achievement of Successful
Syndication, it would be unreasonable to do so.
| (b) |
Without
prejudice to the provisions of paragraph (a), no Obligor shall be
required to take any action or to deliver any information that would
conflict with any applicable Law to which it is bound or other applicable
regulation including the Takeover Code, US Federal securities laws, the
laws of Delaware, or to provide any disclosures that would require a
filing with the U.S. Securities and Exchange Commission, or cause it or
any of its Subsidiaries to breach any applicable confidentiality
undertaking to which it is bound or which might prejudice its entitlement
to or retention of legal privilege in any document. In the
event that the Mandated Lead Arrangers request any information to be
disclosed or action to be taken which is subject to a confidentiality
undertaking, the Parent or the relevant Obligor as the case may be, shall
use its reasonable endeavours to obtain the consent of the relevant
beneficiary of such confidentiality undertaking to such action in order to
allow such disclosure or action to be
taken.
|
|
24.19
|
Assets
|
Each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall) maintain and preserve all of its assets that are necessary in the conduct
of its business as it is conducted from time to time, in good working order and
condition subject to ordinary wear and tear where any failure to do so could be
reasonably expected to have a Material Adverse Effect.
|
24.20
|
ERISA
|
| (a) |
As
soon as possible and, in any event, within 20 days after a Borrower or any
Obligor knows or has reason to know of the occurrence of any of the events
specified in paragraph (b) of this Clause 24.20, such Borrower
or such Obligor will deliver to the Facility Agent in sufficient copies
for each Lender a certificate of the chief financial officer of such
Borrower or such Obligor setting out full details as to such occurrence
and the action, if any, that the relevant member of the Group or ERISA
Affiliate is required or proposes to take, together with any notices
required or proposed to be given or filed by such member of the Group, the
Plan administrator or such ERISA Affiliate to or with any government
agency, or a Plan participant and any notices received by such member of
the Group or ERISA Affiliate from any government agency, or a Plan
participant with respect to
it.
|
| (b) |
The
events referred to in paragraph (a) of this Clause 24.20
are:
|
| (i) |
any
contribution required to be made with respect to a Plan or Foreign Pension
Plan is not made before or within 30 days following the time limit
therefor;
|
||
| (ii) |
any member of the
Group or any ERISA Affiliate incurs or is reasonably expected to incur any
material liability with respect to a Plan under section 4975 or 4980 of
the Code or section 409, 502(i) or 502(l) of ERISA or with respect to a
group health plan (as defined in section 607(1) of ERISA or section
4980B(g)(2) of the Code) maintained by a Borrower or any member of the
Group under section 4980B of the Code;
and
|
| (iii) |
any
member of the Group incurs or reasonably expects to incur any material
liability pursuant to any employee welfare benefit plan (as defined in
section 3(1) of ERISA) that provides benefits to retired employees or
other former employees (other than as required by section 601 of
ERISA).
|
| (c) |
Subject
to all applicable data protection laws, the Ultimate Parent shall procure
that each member of the Group will deliver to the Facility Agent in
sufficient copies for each of the
Lenders:
|
|
|
|
| (i) |
a
complete copy of the annual report (on Internal Revenue Service Form
5500-series (including, to the extent required, the related financial and
actuarial statements and opinions and other supporting statements,
certifications, schedules and information)) of each Plan required to be
filed with the Internal Revenue Service and/or the Department of
Labor;
|
||
| (ii) | copies of annual reports and any records, documents or other information required to be furnished by such member of the Group or any ERISA Affiliate with respect to any Plan to any government agency; and |
| (iii) |
any
material notices received by a member of the Group or any ERISA Affiliate
with respect to any Plan or Foreign Pension Plan, in the case of each of
(i), (ii), and (iii), no later than 30 days (or 10 days in the case of
this paragraph (iii)) after the date such annual report has been
filed with the Internal Revenue Service and/or the Department of Labor or
such records, documents and/or information has been furnished to any other
government agency or such notice has been received by such member of the
Group or ERISA Affiliate, as applicable.
|
||
| (iv) |
The Ultimate Parent
shall procure that each member of the Group shall ensure that all Foreign
Pension Plans administered by them or into which they make payments,
obtain or retain (as applicable) registered status under and as required
by applicable law and are administered in a timely manner in all respects
in compliance with all applicable laws, in the case of each of the
foregoing, except where the failure to do any of the foregoing will not
have a Material Adverse
Effect.
|
|
24.21
|
Steps
Paper
|
The
Ultimate Parent shall (and it shall procure that each member of the Group shall,
as applicable) implement each of the steps required for the consummation of the
Merger and reorganisation of the Group in accordance with the Steps Paper and in
particular, without limitation to the foregoing provision:
| (a) |
on
the Merger Closing Date, to implement each of Steps 1 and 2 set out in the
page headed “Combination
of NTL and Telewest” of the Steps Paper culminating in the
structure set out on the page headed “Interim Structure After Step
2;
|
| (b) |
to
implement each of the Steps 3 to 10 set out on the pages headed “Post-Combination Restructuring
- Second Alternative (Structure 2)” of the Steps Paper, culminating
in the structure set out on the page headed “Second Alternative (Structure
2) – Final Structure”, such that all of those steps are completed
on the Structuring
Date;
|
| (c) |
if
the Baseball Effective Date occurs prior to the Structuring Date (and Step
V1 and V2 described below can be implemented prior to the Structuring
Date), to implement each of the Steps V1 and V2 on the page headed “Acquisition of Virgin Mobile
Pre-Restructuring”, culminating in the structure set out on the
page headed “After
Virgin Mobile Pre-Restructuring”, such that both of those steps are
completed on the same Business Day, on a date falling not more than 15
days after the Baseball Effective Date;
and
|
| (d) |
if
the Baseball Effective Date occurs after the Structuring Date (or Steps V1
and V2 referred to above cannot be implemented before the Structuring
Date) and the provisions of paragraph (b) above have been
implemented, to implement each of the Steps 0a and 0b on the page headed
“Structure 2
Virgin Mobile
Acquisition”, culminating in the structure set out on the page
headed “Structure 2
Post-Virgin
Mobile Acquisition”, such that both of those steps are completed on
the same Business Day, on a date falling not more than 15 days after the
Baseball Effective
Date,
|
in each
case, with such amendments, variations or modifications as the Ultimate Parent
shall deem necessary, provided that no such amendment, variation or modification
could reasonably be expected to be materially adverse to the interests of the
Lenders.
|
24.22
|
Baseball
Scheme Undertakings
|
Other
than with the consent of a Baseball Instructing Group, acting reasonably (which
consent shall be deemed to have been given if not given or refused within 48
hours of request) Baseball Cash Bidco shall comply and the Company shall procure
that Baseball Stock Bidco shall comply, with each of the following
covenants:
| (a) |
it
shall ensure that the Baseball Scheme Circular is on substantially the
terms set out in the Baseball Press Release, other than with respect to
any amendments which could not reasonably be expected to be materially
prejudicial to the interests of the
Lenders;
|
| (b) |
it
shall not make any amendments to the Baseball Implementation Agreement,
other than with respect to any amendments which could not reasonably be
expected to be materially prejudicial to the interests of the
Lenders;
|
| (c) |
it
shall ensure that the Baseball Scheme Circular is posted within 28 days of
issuance of the Baseball Press Release, or if later, as soon as
practicable after the date on which the Court convenes a meeting of the
shareholders of Baseball to consider the Baseball
Scheme;
|
| (d) |
it
shall comply with all applicable laws and regulations (including, without
limitation, the Act, the Financial Services and Markets Acx 0000, the
Takeover Code (subject to any applicable waivers by the Takeover Panel)
and the Listing Rules of the Financial Services Authority (as
applicable);
|
| (e) |
it
shall keep the Facility Agent informed of the material developments of the
Baseball Scheme and the Baseball Acquisition and notify the Facility Agent
of any circumstances which may lead to withdrawal of the Baseball Scheme
or the Baseball
Acquisition;
|
| (f) |
it
shall provide the Facility Agent with any material updated financial
information on the Baseball Group, and such other information relevant to
the Baseball Scheme and the Baseball Acquisition as the Facility Agent may
reasonably request (including without limitation, copies of any press or
public announcements and any material documents or statements issued by
the Takeover Panel or any regulatory authority in connection with the
Baseball Scheme or the Baseball
Acquisition);
|
| (g) |
it
shall not increase the cash price per share under the cash only option at
which the Baseball Acquisition is
being made;
|
| (h) |
it
shall not waive or amend any condition to the Baseball Scheme as set out
in the Baseball Scheme Documents, except in any case where such amendment
or
waiver:
|
| (i) |
could
not reasonably be expected to be materially prejudicial to
the interests of the Lenders; or
|
||
| (ii) | is required by the Takeover Panel, the Takeover Code, the rules or requirements of any stock exchange with jurisdiction over Baseball Cash Bidco or any other applicable law or regulation; |
| (i) |
it
shall not make any public statements relating to the financing of the
Baseball Acquisition unless required to do so by the Takeover Code or
Takeover Panel, any applicable stock exchange with jurisdiction over
Baseball Cash Bidco or any applicable governmental or other regulatory
authority;
|
| (j) |
it
shall ensure that neither of the Baseball Bidcos, nor (using all
reasonable endeavours) any person Acting in Concert (as defined in the
Takeover Code) with them, shall be obliged to make an offer to
shareholders of Baseball under Rule 9 of the Takeover
Code; and
|
| (k) |
it
shall procure that as soon as reasonably practicable, after the Baseball
Effective Date, Baseball is delisted and re-registered as a private
company.
|
|
25.1
|
Content
Transaction
|
| (a) |
Notwithstanding
any other provisions of this Agreement, no Content Transaction shall be
restricted by (nor deemed to constitute a utilisation of any of the
permitted exceptions to) any provision of this Agreement, neither shall
the implementation of any Content Transaction constitute a breach of any
provision of any Finance Document, provided
that:
|
| (i) |
the
cash proceeds of any Content Transaction are applied in accordance with
Clause 12 (Mandatory Prepayment and
Cancellation);
|
||
| (ii) | after giving pro forma effect for such Content Transaction, the Group and the Bank Group continue to be in compliance with Clause 23.2 (Ratios); and |
| (iii) |
at
the time of completion of such Content Transaction, no Event of Default
has occurred and is continuing and no Event of Default would occur as a
result of such Content
Transaction.
|
| (b) |
Any
Joint Venture established pursuant to a Content Transaction shall
thereafter not be subject to any restrictions under this
Agreement.
|
|
25.2
|
Negative
Pledge
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, create or
permit to subsist any Encumbrance over all or any of its present or future
revenues or assets other than an Encumbrance:
| (a) |
which
is an Existing Encumbrance set out
in:
|
| (i) |
Part
1A of Schedule 10 (Existing Encumbrances)
provided that such Encumbrance is released within 10 Business Days of the
Merger Closing Date; or
|
||
| (ii) | Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2; |
| (b) |
which
arises by operation of Law or by a contract having a similar effect or
under an escrow arrangement required by a trading counterparty of any
member of the Bank Group and in each case arising or entered into the
ordinary course of business of the relevant member of the Bank
Group;
|
| (c) |
which
is created pursuant to any of the Finance Documents (including, for the
purposes of securing any Alternative Baseball Financing) and any Bridge
Finance
Documents;
|
| (d) |
arising
from any Finance Leases, sale and leaseback arrangements or Vendor
Financing Arrangements permitted to be incurred pursuant to
Clause 25.4 (Financial
Indebtedness);
|
| (e) |
which
arises in respect of any right of set-off, netting arrangement, title
transfer or title retention arrangements
which:
|
| (i) |
arises
in the ordinary course of trading and/or by operation of
Law;
|
||
| (ii) |
is entered into by
any member of the Bank Group in the normal course of its banking
arrangements for the purpose of netting debit and credit balances on bank
accounts of members of the Bank Group operated on a net balance
basis;
|
| (iii) |
arises
in respect of netting or set off arrangements contained in any Hedging
Agreement or other contract permitted under Clause 25.12 (Limitations on
Hedging);
|
||
| (iv) |
is entered into by
any member of the Bank Group on terms which are generally no worse than
the counterparty’s standard or usual terms and entered into in the
ordinary course of business of the relevant member of the Bank Group;
or
|
| (v) |
which
is a retention of title arrangement with respect to customer premises
equipment in favour of a supplier (or its Affiliate); provided that the
title is only retained to individual items of customer premises equipment
in respect of which the purchase price has not been paid in
full;
|
| (f) |
which
arises in respect of any judgment, award or order or any tax liability for
which an appeal or proceedings for review are being diligently pursued in
good faith, provided that the affected member of the Bank Group shall have
or will establish such reserves as may be required under applicable
generally accepted accounting principles in respect of such judgment,
award, order or tax
liability;
|
| (g) |
over
or affecting any asset acquired by a member of the Bank Group after the
Original Execution Date and subject to which such asset is acquired,
if:
|
| (i) |
such
Encumbrance was not created in contemplation of the acquisition of such
asset by a member of the Bank Group; and
|
||
| (ii) | the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time; |
| (h) |
over
or affecting any asset of any company which becomes a member of the Bank
Group after the Original Execution Date, where such Encumbrance is created
prior to the date on which such company becomes a member of the Bank
Group,
if:
|
| (i) |
such
Encumbrance was not created in contemplation of the acquisition of such
company; and
|
||
| (ii) | to the extent not repaid by close of business on the date upon which such company became a member of the Bank Group, the Financial Indebtedness secured by such Encumbrance at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness); |
| (i) |
constituted
by a rent deposit deed entered into on arm’s length commercial terms and
in the ordinary course of business securing the obligations of a member of
the Bank Group in relation to property leased to a member of the Bank
Group;
|
| (j) |
constituted
by an arrangement referred to in paragraph (d) of the definition of
Financial
Indebtedness;
|
| (k) |
which
is granted over the shares of, Indebtedness owed by or other interests
held in, or over the assets (including, without limitation, present or
future revenues), attributable to a Project Company, a Bank Group Excluded
Subsidiary or a Permitted Joint
Venture;
|
| (l) |
over
cash deposited as security for the obligations of a member of the Bank
Group in respect of a performance bond, guarantee, standby letter of
credit or similar facility entered into in the ordinary course of business
of the Bank
Group;
|
| (m) |
which
is created by any member of the Bank Group in substitution for any
Existing Encumbrance referred to in paragraph (a)(ii) above of this
Clause 25.2, provided that the principal amount secured thereby may
not be increased unless any Encumbrance in respect of such increased
amount would be permitted under another paragraph of this
Clause 25.2;
|
| (n) |
securing
the Existing Baseball Facilities, provided that such Encumbrance is
released within 10 Business Days of the Baseball Effective Date;
or
|
| (o) |
securing
Financial Indebtedness the principal amount of which (when aggregated with
the principal amount of any other Financial Indebtedness which has the
benefit of an Encumbrance other than as permitted pursuant to
paragraphs (a) to (n) above) does not exceed £330 million (or its
equivalent in other
currencies):
|
| (i) |
of
which up to £275 million (or its equivalent in other currencies) may be
secured on assets not subject to the Security; or
|
||
| (ii) | of which up to £50 million may be secured on a second ranking basis over assets subject to the Security, provided that such second ranking security shall be granted on terms where the rights of the relevant mortgagee, chargee or other beneficiary of such security in respect of any payment will be subordinated to the rights of the Finance Parties under the HYD Intercreditor Agreement or any other intercreditor arrangement which is either: |
|
(A)
|
on
terms satisfactory to the Facility Agent (acting on the instructions of an
Instructing Group); or
|
||
|
(B)
|
on
terms comparable to the Existing Telewest Second Lien Credit Facility
Agreement and related intercreditor
agreement,
|
provided
that in either case, each of the Finance Parties agrees to execute such
intercreditor agreement as soon as practicable following request from the
Company.
For the
avoidance of doubt, no Encumbrance may be granted by any member of the Bank
Group to secure the obligations under or in connection with the C Facility, the
New High Yield Notes, the Additional High Yield Notes or any High Yield
Refinancing that refinances the New High Yield Notes or the Additional High
Yield Notes.
|
25.3
|
Loans
and Guarantees
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, grant any
loan or credit or give any guarantee in any such case in respect of Financial
Indebtedness, other than:
| (a) |
any
extension of trade credit or guarantees, bonds or indemnities granted in
the ordinary course of business on usual and customary
terms;
|
| (b) |
any
credit given by a member of the Bank Group to another member of the Bank
Group which arises by reason of cash-pooling, set-off or other cash
management arrangement of the Bank
Group;
|
| (c) |
the
Existing Loans provided that the aggregate principal amount outstanding
thereunder may not be increased from that existing at the Original
Execution Date in reliance on this paragraph (c) (except with respect
to accrual or capitalisation of
interest);
|
| (d) |
any
loans or credit
granted:
|
| (i) |
by a member of the Bank Group which is not an Obligor to an Obligor
by way of Subordinated Funding;
|
||
| (ii) | by one Obligor to another Obligor; |
| (iii) |
by
a member of the Bank Group which is not an Obligor to any other member of
the Bank Group which is not an Obligor; or
|
||
| (iv) | by a member of the Bank Group to the relevant member of the Group for the purposes of funding drawings available under the undrawn portion of any Existing UKTV Group Loan Stock of up to £50 million in aggregate; |
| (v) |
in
accordance with Clause 25.9 (Joint
Ventures);
|
||
| (vi) | by the US Borrower pursuant to the Notes; |
| (e) |
any
loans made by any member of the Bank Group to its employees
either:
|
| (i) |
in
the ordinary course of its employees’ employment; or
|
||
| (ii) | to fund the exercise of share options or the purchase of capital stock by its employees, directors, officers or consultants of the Group, |
provided
that the aggregate principal amount of all such loans shall not at any time
exceed £10 million (or its equivalent in other currencies);
| (f) |
any
loan made by a member of the Bank Group pursuant to either an Asset
Passthrough or a Funding
Passthrough;
|
| (g) |
any
loan made by a member of the Bank Group to a member of the Group, where
the proceeds of such loan are, or are to be (whether directly or
indirectly)
used:
|
| (i) |
to
make payments to the High Yield Trustee in respect of High Yield Trustee
Amounts (as such terms are defined in the HYD Intercreditor Agreement) in
respect of the Existing High Yield Notes;
|
||
| (ii) |
to make payments to
the High Yield Trustee in respect of High Yield Trustee Amounts (as such
terms are defined in the HYD Intercreditor Agreement) in respect of the
New High Yield
Notes;
|
| (iii) |
to
make equivalent payments to those specified in paragraphs (i) and
(ii) above in respect of any High Yield Refinancings or in respect of any
Additional High Yield Notes;
|
||
| (iv) | provided that no Event of Default has occurred and is continuing or is likely to occur as a result thereof to fund Permitted Payments; or |
| (v) |
at
any time after the occurrence of an Event of Default, to fund Permitted
Payments to the extent not prohibited by the HYD Intercreditor Agreement,
the Group Intercreditor Agreement or any other applicable intercreditor
agreement;
|
| (h) |
credit
granted by any member of the Bank Group to a member of the Group, where
the Indebtedness outstanding thereunder relates to Intra-Group Services
provided that
where such credit relates to services falling within
sub-paragraphs (c)(i) and (c)(iii) of the definition of Intra-Group
Services the settlement of any such credit estimated by the Borrower to be
owed by members of the Group which are not Obligors shall take place no
later than the first Business Day falling 60 days after the end of each
Financial Quarter provided that any such settlement may occur by way of
set-off and further provided that any overpayment or underpayment arising
as a result of the settlement of all such credit may be returned to the
overpaying party or paid by the underpaying party (and any credit or
Financial Indebtedness arising as a result of such overpayment or
underpayment pending repayment to the overpaying party or payment by the
underpaying party is hereby
permitted);
|
| (i) |
any
guarantee given in respect of membership interests in any company limited
by guarantee where the acquisition of such membership interest is
permitted under Clause 25.13 (Acquisitions and
Investments);
|
| (j) |
any
guarantee given by a member of the Bank Group in respect of or constituted
by any Financial Indebtedness permitted under Clause 25.4 (Financial Indebtedness)
or Clause 25.10 Transactions with
Affiliates) or other obligation not restricted by the terms of the
Finance Documents, of another member of the Bank
Group;
|
| (k) |
any
guarantees arising under the Finance Documents (including any guarantees
given in respect of an Alternative Baseball Financing) and any guarantee
arising under the Bridge Finance
Documents;
|
| (l) |
any
customary title guarantee given in connection with the assignment of
leases where such assignment is permitted under Clause 25.6 (Disposals);
|
| (m) |
any
guarantees or similar undertakings granted by any member of the Bank Group
in favour of the Inland Revenue in respect of any obligations of Virgin
Media (UK) Group, Inc. (formerly known as NTL (UK) Group, Inc.) in respect
of UK tax in order to facilitate the winding up of Virgin Media (UK)
Group, Inc. (formerly known as NTL (UK) Group, Inc.) provided that the
Facility Agent shall have first received confirmation from the Company
that based on discussions with the Inland Revenue and the Company’s
reasonable assumptions, the Company does not believe that the liability
under such guarantee will exceed £15 million (such confirmation to be
supported by a letter from the Company’s auditors for the time being,
confirming that based on the Company’s calculations of such tax liability
the Company’s confirmation is a reasonable assessment of such tax
liability);
|
| (n) |
any
loan granted as a result of a Subscriber being allowed terms, in the
ordinary course of trade, whereby it does not have to pay for the services
provided to it for a period after the provision of such
services;
|
| (o) |
any
loans or guarantees expressly contemplated under the Steps
Paper;
|
| (p) |
a
loan made or a credit granted to a Joint Venture to the extent permitted
under paragraph (d) of Clause 25.9 (Joint
Ventures);
|
| (q) |
any
loans made under the terms of the Screenshop Intra-Group Loan
Agreement;
|
| (r) |
the
BBC
Guarantees;
|
| (s) |
in
the event that the Company elects to proceed with an Option B Alternative
Bridge Facility Refinancing, any loan made by the Company to the Parent
from the proceeds of drawdown under the C Facility, to enable the Parent
to repay, together with the proceeds of the applicable New High Yield
Notes issued by it, all outstandings under the Alternative Bridge Facility
Agreement;
|
| (t) |
liquidity
loans of a type which is customary for asset securitisation programmes or
other receivables factoring transactions, provided in connection with any
asset securitisation programme or receivables factoring transaction
otherwise permitted by Clause 25.6(i) of this Agreement;
and
|
| (u) |
loans
made, credit granted or guarantees given by any member of the Bank Group
not falling within paragraphs (a) to (t) above, in an aggregate
amount not exceeding £85 million (or its equivalent in other
currencies).
|
|
25.4
|
Financial
Indebtedness
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group incur, create
or permit to subsist or have outstanding any Financial Indebtedness or enter
into any agreement or arrangement whereby it is entitled to incur, create or
permit to subsist any Financial Indebtedness other than in either
case:
| (a) |
Financial
Indebtedness arising under or pursuant to the Finance Documents (including
in respect of any outstanding Documentary Credit and arising in respect of
any Alternative Baseball Financing) and under or pursuant to the Bridge
Finance
Documents;
|
| (b) |
Existing
Financial Indebtedness provided that the Existing Credit Facilities shall
be repaid in full immediately upon the making of the first Advance under
this
Agreement;
|
| (c) |
Financial
Indebtedness arising in respect
of:
|
| (i) |
the
Existing High Yield Notes and the subordinated unsecured guarantee given
by the Company in respect thereof;
|
||
| (ii) | the New High Yield Notes and any subordinated unsecured guarantee granted by the Company in respect of such New High Yield Notes provided that the New High Yield Notes and such guarantee will be subject to the provisions of the HYD Intercreditor Agreement; |
| (iii) |
the
Additional High Yield Notes and any subordinated unsecured guarantee
granted by the Company in respect of such Additional High Yield Notes,
provided that the Additional High Yield Notes and such guarantee will be
subject to the provisions of the HYD Intercreditor Agreement or will be
subordinated pursuant to another intercreditor arrangement satisfactory to
the Facility Agent or on terms substantially identical to the HYD
Intercreditor Agreement mutatis mutandis (the
“Supplemental Additional
High Yield Notes Intercreditor Agreement”), provided, that no
Default or Event of Default is outstanding or occurs as a result of the
issuance of the Additional High Yield Notes, and provided further that
the proceeds thereof (after deducting all reasonable fees, commissions,
costs and expenses incurred by any member of the Group in connection with
such raising) are applied as required by Clause 12.5(a)(ii) (Repayment from Debt
Proceeds);
|
||
| (iv) | any High Yield Refinancing and any guarantee given by any member of the Bank Group in respect thereof, provided that such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement or given on subordination terms consistent with those contained in the HYD Intercreditor Agreement; |
| (d) |
Financial
Indebtedness of any member of the Bank Group falling within, and permitted
by Clause 25.3 (Loans and
Guarantees);
|
| (e) |
Financial
Indebtedness arising under any Hedging Agreements permitted under
Clause 25.12 (Limitations on
Hedging);
|
| (f) |
Financial
Indebtedness arising in relation to either an Asset Passthrough or a
Funding
Passthrough;
|
| (g) |
Financial
Indebtedness of any company which became or becomes a member of the Bank
Group after the Original Execution Date, where such Financial Indebtedness
arose prior to the date on which such company became or becomes a member
of the Bank Group;
if:
|
| (i) |
such
Financial Indebtedness was not created in contemplation of the acquisition
of such company;
|
||
| (ii) | the aggregate principal amount of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either (1) does not exceed £85 million (or its equivalent in other currencies) outstanding at any time or (2) to the extent such Financial Indebtedness does exceed £85 million, an amount equal to such excess is repaid promptly thereafter; |
| (h) |
Financial
Indebtedness arising in respect of any guarantee given by the Company or
TCN or any other member of the Bank Group in respect of the relevant
borrower’s obligations under any Parent Debt (“Guaranteed Parent
Debt”), provided
that:
|
| (i) |
the
proceeds of such Guaranteed Parent Debt are contributed into the Bank
Group in accordance with Clause 24.15 (Contributions to the Bank
Group) and applied either (i) towards the Group Business or in a
business whose primary operations are directly related to the Group
Business or (ii) towards the refinancing of any outstanding Indebtedness
of the Bank Group; and
|
||
| (ii) | any such guarantee is given on a subordinated unsecured basis and is subject to the terms of the HYD Intercreditor Agreement, the Group Intercreditor Agreement or any other applicable intercreditor agreement in form satisfactory to an Instructing Group; |
| (i) |
Financial
Indebtedness which is expressly contemplated by the Steps
Paper;
|
| (j) |
Financial
Indebtedness which constitutes Subordinated Funding provided that each
Obligor that is a debtor in respect of Subordinated Funding shall (and the
Borrower shall procure that each member of the Bank Group that is a debtor
in respect of Subordinated Funding shall) procure that the relevant
creditor of such Subordinated Funding, to the extent not already a party
at the relevant time, accedes to the Group Intercreditor Agreement or the
HYD Intercreditor Agreement, as appropriate, in such capacity, upon the
granting of such Subordinated
Funding;
|
| (k) |
Financial
Indebtedness arising under (i) Finance Leases or (ii) Vendor Financing
Arrangements, to the extent that such Finance Leases and/or Vendor
Financing Arrangements (x) comprise Existing Vendor Financing Arrangements
or any refinancing or rollover thereof, or (y) comprise
Finance Leases and/or Vendor Financing Arrangements entered into after the
Merger Closing Date, provided that in the case of clause (x) and (y) the
aggregate principal amount thereof does not at any time exceed £165
million plus the principal amount of such Finance Leases and Vendor
Financing Arrangements outstanding on the Merger Closing Date; and
provided further that, in each case, the relevant lessor or provider of
Vendor Financing Arrangements does not have the benefit of any Encumbrance
other than over the assets the subject of such Vendor Financing
Arrangements and/or Finance
Leases;
|
| (l) |
Financial
Indebtedness relating to deferral of PAYE taxes with the agreement of the
Inland Revenue by any member of the Bank
Group;
|
| (m) |
Financial
Indebtedness arising in respect of Existing Performance Bonds or any
performance bond, guarantee, standby letter of credit or similar facility
entered into by any member of the Bank Group to the extent that cash is
deposited as security for the obligations of such member of the Bank Group
thereunder;
|
| (n) |
Financial
Indebtedness not falling within paragraphs (a) to (m) of any members
of the Bank Group provided that the
aggregate amount of such Financial Indebtedness outstanding at any time
when taken together with the aggregate outstanding amount in respect of
Finance Leases and Vendor Financing Agreements entered into after the
Merger Closing Date, does not exceed £330 million (or its equivalent in
other currencies) (less any portion of the basket utilised under
paragraph (k) above) and further provided that in the case of any
Financial Indebtedness constituted by an overdraft facility which operates
on a gross/net basis, only the net amount of such facility shall count
towards such aggregate
amount;
|
| (o) |
Financial
Indebtedness of any Asset Securitisation Subsidiary incurred solely to
finance any asset securitisation programme or programmes or one or more
receivables factoring transactions otherwise permitted by
Clause 25.6(i) of this Agreement;
or
|
| (p) |
Financial
Indebtedness arising under tax-related financings designated in good faith
as such by prior written notice from the Company to the Facility Agent,
provided that the aggregate principal amount of such Financial
Indebtedness outstanding at any time does not exceed £500 million and
provided further that the proceeds thereof (after deducting all reasonable
fees, commissions, costs and expenses incurred by any member of the Group
in connection with such raising) are applied in accordance with
Clause 12.5(a)(iv) (Repayment from Debt
Proceeds).
|
|
25.5
|
Dividends,
Distributions and Share Capital
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall):
| (a) |
declare,
make or pay any dividend (or interest on any unpaid dividend), charge, fee
or other distribution (whether in cash or in kind) on or in respect of any
of its
shares;
|
| (b) |
redeem,
repurchase, defease, retire or repay any of its share capital, or resolve
to do
so;
|
| (c) |
repay
or distribute any share premium account;
or
|
| (d) |
repay
or otherwise discharge or purchase any amount of principal of (or
capitalised interest on) or pay any amount of interest in respect of
Subordinated
Funding,
|
other
than:
| (i) |
to
the extent the share capital of such Obligor is held by one or more other
Obligors or to the extent the share capital of any such member of the Bank
Group which is not an Obligor is held by one or more other members of the
Bank Group;
|
||
| (ii) | to the extent discharged in consideration of a transfer of any non-cash asset the disposal of which is not otherwise prohibited by this Agreement, by the waiver of any payment where no cash consideration is given in respect of such waiver or by way of conversion into any securities (including convertible unsecured loan stock), (or vice versa), which do not involve any cash payments or by way of capital contribution to the debtor in respect of such Subordinated Funding; |
| (iii) |
to
the extent required for the purpose of making payments
to:
|
|
(A)
|
the
indenture trustee for the Existing High Yield Notes in respect of High
Yield Trustee Amounts (as such term is defined in the HYD Intercreditor
Agreement);
|
||
|
(B)
|
the
indenture trustee for the New High Yield Notes in respect of High Yield
Trustee Amounts (as such term is defined in the HYD Intercreditor
Agreement);
or
|
|
(C)
|
for
the purpose of making payments in respect of any similar amounts to the
indenture trustee in respect of any High Yield Refinancing or the
Additional High Yield
Notes;
|
| (iv) |
provided
that no Event of Default has occurred and is continuing or is likely to
occur as a result thereof, to the extent required to fund Permitted
Payments;
|
||
| (v) |
at
any time after the occurrence of an Event of Default, to the extent
required to fund Permitted Payments not otherwise prohibited by the HYD
Intercreditor Agreement and the Group Intercreditor
Agreement;
|
| (vi) |
to
the extent such redemption, repurchase, defeasance, retirement or
repayment is in respect of a nominal amount; or
|
||
| (vii) |
payments
or distributions made directly or by means of discounts with respect to
any participation interest issued or sold in connection with, and other
fees paid to a person or entity that is not a member of the
Bank Group in connection with, an asset securitisation programme or
receivables factoring transaction otherwise permitted by
Clause 25.6(i) of this
Agreement.
|
The
Lenders hereby consent to any transaction or matter to the extent expressly
permitted under paragraphs (i) to (vii) above.
|
25.6
|
Disposals
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, either in a
single transaction or in a series of related transactions, sell, transfer, lease
or otherwise dispose of any shares in any of its Subsidiaries or all or any part
of its revenues, assets, other shares, business or undertakings other than in
the ordinary course of business or trading (which, for the avoidance of doubt,
includes mast sharing arrangements) and other than:
| (a) |
any
payment required to be made under the Finance Documents (including any
payment required to be made under any Alternative Baseball
Financing);
|
| (b) |
the
disposal of obsolete or surplus assets no longer required for the
efficient operation of the Group Business, on arms’ length commercial
terms;
|
| (c) |
disposals
of cash, the lending or repayment of cash or the disposal of Cash
Equivalent Investments or Marketable Securities, on arms’ length
commercial terms where the same is not otherwise restricted by the terms
of the Finance
Documents;
|
| (d) |
by
an Obligor to another Obligor, provided that if such
assets are subject to existing Security they remain so or will be made
subject to Security (in form and substance substantially similar to the
existing Security or otherwise in such form and substance as may
reasonably be required by the Facility Agent) within 10 Business Days of
such
disposal;
|
| (e) |
disposals
by a member of the Bank Group which is not an Obligor to another member of
the
Group;
|
| (f) |
disposals
of assets on arms’ length commercial terms where the cash proceeds of such
disposal are reinvested within 12 months of the date of the relevant
disposal in the purchase of replacement assets by a member of the Bank
Group, provided that where the relevant member of the Bank Group that has
made the disposal is an Obligor, such replacement assets are either
subject to existing Security Documents granted by the relevant member of
the Bank Group that has acquired the replacement assets, or will be made
subject to Security by such member of the Bank Group (in form and
substance substantially similar to the existing Security or otherwise in
such form and substance as may reasonably be required by the Facility
Agent) within 10 Business Days of the acquisition of such replacement
assets;
|
| (g) |
disposals
of any interest in real or heritable property by way of a lease or licence
granted by a member of the Bank Group to another member of the Bank
Group;
|
| (h) |
disposals
of any assets pursuant to the implementation of an Asset Passthrough or of
any funds received pursuant to the implementation of a Funding
Passthrough;
|
| (i) |
disposals
of any accounts receivable on arms’ length commercial terms pursuant to an
asset securitisation programme or one or more receivables factoring
transactions provided
that:
|
| (i) |
such
disposal is conducted on a non-recourse basis, except for recourse
to:
|
|
|
(A)
|
the
receivables which are the subject of such asset securitisation programme
or receivables factoring
transaction;
|
|
|
(B)
|
the
debtor in respect of the Financial Indebtedness for the purpose of
enforcing a security interest against it, so long
as:
|
|
|
(1)
|
the
recourse is limited to recoveries in respect of the receivables;
and
|
|
|
(2)
|
the
providers of the Financial Indebtedness do not have the right to take any
steps towards its winding up or dissolution or the appointment of a
liquidator, administrator, administrative receiver or similar officer
(other than in respect of the
receivables);
|
|
|
(C)
|
a
member of the Group to the extent of its shareholding or other interest in
any Asset Securitisation Subsidiary;
or
|
|
|
(D)
|
a
member of the Group under any form of assurance, undertaking or support,
where recourse is limited to:
|
|
|
(1)
|
a
claim for damages (not being liquidated damages or damages required to be
calculated in a specified way) for breach of a warranty or
undertaking;
|
|
|
(2)
|
a
claim for breach of warranty relating to the
receivables;
|
|
|
(3)
|
a
claim for breach of undertaking relating to the management and/or
collection of the receivables; or
|
|
|
(4)
|
a
claim for breach of representations, warranties, undertakings, guarantees
of performance (excluding any recourse with respect to the collectability
of any receivables or assets related to such receivables) and indemnities
entered into by the Borrower or any seller which are reasonably customary
in an accounts receivable
transaction,
|
and, in
each case, the obligation is not in any way a guarantee, indemnity or other
assurance against financial loss or an obligation to ensure compliance by
another with a financial ratio or other test of financial condition;
and
| (ii) |
the
aggregate principal amount of all such securitisations or factoring
transactions conducted in reliance on this paragraph (i) does not
exceed £330 million (or its equivalent in other currencies) at any
time;
|
| (j) |
disposals
of any shares or other interests in any Project Company, Bank Group
Excluded Subsidiary or Joint Venture or the assignment of any Financial
Indebtedness owed to a member of the Bank Group by a Project Company, Bank
Group Excluded Subsidiary or Joint
Venture;
|
| (k) |
disposals
of assets, revenues or rights of any member of the Bank Group arising from
an amalgamation, consolidation or merger of a member of the Bank Group
with any other person which is permitted by Clause 25.8 (Mergers);
|
| (l) |
disposals
of accounts receivable which have remained due and owing from a third
party for a period of more than 90 days and in respect of which the
relevant member of the Bank Group has diligently pursued payment in the
normal course of its business and where such disposal is on non-recourse
terms to such member of the Bank
Group;
|
| (m) |
disposals
of assets subject to finance or capital leases pursuant to the exercise of
an option by the lessee under such finance or capital
leases;
|
| (n) |
disposals
of assets in exchange for the receipt of assets of a similar or comparable
value where the assets received by any member of the Bank Group following
such exchange are located in the United Kingdom, Isle of Man, the Republic
of Ireland or the Channel Islands, provided
that:
|
| (i) |
to
the extent that the assets being disposed of are subject to existing
Security, the assets received following such exchange will be subject to
the existing Security Documents, or will be made subject to Security (in
form and substance substantially similar to the existing Security or
otherwise in such form and substance as may reasonably be required by the
Facility Agent) within 10 Business Days of such disposal;
and
|
||
| (ii) | where the aggregate net book value of all assets being exchanged in reliance on this paragraph (n) exceeds £10 million (or its equivalent in other currencies) in any Financial Quarter, there is delivered to the Facility Agent, within 30 days from the end of such Financial Quarter of the Bank Group, a certificate signed by two authorised officers of the Company (given without personal liability) certifying that the assets received by such member of the Bank Group in reliance on this paragraph (n) during such Financial Quarter (i) are of a similar or comparable value to the assets disposed of by such member of the Bank Group, and (ii) that such assets are located in United Kingdom, Isle of Man, the Republic of Ireland or the Channel Islands; |
| (o) |
disposals
constituting the surrender of tax losses by any member of the Bank
Group:
|
| (i) |
to
any Non-Bank Group UK Taxpayer to the extent that the total amount of such
Tax Losses aggregated with all other Tax Losses surrendered in the same
financial year in reliance on this paragraph (o) does not exceed the
Deductions Limit; and
|
||
| (ii) | to any other member of the Group other than a member of the Bank Group, where the surrendering company receives fair market value for such tax losses from the relevant recipient, |
provided
that no Tax Losses may be surrendered under sub-paragraph (ii) above unless
no later than 30 days after the proposed surrender, there is delivered to the
Facility Agent, a certificate signed by two authorised signatories of the
Company (given without personal liability), giving brief details of the relevant
transaction and certifying:
|
|
(A)
|
where
the fair market value to the recipient of any surrender of Tax Losses
exceeds £15 million (or its equivalent in other currencies), the fair
market value received by the surrendering company in respect of such Tax
Losses, as determined by the Company in its reasonable opinion, after
taking account of advice from its external tax advisers;
and
|
|
|
(B)
|
that,
taking into account the aggregate amount of Tax Losses surrendered by
members of the Bank Group (whether in reliance on this paragraph (o)
or otherwise) and assuming that the financial performance of the Bank
Group is in accordance with the projections set out in the Agreed Business
Plan), there is no reasonable expectation that any member of the Bank
Group will become a tax payer prior to the Final Maturity Date in respect
of the B1 Facility as a result of such surrender of Tax
Losses;
|
| (p) |
disposals
of assets to and sharing assets with any person who is providing services
the provision of which have been or are to be outsourced to that person by
any member of the Bank Group provided
that:
|
| (i) |
the
assets being disposed of in reliance on this paragraph (p) shall be
assets which relate to the services which are the subject of such
outsourcing;
|
||
| (ii) | the projected cash cost to the Bank Group of such outsourcing shall be less than the projected cash cost to the Bank Group of carrying out such outsourced activities at the levels of service to be provided by the service provider within the Bank Group; |
| (iii) |
the
economic benefits derived from any such outsourcing contract shall be
received by the Bank Group during the term of such
contract;
|
||
| (iv) | the aggregate fair market value of the assets disposed of shall not exceed 3.75% of Bank Group Consolidated Revenues in any financial year; and |
| (v) |
no
later than 30 days after the date of such outsourcing where the
consideration payable in respect of the assets subject to such disposal
exceeds £10 million (or its equivalent in other currencies), a duly
authorised officer of the Company shall have provided to the Facility
Agent, a certificate (without personal liability) verifying each of the
matters set out in sub-paragraphs (i) to (iii) above and certifying
that as at the date of such certificate, the aggregate fair market value
of all assets disposed in reliance on this paragraph (p) during such
financial year, does not exceed the threshold specified in
sub-paragraph (iv)
above;
|
| (q) |
disposals
of assets pursuant to sale and leaseback transactions not constituting
Financial Indebtedness where the aggregate fair market value of any assets
disposed of in reliance on this paragraph (q) does not, together with
the aggregate principal amount of all outstanding Financial Indebtedness
incurred under paragraph (k) of Clause 25.4 (Financial Indebtedness)
exceed £150 million (or its equivalent in other currencies) in any
financial year of the Company and any disposals of assets pursuant to sale
and leaseback transactions constituting Financial Indebtedness to the
extent such Financial Indebtedness is permitted under this
Agreement;
|
| (r) |
disposals
of any Hedging Agreements no longer required for the purpose for which it
was originally entered
into;
|
| (s) |
disposals
of non-core assets acquired in connection with a transaction permitted
under Clause 25.13 (Acquisitions and
Investments);
|
| (t) |
any
disposal of all or part of “NTL – Business Segment” pursuant to a Business
Division
Transaction;
|
| (u) |
any
disposals constituted by licences of intellectual property rights
permitted by Clause 24.6 (Intellectual
Property);
|
| (v) |
any
disposal of assets made pursuant to the establishment of a Permitted Joint
Venture or any disposal of assets to a Permitted Joint Venture which is
permitted within the scope of the provisions contained in Clause 25.9
(Joint Ventures);
and
|
| (w) |
disposals
of assets not otherwise permitted under this Clause 25.6 provided
that the aggregate fair market value of the assets disposed of during any
given financial year in reliance on paragraphs (p) and (q) above and
on this paragraph (w) does not exceed in respect of any financial
year of the Bank Group, 12.5% of Bank Group
Consolidated Revenues for the preceding financial year of the Bank Group,
calculated by reference to the annual financial information for the Bank
Group delivered in respect of the preceding financial year of the Bank
Group pursuant to paragraph (b)(ii) of Clause 22.1 (Financial
Statements);
|
provided
that in respect of any Disposal permitted under paragraphs (i), (m),
(o)(ii), (q) and (w) above:
|
|
(A)
|
such
disposal shall be on arm’s length commercial terms (or in the case of
paragraph (o)(ii) such disposals are for fair market value from the
perspective of the surrendering
company);
|
|
|
(B)
|
at
least 75% of the consideration for such disposal shall be comprised of
cash, Cash Equivalent Investments, Marketable Securities or Additional
Assets, provided that the aggregate amount of consideration received by
way of Marketable Securities shall not (valued as at the relevant time of
receipt of any Marketable Securities) at any time exceed £50 million (or
its equivalent in other currencies) and provided further that any Cash
Equivalent Investments, Marketable Securities and/or Additional Assets
acquired pursuant to any such disposal are monetized within 3 months of
the expiry of any lock-up arrangement entered into by the relevant member
of the Bank Group making such disposal with any third party (where such
lock-up arrangement has a term not exceeding 12 months);
and
|
|
|
(C)
|
in
respect of any disposal the fair market value of which exceeds £35 million
(or its equivalent in other currencies) no later than 30 days after the
date of such disposal, there shall have been delivered to the Facility
Agent, a certificate signed by two authorised officers of the Borrower
providing brief details of the transaction and certifying (in each case,
to the extent applicable) (1) (other than in respect of disposals under
paragraph (o)(ii) above) such disposal shall be on arm’s length
commercial terms or (in the case of paragraph (o)(ii) such disposals
are for fair market value from the perspective of the surrendering
company), (2) that not less than 75% of the consideration for such
disposal shall be in cash, Cash Equivalent Investments, Marketable
Securities or Additional Assets, and (3) to the extent any of the
consideration will include Marketable Securities, the name, amount and
other brief details of such Marketable
Securities.
|
|
25.7
|
Change
of Business
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group or save as
otherwise permitted by the terms of this Agreement make any change in the nature
of its business as carried on immediately prior to the Original Execution Date,
which would give rise to a substantial change in the business of the Bank Group
taken as a whole, provided that this Clause 25.7 shall not be breached by
an Obligor or any member of the Bank Group making a disposal permitted by
Clause 25.6 (Disposals), an acquisition or
investment permitted by Clause 25.13 (Acquisitions and Investments)
or entering into any joint venture permitted by Clause 25.9 (Joint Ventures).
|
25.8
|
Mergers
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, amalgamate,
consolidate or merge with any other person unless:
| (a) |
such
amalgamation, consolidation or merger is between two Obligors or an
Obligor and another member of the Group where the Obligor will be the
surviving
entity;
|
| (b) |
such
amalgamation, consolidation or merger is between two members of the Bank
Group which are not
Obligors;
|
| (c) |
such
amalgamation, consolidation, or merger constitutes an acquisition
permitted under Clause 25.13 (Acquisitions and
Investments);
|
| (d) |
any
member of the Bank Group liquidates or dissolves in either case on a
solvent basis and, with respect to the Obligors on a basis that is in
accordance with the provisions of Clause 25.20 (Solvent
Liquidation),
|
| (e) |
such
amalgamation, consolidation or merger is by an Obligor (the “Original Entity”) into
one or more entities (each a “Merged Entity”),
provided
that:
|
| (i) |
such
Merged Entity is a Obligor and is liable for the obligations of the
relevant Original Entity under this Agreement and the Security which
remain unaffected thereby and entitled to the benefit of all the rights of
such Original Entity;
|
||
| (ii) | if required by the Facility Agent, such Merged Entity has entered into one or more Security Documents which provide security over the same assets of at least an equivalent nature and ranking to the security provided by the relevant Original Entity pursuant to any Security entered into by them and any possibility of the Security referred to in this paragraph or paragraph (iii) below being challenged or set aside is not greater than any such possibility in relation to the Security entered into by or in respect of the share capital of any relevant Original Entity; |
| (iii) |
(if
all or any part of the share capital of the relevant Original Entity was
charged pursuant to one or more Security Documents) the equivalent part of
the issued share capital of such Merged Entity is charged pursuant to
Security on terms of at least an equivalent nature and ranking as the
Security relating to the shares in the relevant Original Entity;
and
|
||
| (iv) | the Facility Agent is satisfied (acting reasonably) that all the property and other assets of the relevant Original Entity are vested in the Merged Entity and that the Merged Entity has assumed all the rights and obligations of the relevant Original Entity under all material Necessary Authorisations; and |
| (f) |
transactions
that are expressly contemplated by the Steps
Paper,
|
provided
that in the case of paragraphs (a), (b), (c) and (e) only, no later than 10
Business Days prior to the proposed amalgamation, consolidation or merger a duly
authorised officer of the Company shall have delivered to the Facility Agent (in
form and substance satisfactory to the Facility Agent, acting reasonably) a
certificate verifying compliance with the relevant matters set out in such
paragraph and to the extent deemed necessary, the Facility Agent shall have
received appropriate advice from counsel in any relevant jurisdiction that such
amalgamation, consolidation or merger (1) will not result in the breach of any
applicable law or regulation in any material respect and (2) in the case of an
amalgamation, consolidation or merger involving an Obligor, will not have a
materially adverse impact upon any of the obligations owed by such Obligor to
the Finance Parties or upon the Security granted by such Obligor under any
Security Document.
|
25.9
|
Joint
Ventures
|
No
Obligor shall, (and the Company shall procure that no member of the Bank Group
shall) enter into, make any loans, distributions or other payments to, give any
guarantees for the Financial Indebtedness of, or acquire any interest or
otherwise invest in, any Joint Venture, other than:
| (a) |
an
acquisition of any interest in or any investment in any member of the UKTV
Group;
|
| (b) |
pursuant
to any loan or other funding arrangement in accordance with any Existing
UKTV Group Loan Stock (including the funding of any undrawn amount
thereunder as at the Original Execution Date);
or
|
| (c) |
the
acquisition of any interest in or any investment in, any Joint Venture
constituting a Business Division Transaction, provided
that:
|
| (i) |
the
Net Proceeds of any such transaction shall be distributed in accordance
with the provisions of sub-paragraph (iv) of Clause 25.5 (Dividends, Distributions and
Share Capital); and
|
||
| (ii) | any Net Proceeds which are not distributed in accordance with (i) above shall be retained within the Bank Group; or |
| (d) |
any
other Joint Venture not contemplated by paragraphs (a) to (c) above,
which is engaged in a business substantially the same as or reasonably
related or complimentary to, that carried on by the Bank Group and in any
financial year, the aggregate
of:
|
| (i) |
all
amounts invested or any interests acquired in any Joint Venture by members
of the Group; and
|
||
| (ii) | any loans made or any guarantees given for Financial Indebtedness of any Joint Venture, |
does not
exceed 3.25% of Bank Group Consolidated Revenues for the preceding financial
year, calculated by reference to the annual financial information for the Bank
Group delivered in respect of that preceding financial year of the Bank Group
pursuant to Clause 22.1 (Financial Statements),
provided that any loans or investments made by way of Asset Passthrough and any
payments made in respect of transactions conducted on an arm’s length basis or
in the ordinary course of trading with any Joint Venture, shall not be included
in the calculation of such amount.
|
25.10
|
Transactions
with Affiliates
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) without the prior written consent of an Instructing Group, enter into any
arrangement, contract or transaction with any other member of the Group which is
not an Obligor, other than:
| (a) |
transactions
expressly permitted by the Finance
Documents;
|
| (b) |
transactions
between a member of the Bank Group that is not an Obligor with any other
member of the Bank Group which is not an
Obligor;
|
| (c) |
transactions
in the ordinary course of business and either on no worse than arm’s
length terms or, where there is no available market by which to assess
whether such a transaction is on no worse than arm’s length terms, on
terms such that the transaction is financially fair to the relevant
Obligor or, as the case may be, other member of the Bank
Group;
|
| (d) |
transactions
with any member of the Group in relation to management services conducted
at not less than Cost on behalf of such member of the
Group;
|
| (e) |
tax
sharing agreements or arrangements to surrender tax losses and payments
made pursuant thereto, to the extent such transactions are not prohibited
by this
Agreement;
|
| (f) |
transactions
relating to the provision of Intra-Group
Services;
|
| (g) |
transactions
to effect either an Asset Passthrough or a Funding
Passthrough;
|
| (h) |
transactions
either on terms and conditions (including, without limitation, as to any
reasonable fees payable in connection with such transactions) not
substantially less favourable to the relevant Obligor or, as the case may
be, other member of the Bank Group than would be obtainable at such time
in comparable arm’s length transactions with an entity which is not an
Affiliate or, where there is no comparable arm’s length transaction by
which to assess whether such a transaction is on terms and conditions not
substantially less favourable to the relevant Obligor or, as the case may
be, other member of the Bank Group, on such terms and conditions
(including, without limitation, as to any fees payable in connection with
such transaction) that the transaction is financially fair to the relevant
Obligor or, as the case may be, other member of the Bank
Group;
|
| (i) |
any
transaction to which one or more Obligors and one or more members of the
Group who are not Obligors are party where the sole purpose of such
transaction is for such Obligors and members of the Group to effect a
transaction with a person who is not a member of the
Group;
|
| (j) |
insurance
arrangements entered into in the ordinary course of business with a
Captive Insurance
Company;
|
| (k) |
transactions
relating to capital contributions between members of the Group or the
amendment of the terms of any loans made by or any convertible unsecured
loan stock or other securities issued by any member of the Group to any
other member of the Group (whether by way of conversion of loans to
convertible unsecured loan stock or vice versa or otherwise) or the
capitalisation of, or the waiver of or the repayment of, loans made by or
any convertible unsecured loan stock issued by any member of the Group to
any other member of the
Group;
|
| (l) |
transactions
relating to Excess Capacity Network Services provided that the price
payable by any member of the Group in relation to such Excess Capacity
Network Services is no less than the Cost incurred by the relevant member
of the Bank Group in providing such Excess Capacity Network
Services;
|
| (m) |
transactions
constituting Subordinated
Funding;
|
| (n) |
transactions
constituting Permitted Payments;
or
|
| (o) |
any
other transaction or arrangement permitted under Clause 25.3 (Loans and Guarantees),
Clause 25.4 (Financial
Indebtedness), Clause 25.5 (Dividends, Distributions and
Share Capital), Clause 25.6 (Disposals),
Clause 25.8 (Mergers),
Clause 25.9 (Joint
Ventures), or Clause 25.13 (Acquisitions and
Investments).
|
|
25.11
|
Change
in Financial Year
|
Neither
the Parent nor any Obligor shall, without the prior consent of the Facility
Agent, change the end of its financial year from 31 December.
|
25.12
|
Limitations
on Hedging
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) enter into any Hedging Agreement other than:
| (a) |
the
Hedging Agreements listed in Part 6 of Schedule 10 (Existing Hedging
Agreements);
|
| (b) |
Hedging
Agreements specifically required under Clause 24.9 (Hedging);
or
|
| (c) |
any
Hedging Agreement entered into for the purposes of hedging any
Subordinated Funding to the extent such Subordinated Funding is made with
the proceeds of any Parent Refinancing Indebtedness;
or
|
| (d) |
any
Hedging Agreement in respect of spot or forward foreign exchange
transactions or currency swaps entered into in connection with such member
of the Bank Group’s business, which is not entered into for investment or
speculative purposes and, for the avoidance of doubt (subject to the
provisions of Clause 25.10 (Transactions with
Affiliates), any such Hedging Agreement may be entered into with
another member of the
Group.
|
|
25.13
|
Acquisitions
and Investments
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) purchase, subscribe for or otherwise acquire or invest in any shares (or
other securities or any interest in it) in, or incorporate, any company or
acquire (by subscription or otherwise) or invest in any business or (save in the
ordinary course of business) purchase or otherwise acquire any other assets
other than:
| (a) |
the
purchase of or investment in Cash Equivalent Investments or Marketable
Securities (including without limitation by way of consideration in
respect of any disposal as contemplated in the proviso to Clause 25.6
(Disposals) and
subject to the conditions set out
therein);
|
| (b) |
the
incorporation of a company or the acquisition of an “off-the-shelf”
company which is or becomes a member of the Bank
Group;
|
| (c) |
any
acquisition by any member of the Bank Group in connection with a disposal
permitted by the provisions of Clause 25.6 (Disposals) and any
acquisition or subscription by a member of the Bank Group of shares issued
by a Subsidiary of the Borrower or a Subsidiary of Virgin Media
Communications Limited (formerly known as NTL Communications Limited)
which in any such case, is a member of the Bank Group which will, after
the acquisition of such shares become a wholly owned direct or indirect
Subsidiary of the Company or Virgin Media Communications Limited (formerly
known as NTL Communications Limited) as the case may be, provided that if the
other shares of such Subsidiary are subject to existing Security, either
(i) such newly issued shares shall also be subject to Security (in form
and substance substantially similar to any existing Security or otherwise
in such form and substance as may be reasonably required by the Facility
Agent) upon their issue or (ii) such shares shall be made subject to
Security (in form and substance substantially similar to any existing
Security or otherwise in such form and substance as may be reasonably
required by the Facility Agent) within 10 Business Days of their
issue;
|
| (d) |
the
acquisition of any shares in NTL South Herts or the acquisition of any
interests in the limited partners of South Hertfordshire United Kingdom
Fund,
Ltd.;
|
| (e) |
any
acquisition made by a member of the Bank Group pursuant to the
implementation of an Asset Passthrough or a Funding
Passthrough;
|
| (f) |
any
acquisition expressly contemplated by the Steps
Paper;
|
| (g) |
any
acquisition by any member of the Bank Group of any loan receivable,
security or other asset by way of capital contribution or in consideration
of the issue of any securities or of Subordinated
Funding;
|
| (h) |
any
acquisition of shares, assets, revenues or rights arising from an
amalgamation, consolidation or merger of a member of the Bank Group with
any other person which is permitted by Clause 25.8 (Mergers);
|
| (i) |
the
acquisition of any leasehold interest in any assets which are the subject
of a sale and leaseback permitted by the provisions of paragraph (q)
of Clause 25.6 (Disposals);
|
| (j) |
any
acquisition of or investment in any Joint Venture permitted by
Clause 25.9 (Joint
Ventures);
|
| (k) |
any
purchase or acquisition of assets or revenues by a member of the Bank
Group from a member of the Bank Group, provided that the disposal of such
assets or revenues by the relevant member of the Bank Group is permitted
under Clause 25.6 (Disposals);
|
| (l) |
arising
from the conversion of any company (the “Original Company”) from
one form of organisation into another form of organisation provided that
(i) if, prior to the time of such conversion, the Security Trustee has the
benefit of Security over the shares of such Original Company or such
Original Company is an Obligor, then the Company shall ensure that the
Security Trustee is provided with Security over the equivalent ownership
interests in, and substantially all of the assets of, the converted
organisation, of at least an equivalent nature and ranking to the Security
previously provided by the Original Company and (ii) the Security Trustee
is satisfied that any possibility of the additional Security referred to
in this paragraph being challenged or set aside is not greater than
any such possibility in relation to the Security entered into by or in
respect of the share capital of the Original
Company;
|
| (m) |
the
Baseball
Acquisition;
|
| (n) |
the
Alternative Baseball Acquisition, provided
that:
|
| (i) |
the
total cash payment for such acquisition (including the assumption of debt)
does not exceed £500 million;
|
||
| (ii) | at the time of completion of such Alternative Baseball Acquisition, no Event of Default has occurred or in continuing or would occur as a result of such acquisition; and |
| (iii) |
after
giving pro forma effect for such Alternative Baseball Transaction, the
Bank Group continue to be in compliance with Clause 23.2 (Ratios);
|
| (o) |
any
acquisition (a “Permitted
Acquisition”) of a person carrying on any business similar and/or
complementary to the Group (the “Acquiree”) in each
case:
|
| (i) |
no
Default is continuing on the closing date for the Permitted Acquisition or
would occur as a result of the Permitted Acquisition;
|
||
| (ii) | the aggregate consideration for the Permitted Acquisition (including any assumed indebtedness, or other assumed actual or contingent liability and any associated fees and expenses) (the “Total Purchase Price”) is funded entirely from (A) the proceeds of New Equity and (B) up to £200 million in aggregate of available cash within the Group or Financial Indebtedness permitted by this Agreement; |
| (iii) |
the
Acquiree has positive earnings before tax, depreciation and amortisation
calculated on the same basis as Consolidated Operating Cashflow for the
previous one financial year ending on the last day of the last financial
quarter of the then current financial year of such company or business for
which financial statements are available;
|
||
| (iv) | in the case of the acquisition of all of the issued share capital of the Acquiree, as soon as reasonably practicable, but in any case within 90 days from the completion of the Permitted Acquisition, the Acquiree (and the acquirer, as applicable) must to the extent required by Clause 24.12 (Further Assurance) accede as a Guarantor in accordance with the provisions of Clause 26.2 (Acceding Guarantors); |
| (v) |
in
the case of the acquisition of a business or undertaking carried on as a
going concern of the Acquiree, as soon as reasonably practicable, but in
any case within 90 days from the completion of the Permitted Acquisition,
the acquirer, to the extent that it is an Obligor, must give Security over
the assets acquired by executing Security Documents, in form and substance
satisfactory to the Facility Agent and to the extent it becomes a Material
Subsidiary, it shall accede as a Guarantor in accordance with the
provision of Clause 26.2 (Acceding
Guarantors);
|
||
| (vi) | for any Permitted Acquisition the Total Purchase Price of which is in excess of £100 million, the Company must provide to the Facility Agent (to the extent practicable not later than 5 Business Days prior to the proposed acquisition): |
|
|
(A)
|
copies
of all due diligence reports (if any) commissioned by the Company or any
relevant member of the Bank Group in respect of the proposed Permitted
Acquisition;
|
|
|
(B)
|
copies
of all sale and purchase documents relating to the proposed Permitted
Acquisition, in each case duly executed and delivered by all parties
thereto, together with confirmation that all material Authorisations for
such acquisition have been made, obtained and are in full force and
effect;
|
|
|
(C)
|
an
updated Budget amended to reflect the proposed Permitted Acquisition;
and
|
| (vii) |
the
Company will provide to the Facility Agent, a certificate signed by the
chief financial officer of the Company showing in reasonable detail
that:
|
|
|
(A)
|
it
would have remained in compliance with its obligations under
Clause 23 (Financial Condition) if
the covenants tested therein were recalculated for the most recent Quarter
Date for which quarterly financial information is available, such
recalculation to be made by reference to the financial statements of the
Acquiree consolidated with the financial statements of the Bank Group for
such period on a pro forma basis and as if the consideration for the
proposed acquisition had been paid at the start of that relevant testing
period ending on that Quarter Date and any borrowings incurred in
connection with the acquisition or since the last day of the relevant
testing period had been incurred on the first day of the relevant testing
period and (to the extent agreed by the Facility Agent, acting reasonably)
to any reasonably identifiable cost savings and other synergies which are
reasonably expected to result from the Permitted Acquisition;
and
|
|
|
(B)
|
it
will be in compliance with its obligations under Clause 23 (Financial Condition) as
at the end of the next Financial Quarter, such compliance to be
demonstrated on a pro forma basis by reference to the financial statements
of the Acquiree, consolidated with the financial statements of the Bank
Group for such period and (to the extent agreed by the Facility Agent,
acting reasonably) to any reasonably identifiable cost savings and other
synergies which are reasonably expected to result from the Permitted
Acquisition;
|
| (p) |
acquisitions
not falling within paragraphs (a) to (o) above provided that the
aggregate consideration for the acquisitions permitted by this
paragraph (p) shall not exceed £300 million;
and
|
| (q) |
investments
in any Asset Securitisation Subsidiary in connection with any asset
securitisation programme or receivables factoring transaction otherwise
permitted by Clause 25.6(i) of this Agreement that is reasonably
necessary or advisable to effect such asset securitisation programme or
receivables factoring
transaction.
|
|
25.14
|
High
Yield Notes
|
Save to
the extent expressly permitted under the terms of the HYD Intercreditor
Agreement or, in relation to the Additional High Yield Notes, in any
Supplemental Additional High Yield Notes Intercreditor Agreement, without the
consent of an Instructing Group:
| (a) |
with
respect to the Parent
only:
|
| (i) |
it
will not transfer any of its rights or obligations under the Existing High
Yield Notes or agree any amendment to the Existing High Yield Notes (i)
relating to the increase in the amount of or the bringing forward of the
date of any payment of principal, interest, fees or other amounts payable
thereunder or (ii) changing the currencies in which the Existing High
Yield Notes are denominated as at the Merger Closing Date (other than in
the case where the United Kingdom becomes a Participating Member
State);
|
||
| (ii) | it will not transfer any of its rights or obligations under the New High Yield Notes or Additional High Yield Notes or agree any amendment to the New High Yield Notes or Additional High Yield Notes after the date of issuance (i) relating to the increase in the amount of or the bringing forward of the date of any payment of principal, interest, fees or other amounts payable thereunder or (ii) changing the currencies in which the New High Yield Notes or Additional High Yield Notes are denominated as at the date of issuance (other than in the case where the United Kingdom becomes a Participating Member State); or |
| (iii) |
in
relation to any High Yield Refinancing permitted under the terms of this
Agreement, it will not change any of the original terms under which such
High Yield Refinancing was issued, where such terms relate to the
conditions of such High Yield Refinancing set out in the definition
thereof;
or
|
| (b) |
with
respect to the Company it will not agree any amendment to the guarantee
granted by it in respect of obligations of the Parent under the Existing
High Yield Notes or any guarantee granted in respect of the New High
Yields Notes or High Yield Refinancing or Additional High Yield Notes and
which is granted in accordance with the terms of paragraph (c) of
Clause 25.4 (Financial
Indebtedness),
|
in each
case, other than amendments of an administrative or technical
nature.
|
25.15
|
No
Restrictions on Payments
|
No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) enter into any agreement, transaction or other arrangement which
restricts or attempts to restrict such Obligor or other member of the Bank Group
from making any payments or other distributions in cash to any other member of
the Bank Group, if any such restriction affects the ability of the Obligors as a
whole to comply with the payment obligations under the Finance Documents or is
reasonably likely to result in the incurrence of significant costs, or any
significant increase in, any costs and expenses payable by or any taxes owing by
the Bank Group as a whole or is reasonably likely to result in a significant
increase in any taxes in any material amount owing by the Bank Group as a whole,
other than pursuant to or as contemplated by the Finance Documents or the Bridge
Finance Documents.
|
25.16
|
Parent
Covenants
|
The
Parent shall not trade, carry on any business, own any material assets or incur
any material liabilities except for:
| (a) |
the
carrying on business of and the provision of administrative services to
members of the Bank Group of a type customarily provided by, a holding
company to its
Subsidiaries;
|
| (b) |
the
ownership of shares in the Company, intergroup debit balances, intergroup
credit balances and other credit balances in bank accounts and cash,
provided that any shares held by the Parent in the Company, or any
intergroup credit balances owed to a the Parent by, an Obligor shall
be:
|
| (i) |
subject
to Security;
|
||
| (ii) | to the extent applicable, subject to the provisions of the HYD Intercreditor Agreement or the Group Intercreditor Agreement; |
| (c) |
any
rights and liabilities arising under the Finance Documents, the Existing
High Yield Notes, the Bridge Finance Documents, the New High Yield Notes,
the Additional High Yield Notes or any High Yield
Refinancing.
|
| (d) |
having
rights and liabilities under any hedging arrangements which are entered
into by it pursuant to Clause 24.9 (Hedging) of this
Agreement;
|
| (e) |
incurring
liabilities for or in connection with Taxes or arising by operation of
law;
and
|
| (f) |
in
respect of any service contracts for any directors or
employees.
|
|
25.17
|
No
Amendments
|
| (a) |
No
Obligor shall (and the Company shall procure that no member of the Bank
Group shall) amend the Tax Cooperation Agreement (to the extent it is a
party thereto) or its constitutional documents, in each case, in a manner
which could reasonably be expected to have a Material Adverse Effect other
than with the prior written consent of an Instructing Group or where
required by law (provided that, in the case of the latter, such amendment
could not reasonably be expected to have a Material Adverse
Effect);
|
| (b) |
The
Parent shall procure that except as permitted by the HYD Intercreditor
Agreement and the Group Intercreditor Agreement, no amendment is made
to:
|
| (i) |
the
Bridge Finance Documents (or any Exchange Notes, as
applicable);
|
||
| (ii) | the Existing High Yield Notes; |
| (iii) |
the
New High Yield Notes; or
|
||
| (iv) | the Additional High Yield Notes; |
in each
case, in a manner which could reasonably be expected to have a Material Adverse
Effect other than with the prior written consent of the Instructing Group or
where required by law.
|
25.18
|
Parent
Debt
|
The
Ultimate Parent shall not (and shall procure that none of its Subsidiaries
(other than a member of the Bank Group) shall) incur, create or permit to
subsist or have outstanding any Financial Indebtedness or enter into any
agreement or arrangement whereby it is entitled to incur, create or permit to
subsist any Financial Indebtedness unless the Ultimate Parent can demonstrate by
reference to the quarterly financial information for the Group most recently
delivered pursuant to Clause 22.1 (Financial Statements) that
the Leverage Ratio (adjusted in the case of the Consolidated Net Debt element,
to take account of the Financial Indebtedness in question and any other
Financial Indebtedness raised by the Ultimate Parent or such Subsidiary since
the date of such quarterly financial information) is not more than 4.25:1 for
the period of four consecutive financial quarters ended on the last day of the
financial quarter in respect of which such quarterly financial information was
delivered provided that the foregoing limitations shall not apply
to:
| (a) |
any
Financial Indebtedness arising under or pursuant to the Finance
Documents;
|
| (b) |
any
Financial Indebtedness incurred (including any such Financial Indebtedness
existing as at the Original Execution Date) by any member of the Group
(other than a member of the Bank Group) and owed to any other member of
the
Group;
|
| (c) |
any
Financial Indebtedness incurred by any member of the Group (other than a
member of the Bank Group) which, if it had been incurred by a Borrower at
such time, would be permitted to be incurred pursuant to Clause 25.4
(Financial
Indebtedness) provided that if any basket or threshold contained in
Clause 25.4 (Financial Indebtedness)
is utilized by any member of the Group (other than a member of the Bank
Group) pursuant to this paragraph (c), such basket or threshold shall
be reduced by a corresponding amount and shall thereafter be unavailable
for use by any member of the Bank
Group;
|
| (d) |
any
Financial Indebtedness incurred by any member of the Group (other than a
member of the Bank Group) to refinance all or any part of the
Outstandings, including the payment of all principal, interest, fees,
expenses, commissions, make-whole and any other contractual premium
payable, in respect of such Outstandings and any fees, costs and expenses
incurred in connection with such
refinancing;
|
| (e) |
the
Bridge Facility, the Alternative Bridge Facility, the Exchange Notes, the
Existing High Yield Notes, any New High Yield Notes, the Additional High
Yield Notes or any High Yield Refinancings;
and
|
| (f) |
any
Financial Indebtedness incurred by any Permitted Joint
Venture.
|
|
25.19
|
US
Borrower
|
The US
Borrower shall not:
| (a) |
carry
on any trade or business, other than the management of its own financial
affairs and operations to the extent necessary in connection with the
Finance Documents and the acquisition and ownership of the Notes,
including without limitation, the opening and maintenance of bank accounts
outside of the United Kingdom, the granting of loans or other credit, the
borrowing of monies, the making of any distributions, and the payment of
fees, costs, taxes and other charges properly incurred by it in the
conduct of its operations from time to time, provided always that none of
the foregoing activities shall render the US Borrower as resident for tax
purposes in the United
Kingdom;
|
| (b) |
own
any Subsidiary or other
entity;
|
| (c) |
create
or permit to subsist any Encumbrance over its rights under or title and
interest in the Notes, other
than:
|
| (i) |
pursuant
to the Security; or
|
||
| (ii) | as contemplated by any applicable Group Intercreditor Agreement or the HYD Intercreditor Deed; or |
| (d) |
dispose
of any or all of its rights, title and interest in the Notes other than
pursuant to or as contemplated by the Security Documents or as
contemplated by any applicable Group Intercreditor Agreement or the HYD
Intercreditor
Deed.
|
|
25.20
|
Solvent
Liquidation
|
No
Obligor (for these purposes, a “Predecessor Obligor”) shall,
without the prior written consent of an Instructing Group, liquidate on a
solvent basis (a “Solvent
Liquidation”) unless:
| (a) |
on
or prior to the Solvent Liquidation, an entity (the “Successor Entity”)
acquires substantially all of the assets and assumes substantially all of
the liabilities of the Predecessor Obligor (a “Liquidation Transfer”),
excluding any rights under contracts that cannot be assigned or
liabilities that will be satisfied or released upon the Solvent
Liquidation, on an arms’ length basis and for full
consideration;
|
| (b) |
the
Successor Entity is organised in the same jurisdiction as that in which
the Predecessor Obligor is organised and is
either:
|
| (i) |
an
existing Obligor; or
|
||
| (ii) | a Subsidiary of the Company that is entitled to become (and subsequently does become) an Obligor in accordance with the provisions of Clause 26.1 (Acceding Borrowers) or Clause 26.2 (Acceding Guarantors); and |
| (c) |
the
Successor Entity does not incur any additional material liabilities in
connection with the Solvent Liquidation other than those which are to be
transferred to it by the Predecessor Obligor but which did not arise
directly as a result of the Solvent
Liquidation;
|
| (d) |
to
the extent previously provided in respect of the shares of the Predecessor
Obligor, the Finance Parties are granted a first ranking security interest
over the shares of the Successor
Entity;
|
| (e) |
no
Event of Default has occurred and is continuing or would arise from the
Liquidation Transfer or the Solvent
Liquidation;
|
| (f) |
immediately
after the Solvent Liquidation, the following documents are delivered to
the Facility Agent each in a form previously approved by the Facility
Agent (acting on the instructions of an Instructing
Group):
|
| (i) |
copies
of solvency declarations of the directors of the Successor Entity
confirming to the best of their knowledge and belief, that the Successor
Entity was balance sheet solvent immediately prior to and after the
Solvent Liquidation, accompanied by any report by the auditors or other
advisers of the relevant Successor Entity on which such directors have
relied for the purposes of giving such declaration;
|
||
| (ii) | copies of the resolutions of the Predecessor Obligor and the Successor Entity (to the extent required by law) approving the Liquidation Transfer and/or the Solvent Liquidation (as applicable); |
| (iii) |
copies
of the statutory declarations of the directors of the Predecessor Obligor
(to the extent required by law) given in connection with Solvent
Liquidation;
|
||
| (iv) | a copy of the executed transfer agreement relating to the Liquidation Transfer; and |
| (v) |
the
legal opinion from the Successor Entity’s counsel confirming (i) the due
capacity and incorporation of each of the Successor Entity and the
Predecessor Obligor, (ii) the power and authority of the Successor Entity
to enter into and perform its obligations under this Agreement and any
other Finance Document to which it is a party and (iii) that the transfer
agreement giving effect to the Liquidation Transfer is legally binding and
enforceable in accordance with its
terms.
|
|
25.21
|
ERISA
|
Neither
any Obligor nor any ERISA Affiliate shall maintain or contribute to (or have an
obligation to contribute to) a Plan subject to Title IV or Section 302 of ERISA
and/or Section 412 of the Code or to a Multiemployer Plan which could reasonably
be expected to give rise to a material liability to any Obligor or any Finance
Party.
|
26.1
|
Acceding
Borrowers
|
| (a) |
Subject
to paragraph (b) below, the Company may, upon not less than 3
Business Days’ prior written notice to the Facility Agent, request that
any member of the Bank Group becomes an Acceding Borrower under this
Agreement.
|
| (b) |
Such
member of the Bank Group may become an Acceding Borrower
if:
|
| (i) | it is incorporated in the United Kingdom or (if it is not incorporated in the United Kingdom) an Instructing Group has approved the addition of that member of the Bank Group as an Acceding Borrower; | ||
| (ii) | the Company delivers to the Facility Agent a duly completed and executed Accession Notice pursuant to which it agrees to become a party to this Agreement as an Acceding Borrower and (subject to any provision of law prohibiting the same) an Acceding Guarantor; |
| (iii) | the Company confirms that no Event of Default is continuing or would occur as a result of that member of the Bank Group becoming an Acceding Borrower; and Acceding Guarantor; and | ||
| (iv) | the Facility Agent has received all of the documents and other evidence listed in Part 2 of Schedule 7 (Accession Documents) in relation to that member of the Bank Group, each in form and substance satisfactory to the Agent, acting reasonably. |
| (c) |
The
Facility Agent shall notify the Company and the Lenders promptly upon
being satisfied that the conditions specified in paragraph (b) above
have been
satisfied.
|
|
26.2
|
Acceding
Guarantors
|
| (a) |
Subject
to paragraph (b) below, the Company may, upon not less than 3
Business Days’ prior written notice to the Facility Agent, request that
any member of the Bank Group becomes an Acceding Guarantor under this
Agreement.
|
| (b) |
Such
member of the Bank Group may become an Acceding Guarantor
if:
|
| (i) | the Company delivers to the Facility Agent a duly completed and executed Accession Notice; | ||
| (ii) | the Company confirms that no Event of Default is continuing or would occur as a result of that member of the Bank Group becoming an Acceding Guarantor; and |
|
(iii)
|
the Facility Agent has received all of the documents and other evidence listed in Part 2 of Schedule 7 (Accession Documents) in relation to that member of the Bank Group, each in form and substance satisfactory to the Agent, acting reasonably. |
| (c) |
The
Facility Agent shall notify the Company and the Lenders promptly upon
being satisfied that the conditions specified in paragraph (b) above
have been
satisfied.
|
|
26.3
|
Acceding
Holding Company
|
If at any
time the Ultimate Parent becomes a Subsidiary of a Holding Company, the Ultimate
Parent shall ensure that such Holding Company shall, upon becoming the Holding
Company of the Ultimate Parent deliver an Accession Notice duly executed by the
Company and the Holding Company together with the documents set out in Part 2 of
Schedule 7 (Accession
Documents).
|
26.4
|
Assumption
of Rights and Obligations
|
| (a) |
Upon
satisfactory delivery of a duly executed Accession Notice to the Facility
Agent, together with the other documents required to be delivered under
Clauses 26.1 (Acceding Borrowers) and
26.2 (Acceding
Guarantors), the relevant member of the Bank Group, the Ultimate
Parent, the Parent, the Obligors and the Finance Parties, will assume such
obligations towards one another and/or acquire such rights against each
other as they would each have assumed or acquired had such member of the
Bank Group been an original party to this Agreement as a Borrower or a
Guarantor as the case may be and such member of the Bank Group shall
become a party to this Agreement as an Acceding Borrower and/or an
Acceding Guarantor as the case may
be.
|
| (b) |
Upon
satisfactory delivery of a duly executed Accession Notice to the Facility
Agent, together with the other documents required to be delivered under
Clause 26.3 (Acceding Holding
Company), the relevant Holding Company, the Parent, the Obligors
and the Finance Parties, will assume such obligations towards one another
and/or acquire such rights against each other as they would each have
assumed or acquired had such Holding Company been an original party to
this Agreement as the Ultimate Parent, and such Holding Company shall
become a party to this Agreement in such
capacity. Simultaneously with such Holding Company becoming a
party to this Agreement as aforesaid, the Facility Agent shall release the
Ultimate Parent for the time being from its obligations as an Ultimate
Parent under this Agreement and such Ultimate Parent shall cease to be a
party to this Agreement in such
capacity.
|
Each of
Clauses 27.1 (Non-Payment) to
Clause 27.16 (Change of
Ownership) describes the circumstances which constitute an Event of
Default for the purposes of this Agreement.
|
27.1
|
Non-Payment
|
The
Parent or any Obligor fails to pay any sum due from it under any Finance
Document at the time, in the currency and in the manner specified in such
Finance Document within (a) 1 Business Day of the due date, in the case of
payments of principal where failure to pay was due solely to technical or
administrative error in the transmission of funds, (b) 3 Business Days of the
due date, in the case of payments of interest, or (c) 5 Business Days of the due
date, in respect of payments of any other amounts.
|
27.2
|
Covenants
|
| (a) |
The
Ultimate Parent, the Parent or an Obligor fails duly to perform or comply
with any obligation expressed to be assumed by it in Clause 24.1
(Application of
Advances), Clause 25.2 (Negative Pledge),
Clause 25.3 (Loans
and Guarantees), Clause 25.4 (Financial
Indebtedness), Clause 25.5 (Dividends, Distributions and
Share Capital), Clause 25.8 (Mergers),
Clause 25.9 (Joint
Ventures) or Clause 25.13 (Acquisitions and
Investments).
|
| (b) |
The
Parent or any Obligor fails duly to perform or comply with any obligation
expressed to be assumed by it in Clause 22 (Financial Information)
or sub-paragraph (b)(i) of Clause 24.12 (Further Assurance),
paragraphs (a) and (b) of Clause 24.9 (Hedging), and such
failure, if capable of remedy is not so remedied within 10 Business Days
of the earlier of the Parent or such Obligor becoming aware of such
failure to perform or comply and the Facility Agent having given notice of
such failure to the
Company.
|
| (c) |
There
is any breach of Clause 23.2 (Ratios).
|
| (d) |
There
is any breach of Clause 25.6 (Disposals), provided
that where the failure to comply with any obligation under
Clause 25.6 (Disposals) relates to
the obligation to deliver a certificate within a specified time period, no
Event of Default shall be deemed to have occurred unless the Borrower
shall have failed to deliver the required certificate within such time
period and upon request by the Facility Agent for a description of the
transactions relating to such certificate which was not delivered, the
Borrower fails to provide such details within 10 Business Days after such
request.
|
|
27.3
|
Other
Obligations
|
The
Ultimate Parent, the Parent or any Obligor fails duly to perform or comply with
any of the obligations expressed to be assumed by it in any of the Finance
Documents (other than any of those referred to in Clauses 27.1 (Non-Payment) and 27.2 (Covenants)) and such failure,
if capable of remedy, is not so remedied within 30 days of the earlier of the
Ultimate Parent, the Parent or such Obligor becoming aware of such failure to
perform or comply and the Facility Agent having given notice of such failure to
the Borrower.
|
27.4
|
Misrepresentation
|
Any
representation or statement made or repeated by the Ultimate Parent, the Parent
or an Obligor in any Finance Document or in any notice or other document or
certificate delivered by it pursuant to a Finance Document is or proves to have
been incorrect or misleading in any material respect when made or repeated where
the circumstances giving rise to such inaccuracy, if capable of remedy or change
are not remedied or do not change within 30 days of the earlier of the Ultimate
Parent, the Parent or the relevant Obligor becoming aware of such circumstances
and the Facility Agent having notified the Borrower of such misrepresentation
having occurred.
|
27.5
|
Cross
Default
|
| (a) |
Any
Financial Indebtedness of any member of the Group is not paid when due and
payable, after taking into account any applicable grace
period;
|
| (b) |
any
Financial Indebtedness of any member of the Group is declared (or is
capable of being declared) to be or otherwise becomes due and payable
prior to its specified maturity as a result of an event of default
(however described), after taking into account any applicable grace
period;
or
|
| (c) |
any
commitment for any Financial Indebtedness of any member of the Group is
cancelled or suspended by a creditor of any member of the Group as a
result of an event of default (however
described),
|
provided
that no Event of Default will occur under this Clause 27.5:
| (i) | if the aggregate amount of Financial Indebtedness and/or commitment for Financial Indebtedness falling within paragraphs (a) to (c) above is less than £35 million (or its equivalent in other currencies); | ||
| (ii) | if the circumstance which would otherwise have caused an Event of Default under this Clause 27.5 is being contested in good faith by appropriate action; |
| (iii) | if the relevant Financial Indebtedness is cash-collateralised and such cash is available for application in satisfaction of such Financial Indebtedness; | ||
| (iv) | if such Financial Indebtedness is owed by one member of the Group to another member of the Group; or |
| (v) | if such Event of Default arises solely by reason of the failure of any member of the Group to obtain the consent of the lenders under the Existing Credit Facilities to (i) the execution of the Finance Documents, (ii) the exercise of any of its rights or the performance of any of its obligations under the Finance Documents or (iii) any other matter contemplated by the Finance Documents. |
|
27.6
|
Insolvency
|
The
Ultimate Parent, the Parent, any Borrower, any Obligor that is a Material
Subsidiary or (for the purposes of Clause 3.5 (Vanilla Certain Funds Period) only)
the Merger Sub, is unable to pay its debts as they fall due, ceases or suspends
generally the payment of its debts or announces an intention to do so, or makes
a general assignment for the benefit of or a composition with its creditors
generally or a general moratorium is declared in respect of the Financial
Indebtedness of the Ultimate Parent, the Parent, such Borrower, such Obligor or
(for the purposes of Clause 3.5 (Vanilla Certain Funds Period)
only) the Merger Sub (as applicable).
|
27.7
|
Winding-up
|
After the
Original Execution Date, the Ultimate Parent, the Parent, any Borrower, any
Obligor that is a Material Subsidiary or (for the purposes of Clause 3.5
(Vanilla Certain Funds Period) only)
the Merger Sub, takes any corporate action or formal legal proceedings are
started and served (not being actions or proceedings which can be demonstrated
to the satisfaction of the Facility Agent by providing an opinion of a leading
firm of London solicitors (within 30 days of any such action or proceedings
having commenced) to that effect, as frivolous, vexatious or an abuse of the
process of the court or related to a claim to which such Person has a good
defence and which is being vigorously contested by such body) for its
winding-up, dissolution, administration or re-organisation or for the
appointment of a liquidator, receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all of its
revenues and assets other than where any such legal proceedings in respect of
the Ultimate Parent, the Parent, such Borrower, such Material Subsidiary or (for
the purposes of Clause 3.5 (Vanilla Certain Funds Period)
only) the Merger Sub either (a)(i) do not relate to the appointment of an
administrator and (ii) are stayed or discharged within 30 days from their
commencement or (b) relate to a solvent liquidation or dissolution set forth
under paragraph (d) of Clause 25.8 (Mergers).
|
27.8
|
Execution
or Distress
|
Any
execution, distress or attachment is levied against, or an encumbrancer takes
possession of, the whole or any part of, the property, undertaking or assets of
the Parent, any Borrower, any Obligor which is a Material Subsidiary or (for the
purposes of Clause 3.5 (Vanilla Certain Funds Period)
only) the Merger Sub, having an aggregate value of more than £35 million (or its
equivalent in other currencies) and the same is not discharged within 30
days.
|
27.9
|
Similar
Events
|
Any event
occurs which, under the laws of any jurisdiction, has a similar or analogous
effect to any of those events mentioned in Clause 27.6 (Insolvency), 27.7 (Winding-up) or
Clause 27.8 (Execution or
Distress).
|
27.10
|
Repudiation
|
The
Ultimate Parent, the Parent or any Obligor repudiates any of the Finance
Documents to which it is party.
|
27.11
|
Illegality
|
Save as
provided in the Reservations, at any time it is or becomes unlawful for the
Ultimate Parent, the Parent or any Obligor to perform or comply with any or all
of its obligations under any of the Finance Documents to which it is party or
any of the obligations of the Ultimate Parent, the Parent or any Obligor under
any of the Finance Documents to which it is party are not or cease to be legal,
valid and binding except as contemplated by the Reservations and, if capable of
remedy, is not remedied within 10 Business Days of the earlier of the Ultimate
Parent, the Parent or such Obligor becoming aware of the relevant illegality and
the Facility Agent having given notice of the same to the Borrower.
|
27.12
|
Intercreditor
Default
|
Any
member of the Group which is party to the Group Intercreditor Agreement or the
HYD Intercreditor Agreement fails to comply with its obligations under it and
such failure, if capable of remedy, is not remedied within 30 days of the
earlier of such member of the Group becoming aware of the relevant failure to
comply and the Facility Agent having given notice of the same to the
Parent.
|
27.13
|
Revocation
of Necessary Authorisations
|
Any
Necessary Authorisation is revoked and where such revocation is reasonably
likely to have a Material Adverse Effect, is not replaced within 10 Business
Days.
|
27.14
|
Material
Adverse Effect
|
Any event
or circumstance occurs which would have a Material Adverse Effect.
|
27.15
|
Material
Proceedings
|
Any
litigation, arbitration or administrative proceeding of or before any court,
arbitral body, or agency is commenced against any member of the Group, which is
reasonably likely to be adversely determined and which, if adversely determined,
is reasonably likely to have a Material Adverse Effect.
|
27.16
|
Change
of Ownership
|
| (a) |
After
consummation of the Merger and implementation of each of Steps 1 and
2 set out in the page headed “Combination of NTL and
Telewest” of the Steps Paper, the Parent, the Company, TCN or any
of the Obligors are not direct or indirect wholly-owned Subsidiaries of
the Ultimate
Parent.
|
| (b) |
After
implementation of each of Steps 3 to 10 set out in the pages headed “Post Combination Restructuring
– Second Alternative (Structure 2)” of the Steps
Paper:
|
| (i) | the Parent is not a direct or indirect wholly owned subsidiary of the Ultimate Parent; | ||
| (ii) | the Company ceases to be a direct wholly-owned Subsidiary of the Parent; or |
| (iii) | any Obligor (other than the Parent and the Company) ceases to be a direct or indirect wholly-owned Subsidiary of the Company. |
|
27.17
|
Acceleration
|
Subject
to Clauses 27.19 (Vanilla
Clean-up Period) and 27.20 (Baseball Clean-up Period)
below, upon the occurrence of an Event of Default and while the same is
continuing at any time thereafter, the Facility Agent may (and, if so instructed
by an Instructing Group, shall) by written notice to the Company:
| (a) |
declare
all or any part of the Outstandings to be immediately due and payable
(whereupon the same shall become so payable together with accrued interest
thereon and any other sums then owed by any Obligor under the Finance
Documents) or declare all or any part of the Outstandings to be due and
payable on demand of the Facility Agent;
and/or
|
| (b) |
require
the Borrowers to procure that the Outstanding L/C Amount under each
Documentary Credit is and all Ancillary Facility Outstandings are promptly
reduced to zero and/or provide cash collateral therefor by deposit in such
interest bearing account as the Facility Agent may specify for each
Documentary Credit/Ancillary Facility in an amount specified by the
Facility Agent and in the currency of such Documentary Credit/Ancillary
Facility (whereupon the Borrower shall do so) but no greater than the
amount outstanding under such Documentary Credit/Ancillary Facility;
and/or
|
| (c) |
declare
that any unutilised portion of the Facilities shall be cancelled,
whereupon the same shall be cancelled and the corresponding Commitments of
each Lender shall be reduced to zero;
and/or
|
| (d) |
exercise
or direct the Security Trustee to exercise any rights and remedies
(including any right to demand cash collateral by deposit in such
interest-bearing account as the Facility Agent may specify) to which the
Facility Agent, the Security Trustee or the Lenders may be
entitled;
|
provided that, notwithstanding
anything to the contrary contained above in this Clause 27.18, upon the
occurrence of any Event of Default listed in Clauses 27.9 (Similar Events) or 27.21
(US Obligors) in
relation to any US Obligor, all or any part of the Outstandings shall be
immediately due and payable (whereupon the same shall become so payable together
with accrued interest thereon and any other sums then owed by any Obligor under
the Finance Documents), any unutilised portion of the Facilities shall be
immediately cancelled and the corresponding Commitments of each Lender shall be
reduced to zero and the Facility Agent may exercise or direct the Security
Trustee to exercise any rights and remedies (including any right to demand cash
collateral by deposit in such interest-bearing account as the Facility Agent may
specify) to which the Facility Agent, the Security Trustee or the Lenders may be
entitled.
|
27.18
|
Repayment
on Demand
|
If,
pursuant to paragraph (a) of Clause 27.17 (Acceleration), the Facility
Agent declares all or any part of the Outstandings to be due and payable on
demand of the Facility Agent, then, and at any time thereafter, the Facility
Agent may (and, if so instructed by an Instructing Group, shall) by written
notice to the Company:
| (a) |
require
repayment of all or the relevant part of the Outstandings on such date as
it may specify in such notice (whereupon the same shall become due and
payable on such date together with accrued interest thereon and any other
sums then owed by the Parent or any Obligor under the Finance Documents)
or withdraw its declaration with effect from such date as it may specify
in such notice;
and/or
|
| (b) |
select
as the duration of any Interest Period or Term which begins whilst such
declaration remains in effect a period of 6 months or
less.
|
|
27.19
|
Vanilla
Clean-Up Period
|
If,
during the Vanilla Clean-up Period, any matter or circumstance exists in respect
of any member of the Telewest Group which would, but for the provisions of this
Clause 27.19, constitute a breach of any representation under
Clause 21 (Representations and
Warranties), the breach of any covenant specified in Clauses 24.10
(Pension Plans), 25.2
(Negative Pledge), 25.3
(Loans and Guarantees),
25.4 (Financial
Indebtedness), 25.8 (Mergers), 25.9 (Joint Ventures), 25.10 (Transactions with Affiliates)
and 25.12 (Limitations on
Hedging) or an Event of Default by reason of Clause 27.5 (Cross Default), then such
misrepresentation, breach of covenant or Event of Default shall not give rise to
a Default or Event of Default unless:
| (a) |
NTL
or any of its Subsidiaries (excluding for these purposes any member of the
Telewest Group) has procured or specifically approved a breach of such
representations or covenants by a member of the Telewest Group;
or
|
| (b) |
the
matter or circumstance constitutes a Material Adverse Effect;
or
|
| (c) |
such
matter or circumstance continues to exist after the expiry of the Vanilla
Clean-up Period;
or
|
| (d) |
the
breach is capable of remedy and NTL or the relevant member of the Telewest
Group is aware of the relevant circumstances at the time but fails to take
appropriate steps to remedy the
same,
|
provided
that any matter contained in this Clause 27.19 shall be without prejudice
to the rights of the Lender in respect of any breach of representation, covenant
or default which continues to exist or arises after the expiry of the Vanilla
Clean-Up Period.
|
27.20
|
Baseball
Clean-Up Period
|
If,
during the Baseball Clean-up Period, any matter or circumstance exists in
respect of any member of the Baseball Group which would, but for the provisions
of this Clause 27.20, constitute a breach of any representation under
Clause 21 (Representations and
Warranties), the breach of any covenant specified in Clauses 24.10
(Pension Plans), 25.2
(Negative Pledge), 25.3
(Loans and Guarantees),
25.4 (Financial
Indebtedness), 25.8 (Mergers), 25.9 (Joint Ventures), 25.10 (Transactions with Affiliates)
and 25.12 (Limitations on
Hedging) or an Event of Default by reason of Clause 27.5 (Cross Default), then such
misrepresentation, breach of covenant or Event of Default shall not give rise to
a Default or Event of Default unless:
| (a) |
the
Ultimate Parent or any of its Subsidiaries (excluding for these purposes
any member of the Baseball Group) has procured or specifically approved a
breach of such representations or covenants by a member of the Baseball
Group;
or
|
| (b) |
the
matter or circumstance constitutes a Material Adverse Effect;
or
|
| (c) |
such
matter or circumstance continues to exist after the expiry of the Baseball
Clean-up Period;
or
|
| (d) |
the
breach is capable of remedy and the Baseball Bidcos are aware of the
relevant circumstances at the time but fail to take appropriate steps to
remedy the
same,
|
provided
that any matter contained in this Clause 27.20 shall be without prejudice
to the rights of the Lender in respect of any breach of representation, covenant
or default which continues to exist or arises after the expiry of the Baseball
Clean-Up Period.
|
27.21
|
US
Obligors
|
Notwithstanding
Clause 27.17 (Acceleration), if any US
Obligor shall commence a voluntary case concerning itself under the US
Bankruptcy Code, or an involuntary case is commenced against any US Obligor and
the petition is not controverted within 10 days, or is not dismissed within 60
days, after commencement of the case, or a custodian (as defined in the US
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of any US Obligor, or any order of relief or other order
approving any such case or proceeding is entered, the Facilities shall cease to
be available to such US Obligor, all Advances outstanding to such US Obligor
shall become immediately due and payable and such US Obligor shall be required
to provide cash cover in respect of all Documentary Credits issued for its
account in each case automatically and without any further action by any party
hereto.
|
28.
|
|
28.1
|
Consequences
of Non-Payment
|
If any
sum due and payable by the Parent or any Obligor under this Agreement is not
paid on the due date therefor in accordance with the provisions of
Clause 33 (Payments) or if any sum due
and payable by an Obligor pursuant to a judgment of any court in connection with
this Agreement is not paid on the date of such judgment, the period beginning on
such due date or, as the case may be, the date of such judgment and ending on
the Business Day on which the obligation of such Obligor to pay the Unpaid Sum
is discharged shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such period (which
shall be a Business Day) and the duration of each of which shall (except as
otherwise provided in this Clause 28) be selected by the Facility
Agent.
|
28.2
|
Default
Rate
|
During
each such period relating thereto as is mentioned in Clause 28.1 (Consequences of Non-Payment)
an Unpaid Sum shall bear interest at the rate per annum which is the sum from
time to time of 1%, the Applicable Margin (provided that if any Unpaid Sum is
not directly referable to a particular Facility the Applicable Margin shall be
the Revolving Facility Margin (or, following the Final Maturity Date for the
Revolving Facility, the Secondary Revolving Facility Margin), the Associated
Costs Rate at such time and EURIBOR or LIBOR, as the case may be, on the
Quotation Date therefor, provided that:
| (a) |
if,
for any such period, EURIBOR or LIBOR, as the case may be, cannot be
determined, the rate of interest applicable to each Lender’s portion of
such Unpaid Sum shall be the rate per annum which is the sum of 1%, the
Applicable Margin, (as aforesaid), and the Associated Costs Rate at such
time and the rate per annum that shall be notified to the Facility Agent
by such Lender as soon as practicable after the beginning of such period
as being that which expresses as a percentage rate per annum the cost to
such Lender of funding from whatever sources it may reasonably select its
portion of such Unpaid Sum during such period;
and
|
| (b) |
if
such Unpaid Sum is all or part of an Advance which became due and payable
on a day other than the last day of an Interest Period or Term relating
thereto, the first Interest Period applicable to it shall be of a duration
equal to the unexpired portion of that Interest Period or Term and the
rate of interest applicable thereto from time to time during such Interest
Period shall be that which exceeds by 1% the rate which would have been
applicable to it had it not so fallen
due.
|
|
28.3
|
Maturity
of Default Interest
|
Any
interest which shall have accrued under Clause 28.2 (Default Rate) in respect of
an Unpaid Sum shall be due and payable and shall be paid by the Obligor owing
such sum at the end of the period by reference to which it is calculated or on
such other dates as the Facility Agent may specify by written notice to such
Obligor.
|
28.4
|
Construction
of Unpaid Sum
|
Any
Unpaid Sum shall (for the purposes of this Clause 28 (Default Interest),
Clause 18 (Increased
Costs), Clause 31 (Borrowers’ Indemnities) and
Schedule 6 (Associated Costs
Rate)) be treated as an advance and accordingly in those provisions the
term “Advance” includes any Unpaid Sum and the term “Interest Period” and
“Term”, in relation to an Unpaid Sum, includes each such period relating thereto
as is mentioned in Clause 28.1 (Consequences of
Non-Payment).
|
29.1
|
Guarantee
|
With
effect from the Merger Closing Date or if later, the date on which it accedes to
this Agreement in such capacity, subject to Clause 29.9 (Limitation of Telewest Group
Guarantees) and Clause 29.12 (Limitation of Baseball Group
Guarantees):
| (a) |
each
Guarantor irrevocably and unconditionally guarantees, jointly and
severally, to each of the Finance Parties the due and punctual payment by
each of the Borrowers of all sums payable by it under each of the Finance
Documents (other than the C Facility Liabilities) and agrees that promptly
on demand it will pay to the Facility Agent each and every sum of money
(other than the C Facility Liabilities) which any of the Borrowers is at
any time liable to pay to any Finance Party under or pursuant to any
Finance Document and which has become due and payable but has not been
paid at the time such demand is made and provided that before any such
demand is made on a Restricted Guarantor, demand for payment of the
relevant sum shall first have been made on the relevant Borrower;
and
|
| (b) |
the
Parent irrevocably and unconditionally guarantees to each of the C
Facility Lenders the due and punctual payment by the Company of all sums
payable by it under or in connection with the C Facility Liabilities and
agrees that promptly on demand it will pay to the Facility Agent each and
every sum of money due under or in connection with the C Facility
Liabilities which the Company is at any time liable to pay to the C
Facility Lenders under or pursuant to this Agreement and which has become
due and payable but has not been paid at the time such demand is
made.
|
|
29.2
|
Indemnity
|
With
effect from the Merger Closing Date, or if later, the date upon which it accedes
to this Agreement in such capacity, subject to Clause 29.9 (Limitation of Telewest Group
Guarantees) and Clause 29.12 (Limitation of Baseball Group
Guarantees):
| (a) |
each
Guarantor (other than a Restricted Guarantor) irrevocably and
unconditionally agrees, jointly and severally, as primary obligor and not
only as surety, to indemnify and hold harmless each Finance Party on
demand by the Facility Agent from and against any loss incurred by such
Finance Party as a result of any of the obligations of the Borrowers under
or pursuant to any Finance Document (other than in respect of the C
Facility Liabilities) being or becoming void, voidable, unenforceable or
ineffective as against any Borrower for any reason whatsoever (whether or
not known to that Finance Party or any other person) the amount of such
loss being the amount which the Finance Party suffering it would otherwise
have been entitled to recover from such Borrower;
and
|
| (b) |
the
Parent irrevocably and unconditionally agrees as primary obligor and not
only as surety, to indemnify and hold harmless the C Facility Lenders on
demand by the Facility Agent from and against any loss incurred by such C
Facility Lender as a result of any of the obligations of the Company under
or in connection with the C Facility Liabilities being or becoming void,
voidable, unenforceable or ineffective as against the Company for any
reason whatsoever (whether or not known to that C Facility Lender or any
other person) the amount of such loss being the amount which the C
Facility Lender suffering it would otherwise have been entitled to recover
from the
Company.
|
|
29.3
|
Continuing
and Independent Obligations
|
The
obligations of each Guarantor under this Agreement shall constitute and be
continuing obligations which shall not be released or discharged by any
intermediate payment or settlement of all or any of the obligations of each of
the Borrowers under the Finance Documents, shall continue in full force and
effect until the unconditional and irrevocable payment and discharge in full of
all amounts owing by each of the Borrowers under each of the Finance Documents
and are in addition to and independent of, and shall not prejudice or merge
with, any other security (or right of set-off) which any Finance Party may at
any time hold in respect of such obligations or any of them.
|
29.4
|
Avoidance
of Payments
|
Where any
release, discharge or other arrangement in respect of any obligation of any
Borrower, or any Security held by any Finance Party therefor, is given or made
in reliance on any payment or other disposition which is avoided or must be
repaid (whether in whole or in part) in an insolvency, liquidation or otherwise
and whether or not any Finance Party has conceded or compromised any claim that
any such payment or other disposition will or should be avoided or repaid (in
whole or in part), the provisions of this Clause 29 shall continue as if
such release, discharge or other arrangement had not been given or
made.
|
29.5
|
Immediate
Recourse
|
None of
the Finance Parties shall be obliged, before exercising or enforcing any of the
rights conferred upon them in respect of the Guarantors by this Agreement or by
Law, to seek to recover amounts due from any Borrower or to exercise or enforce
any other rights or Security any of them may have or hold in respect of any of
the obligations of any Borrower under any of the Finance Documents save that no
demand for any payment may be made on any Restricted Guarantor unless such
demand has first been made on the relevant Borrower.
|
29.6
|
Waiver
of Defences
|
Neither
the obligations of the Guarantors contained in this Agreement nor the rights,
powers and remedies conferred on the Finance Parties in respect of the
Guarantors by this Agreement or by Law shall be discharged, impaired or
otherwise affected by:
| (a) |
the
winding-up, dissolution, administration or reorganisation of any Borrower
or any other person or any change in the status, function, control or
ownership of any Borrower or any such
person;
|
| (b) |
any
of the obligations of any Borrower or any other person under any Finance
Document or any Security held by any Finance Party therefor being or
becoming illegal, invalid, unenforceable or ineffective in any
respect;
|
| (c) |
any
time or other indulgence being granted to or agreed (i) to or with any
Borrower or any other person in respect of its obligations or (ii) in
respect of any security granted under any Finance
Documents;
|
| (d) |
unless
otherwise agreed, any amendment to, or any variation, waiver or release
of, any obligation of, or any Security granted by, any Borrower or any
other person under any Finance
Document;
|
| (e) |
any
total or partial failure to take, or perfect, any Security proposed to be
taken in respect of the obligations of any Borrower or any other person
under the Finance
Documents;
|
| (f) |
any
total or partial failure to realise the value of, or any release,
discharge, exchange or substitution of, any security held by any Finance
Party in respect of any Borrower’s obligations under any Finance Document;
or
|
| (g) |
any
other act, event or omission which might operate to discharge, impair or
otherwise affect any of the obligations of any of the Guarantors under
this Agreement or any of the rights, powers or remedies conferred upon the
Finance Parties or any of them by this Agreement or by
Law.
|
|
29.7
|
No
Competition
|
Until all
amounts which may become payable by the Borrowers under or in connection with
the Finance Documents have been paid in full, any rights which any Guarantor may
at any time have by way of contribution or indemnity in relation to any of the
obligations of the Borrowers under any of the Finance Documents or to claim or
prove as a creditor of any Borrower or any other person or its estate in
competition with the Finance Parties or any of them, shall be exercised by such
Guarantor only if and to the extent that the Facility Agent so requires and in
such manner and upon such terms as the Facility Agent may specify and each
Guarantor shall hold any moneys, rights or security held or received by it as a
result of the exercise of any such rights on trust for the Facility Agent for
application in or towards payment of any sums at any time owed by the Borrowers
under any of the Finance Documents as if such moneys, rights or security were
held or received by the Facility Agent under this Agreement.
|
29.8
|
Appropriation
|
To the
extent any Finance Party receives any sum from any Guarantor in respect of the
obligations of any of the other Obligors under any of the Finance Documents
which is insufficient to discharge all sums which are then due and payable in
respect of such obligations of such other Obligors, such Finance Party shall not
be obliged to apply any such sum in or towards payment of amounts owing by such
other Obligor under any of the Finance Documents, and any such sum may, in the
relevant Finance Party’s discretion, be credited to a suspense or impersonal
account and held in such account pending the application from time to time (as
the relevant Finance Party may think fit) of such sums in or towards the
discharge of such liabilities owed to it by such other Obligor under the Finance
Documents as such Finance Party may select provided that such Finance Party
shall promptly make such application upon receiving sums sufficient to discharge
all sums then due and payable to it by such other Obligor under the Finance
Documents.
|
29.9
|
Limitation
of Telewest Group Guarantees
|
The
guarantees and indemnities provided by any member of the Telewest Group
hereunder shall not extend to any sums payable under any of the Finance
Documents relating to the B2 Facility, B3 Facility, B4 Facility, B8 Facility, B9
Facility or B10 Facility or any sums emanating therefrom, except to the extent
that such members of the Telewest Group have complied with paragraph (d) of
Clause 3.3 (Vanilla Conditions
Subsequent).
|
29.10
|
Limitation
of Liabilities of United States
Guarantors
|
Each
Restricted Guarantor and each of the Finance Parties (by its acceptance of the
benefits of the guarantee under this Clause 29) hereby confirms its
intention that this guarantee should not constitute a fraudulent transfer or
conveyance for the purposes of any bankruptcy, insolvency or similar law, the
United States Uniform Fraudulent Conveyance Act or any similar Federal, state or
foreign law. To effectuate the foregoing intention, each Restricted
Guarantor and each of the Finance Parties (by its acceptance of the benefits of
the guarantee under this Clause 29) hereby irrevocably agrees that its
obligations under this Clause 29 shall be limited to the maximum amount as
will, after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Restricted Guarantor that are relevant under such
laws, and after giving effect to any rights to contribution pursuant to any
agreement providing for an equitable contribution among such Restricted
Guarantor and the other Guarantors, result in the obligations of such Restricted
Guarantor in respect of such maximum amount not constituting a fraudulent
transfer or conveyance.
|
29.11
|
Droit
de Discussion and Droit de Division
|
| (a) |
Any
right which at any time any Guarantor may have under the existing or
future laws of Jersey whether by virtue of the droit de discussion or
otherwise to require that recourse be had to the assets of any other
person before any claim is enforced against such Guarantor in respect of
the obligations assumed by such Guarantor under or in connection with
any Finance Document is hereby
waived.
|
| (b) |
Any
right which at any time any Guarantor may have under the existing or
future laws of Jersey whether by virtue of the droit de division or
otherwise to require that any liability under any guarantee or indemnity
given in or in connection with any Finance Document be divided or
apportioned with any other person or reduced in any manner whatsoever is
hereby
waived.
|
|
29.12
|
Limitation
of Baseball Group Guarantees
|
| (a) |
The
guarantees and indemnities provided by any member of the Baseball Group
hereunder shall not extend to any sums payable under any of the Finance
Documents relating to the B5 Facility, B6 Facility, B11 Facility or B12
Facility or any sums emanating therefrom, to the extent that such
guarantees or indemnities would constitute unlawful financial assistance
under Sections 151 to 158 of the Act with respect to such B5 Facility, B6
Facility, B11 Facility or B12
Facility.
|
| (b) |
Each
of the Finance Parties and the Obligors agree that for the purposes of
each of the Security Documents to which any member of the Baseball Group
is a party and in relation to any security granted by any member of the
Baseball Group thereunder, the definition of “Secured Obligations” (which,
in turn, refers to the definitions of “Security Trustee Liabilities”,
“Senior Liabilities” and “Hedging Liabilities”) shall, in each case, not
extend to any sum due and payable under any of the Finance Documents to
the extent that, if it were so extended, the Security (or any part
thereof) created by any provision of the Security Documents would be
unlawful or prohibited by any applicable
law.
|
|
30.
|
|
30.1
|
Appointment
of the Agents
|
| (a) |
Each
of the other Finance Parties appoints the Facility Agent to act as its
agent under and in connection with the Finance Documents and authorises
the Facility Agent to exercise the rights, powers, authorities and
discretions specifically delegated to it under or in connection with the
Finance Documents together with any other incidental rights, powers,
authorities and
discretions.
|
| (b) |
Each
of the other Finance Parties appoints the US Paying Agent to act as its
agent under and in connection with the Finance
Documents.
|
|
30.2
|
Appointment
of the Administrative Agent
|
Each of
the other Finance Parties appoints the Administrative Agent to act as its agent
under and in connection with the Finance Documents.
|
30.3
|
Duties
of the Facility Agent/US Paying
Agent
|
| (a) |
The
Facility Agent and/or the US Paying Agent, as applicable, shall promptly
inform each Lender of the contents of any notice or document received by
it in its capacity as Facility Agent from the Parent or any of the
Obligors under the Finance
Documents.
|
| (b) |
The
Facility Agent shall promptly notify the Lenders of the occurrence of any
Event of Default or any default by an Obligor in the due performance of or
compliance with its obligations under any Finance Document upon becoming
aware of the
same.
|
| (c) |
If
so instructed by an Instructing Group, the Facility Agent shall refrain
from exercising any power or discretion vested in it as agent under any
Finance
Document.
|
| (d) |
The
duties of the Facility Agent and the US Paying Agent, as the case may be,
under the Finance Documents are, save to the extent otherwise expressly
provided, solely mechanical and administrative in
nature.
|
|
30.4
|
Role
of the Bookrunners, the Arrangers and the Administrative
Agent
|
Except as
specifically provided in the Finance Documents, none of the Bookrunners, the
Arrangers, or the Administrative Agent shall have any obligations of any kind to
any other party under or in connection with any Finance Document.
|
30.5
|
No
Fiduciary Duties
|
| (a) |
Nothing
in the Finance Documents constitutes the Agents or any of the Arrangers as
a trustee or fiduciary of any other
person.
|
| (b) |
Neither
the Agents nor any of the Arrangers shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for its
own
account.
|
|
30.6
|
Business
with the Group
|
Any of
the Agents and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member of the
Group.
|
30.7
|
Discretion
of the Agents
|
| (a) |
The
Agents may rely
on:
|
| (i) | any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and | ||
| (ii) | any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify. |
| (b) |
The
Agents may assume, unless it has received notice to the contrary in its
capacity as agent for the Lenders,
that:
|
| (i) | no Default has occurred; | ||
| (ii) | any right, power, authority or discretion vested in this Agreement upon any party, the Lenders or an Instructing Group has not been exercised; and |
| (iii) | any notice or request made by the Obligors’ Agent is made on behalf of and with the consent and knowledge of the Parent and all the Obligors. |
| (c) |
The
Agents may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
| (d) |
The
Agents may act in relation to the Finance Documents through its personnel
and
agents.
|
| (e) |
The
Facility Agent may execute on behalf of any L/C Bank any Documentary
Credit issued under this
Agreement.
|
|
30.8
|
Instructing
Group’s Instructions
|
| (a) |
Unless
a contrary indication appears in a Finance Document, the Facility Agent
(or the US Paying Agent, as applicable) shall (i) act in accordance
with any instructions given to it by an Instructing Group or RCF Facility
Instructing Group, as applicable (or, if so instructed by an Instructing
Group or RCF Facility Instructing Group, as applicable, refrain from
acting or exercising any right, power, authority or discretion vested in
it as Facility Agent) and (ii) shall not be liable to any Finance
Party for any act (or omission) if it acts (or refrains from taking any
action) in accordance with such an instruction of an Instructing
Group.
|
| (b) |
Unless
a contrary indication appears in a Finance Document, any instructions
given by (i) an Instructing Group will be binding on all the Finance
Parties or (ii) an RCF Facility Instructing Group will be binding on
all the Lenders under the Revolving
Facility.
|
| (c) |
The
Facility Agent (or the US Paying Agent, as applicable) may refrain from
acting in accordance with the instructions of an Instructing Group, an RCF
Facility Instructing Group, or, if appropriate, the Lenders until it has
received such security or collateral as it may require for any cost, loss
or liability which it may incur in complying with such
instructions.
|
| (d) |
In
the absence of instructions from an Instructing Group, a RCF Facility
Instructing Group, or, if appropriate, the Lenders, the Facility Agent (or
the US Paying Agent, as applicable) may act (or refrain from taking
action) as it considers to be in the best interests of the
Lenders.
|
| (e) |
None
of the Agents shall be authorised to act on behalf of a Lender in any
legal or arbitration proceedings relating to any Finance Document without
first obtaining the Lender’s consent to do
so.
|
|
30.9
|
No
Responsibility
|
None of
the Agents or the Arrangers shall be:
| (a) |
responsible
for the adequacy, accuracy and/or completeness of any information (whether
oral or written) supplied by any Finance Party or an Obligor or any other
person in or in connection with any Finance Document, including the
Information Memoranda, the Agreed Business Plan and any Budget;
or
|
| (b) |
responsible
for the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document or any other agreement, arrangement or document
entered into, made or executed in anticipation of or in connection with
any Finance
Document.
|
|
30.10
|
Exclusion
of Liability
|
| (a) |
Without
limiting paragraph (b) of this Clause, the Agents will not be liable
to any Finance Party for any action taken by it under or in connection
with any Finance Document, unless directly caused by its negligence or
wilful
misconduct.
|
| (b) |
Each
of the Lenders agrees that it will not take any proceedings, or assert or
seek to assert any claim, against any officer, employee or agent of either
of the Agents in respect of any claim it might have against the Facility
Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and agrees that any
officer, employee or agent of the Facility Agent may enforce this
provision.
|
| (c) |
The
Facility Agent will not be liable for any failure to notify any person of
any matter referred to in Clause 14.10 (Notification) or any
delay (or any related consequences) in crediting an account with an amount
required under the Finance Documents to be paid by it if it has taken all
reasonable steps to comply with Clause 14.10 (Notification) and taken
all necessary steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing or
settlement system used by it for that
purpose.
|
|
30.11
|
Lender’s
Indemnity
|
Each
Lender shall (in its relevant Proportion (as determined at all times for these
purposes in accordance with paragraph (c) of the definition of
“Proportion”) indemnify the Agents from time to time on demand by the Agents
against any cost, loss or liability incurred by such Agent (otherwise than by
reason of its negligence or wilful misconduct) in acting as an Agent under the
Finance Documents (unless it has been reimbursed therefor by an Obligor pursuant
to the terms of the Finance Documents).
|
30.12
|
Resignation
|
| (a) |
The
Facility Agent or the US Paying Agent may resign and appoint one of its
Affiliates acting through an office in the United Kingdom (or, in the case
of the US Paying Agent, acting through an office in the State of New York)
as successor Agent by giving notice to the Lenders and the
Company.
|
| (b) |
The
Facility Agent or the US Paying Agent may resign without having designated
a successor as agent under paragraph (a) above (and shall do so if so
required by an Instructing Group) by giving notice to the Lenders and the
Company, in which case an Instructing Group may appoint a successor
Facility Agent (acting through an office in the United Kingdom), or a
successor US Paying Agent (acting through an office in the State of New
York), approved by the Company or the US Borrower, acting
reasonably. If an Instructing Group has not appointed a
successor Facility Agent or successor US Paying Agent in accordance with
this paragraph (b) within 30 days after notice of resignation was
given, the Facility Agent may appoint a successor Facility Agent (acting
through an office in the United Kingdom) and/or the US Paying Agent may
appoint a successor US Paying Agent (acting through an office in the State
of New York), approved by the Company, acting
reasonably.
|
| (c) |
The
retiring Facility Agent or US Paying Agent, as applicable shall, at the
Borrowers’ cost, make available to its successor such documents and
records and provide such assistance as its successor may reasonably
request for the purposes of performing its functions as Facility Agent or
US Paying Agent, as applicable under the Finance
Documents.
|
| (d) |
The
resignation notice of the Facility Agent or the US Paying Agent shall only
take effect upon the appointment of a successor Facility Agent or US
Paying Agent, as
applicable.
|
| (e) |
Upon
the appointment of a successor, the retiring Facility Agent or US Paying
Agent, as applicable shall be discharged from any further obligation in
respect of the Finance Documents but shall remain entitled to the benefit
of this Clause 30. The Facility Agent’s successor or US
Paying Agent’s successor, as applicable, and each of the other parties to
this Agreement shall have the same rights and obligations amongst
themselves as they would have had if such successor Facility Agent or
successor US Paying Agent, as applicable had been an original party as
Facility Agent or as US Paying Agent, as the case may
be.
|
| (f) |
Unless
otherwise agreed between the Administrative Agent and the Borrower, the
Administrative Agent shall automatically resign (and no successor shall
need to be appointed) on the day upon which it ceases to be a party to
this Agreement in the capacity as a
Lender.
|
|
30.13
|
Confidentiality
|
| (a) |
The
Facility Agent (in acting as agent for the Finance Parties), the US Paying
Agent (in acting as US paying agent for the Lenders to the US Borrower)
and the Administrative Agent (in acting as agent for the Lenders) shall be
regarded as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or
departments.
|
| (b) |
If
information is received by another division or department of the Facility
Agent, US Paying Agent or the Administrative Agent it may be treated as
confidential to that division or department and the Facility Agent, US
Paying Agent or the Administrative Agent, as the case may be, shall not be
deemed to have notice of
it.
|
| (c) |
Notwithstanding
any other provision of any Finance Document to the contrary, the Finance
Parties are not obliged to disclose to any other person (i) any
confidential information or (ii) any other information if the disclosure
would, or might in its reasonable opinion, constitute a breach of any
Law.
|
| (d) |
Notwithstanding
any other provision of any Finance Document, the parties (and each
employee, representative or other agent of the parties) may disclose to
any and all persons, without limitation of any kind, the tax treatment and
any facts that may be relevant to the tax structure of the transaction,
provided, however, that no party (and no employee, representative, or
other agent thereof) shall disclose any other information that is not
relevant to understanding the tax treatment and tax structure of the
transaction (including the identity of any party and any information that
could lead another to determine the identity of any party), or any other
information to the extent that such disclosure could reasonably result in
a violation of any applicable securities
law.
|
|
30.14
|
Facility
Office
|
Each of
the Agents may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received not less
than 5 Business Days’ prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.
|
30.15
|
Lenders’
Associated Costs Details
|
To the
extent applicable, each Lender shall supply the Facility Agent and/or the US
Paying Agent, as applicable, with any information required by the Facility Agent
in order to calculate the Associated Costs Rate in accordance with Schedule 6
(Associated Costs
Rate).
|
30.16
|
Credit
Appraisal by the Lenders
|
Without
affecting the responsibility of the Parent or any Obligor for information
supplied by it or on its behalf in connection with any Finance Document, each
Lender confirms to each of the Agents, the Bookrunners and the Arrangers that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
| (a) |
the
financial condition, status and nature of each member of the
Group;
|
| (b) |
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance
Document;
|
| (c) |
whether
that Lender has recourse, and the nature and extent of that recourse,
against any party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any
Finance Document;
and
|
| (d) |
the
adequacy, accuracy and/or completeness of the Information Memoranda, the
Agreed Business Plan and each Budget and any other information provided by
the Agents, the Bookrunners, the Arrangers or by any other person under or
in connection with any Finance Document, the transactions contemplated by
the Finance Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection
with any Finance
Document.
|
|
30.17
|
Deduction
from Amounts Payable by the Agents
|
If any
amount is due and payable by any party to the Facility Agent, the US Paying
Agent or the Administrative Agent under any Finance Document the Facility Agent,
the US Paying Agent or the Administrative Agent, as the case may be, may, after
giving notice to that party, deduct an amount not exceeding that amount from any
payment to that party which the Facility Agent, the US Paying Agent or the
Administrative Agent would otherwise be obliged to make under the Finance
Documents and apply the amount deducted in or towards satisfaction of the amount
owed. For the purposes of the Finance Documents that party shall be
regarded as having received such payment without any such
deduction.
|
30.18
|
Obligors’
Agent
|
| (a) |
The
Parent and each Obligor (other than the Company and the US Borrower)
irrevocably authorises the Company to act on its behalf as its agent in
relation to the Finance Documents and irrevocably
authorises:
|
| (i) |
the Company on its behalf to
supply all information concerning itself, its financial condition and
otherwise to the relevant persons contemplated under this Agreement and to
give all notices and instructions to execute on its behalf any Finance
Document and to enter into any agreement in connection with the Finance
Documents notwithstanding that the same may affect the Parent or such
Obligor, without further reference to or the consent of the Parent or such
Obligor; and
|
||
| (ii) | each Finance Party to give any notice, demand or other communication to be given to or served on the Parent or such Obligor pursuant to the Finance Documents to the Company on its behalf, |
and in
each such case the Parent or such Obligor will be bound thereby as though the
Parent or such Obligor itself had supplied such information, given such notice
and instructions, executed such Finance Document and agreement or received any
such notice, demand or other communication.
| (b) |
Every
act, omission, agreement, undertaking, settlement, waiver, notice or other
communication given or made by the Obligors’ Agent under any Finance
Document, or in connection with this Agreement (whether or not known to
the Parent or any other Obligor, as the case may be, and whether occurring
before or after such person became party to this Agreement), shall be
binding for all purposes on the Parent and all other Obligors (other than
the US Borrower) as if the Parent or the other Obligors (other than the US
Borrower) had expressly made, given or concurred with the
same. In the event of any conflict between any notices or other
communications of the Obligors’ Agent and the Parent or any other Obligor
(other than the US Borrower), those of the Obligors’ Agent shall
prevail.
|
|
30.19
|
Co-operation
with the Agents
|
Each
Lender and each Obligor will co-operate with each of the Agents to complete any
legal requirements imposed on the Agents in connection with the performance of
its duties under this Agreement and shall supply any information requested by
the Agents in connection with the proper performance of those duties provided
that neither the Parent nor any Obligor shall be under any obligation to provide
any information the supply of which would be contrary to any confidentiality
obligation binding on any member of the Group or prejudice the retention of
legal privilege in such information and provided further that neither the Parent
nor any Obligor shall (and the Company shall procure that no member of the Bank
Group shall) be able to deny the Agents any such information by reason of it
having entered into a confidentiality undertaking which would prevent
it from disclosing, or be able to claim any legal privilege in respect of, any
financial information relating to itself or the Group.
|
30.20
|
“Know
your client” checks
|
Nothing
in this Agreement shall oblige the either of the Agents or the Arrangers to
carry out any “know your client” or other applicable anti-money laundering
checks in relation to the identity of any person on behalf of any Lender and
each Lender confirms to the each of the Agents, the Bookrunners and the
Arrangers that it is solely responsible for any such checks it is required to
carry out and that it may not rely on any statement in relation to such checks
made by any other person.
|
30.21
|
US
Paying Agent
|
The
Facility Agent shall delegate to any of its affiliates or appoint one or more
agents in the US for the purposes of facilitating any payments required to be
made to the US Borrower under this Agreement (and the US Borrower has the right
to consent to such delegation). Any such delegation or appointment may be made
upon such terms and conditions (including the power to sub-delegate or appoint
any sub-agents) and subject to such restrictions as the Facility Agent and the
US Borrower may
think fit in the interests of the Finance Parties and the Facility Agent shall
not be bound to supervise, or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any such delegate,
sub-delegate, agent or sub-agent. The Facility Agent and the US
Borrower may agree, without the prior consent of any other person, such
amendments which are of an administrative or technical nature, as may be
necessary for the purposes of giving effect to any such delegation or
appointment and such amendments, once made, shall be binding on each of Finance
Parties.
|
31.1
|
General
Indemnities
|
With
effect from the Merger Closing Date, each of the Borrowers undertake, on a joint
and several basis, to indemnify:
| (a) |
each
of the Finance Parties against any out-of-pocket cost, claim, loss,
expense (including legal fees) or liability, which any of them may sustain
or incur as a consequence of the occurrence of any Default;
and
|
| (b) |
each
Lender against any out-of-pocket loss it may suffer or incur as a result
of (i) its funding or making arrangements to fund its portion of an
Advance or (ii) its issuing or making arrangements to issue a Documentary
Credit or (iii) its funding or making arrangements to fund any Ancillary
Facility made available by it, in each case requested by any Borrower
under this Agreement but not made by reason of the operation of any one or
more of the provisions of this Agreement (save as a result of such
Lender’s own gross negligence or wilful
default).
|
|
31.2
|
Break
Costs
|
| (a) |
Each
Borrower shall, within 3 Business Days of demand by a Finance Party, pay
to that Finance Party its Break Costs attributable to all or any part of
any Advance or Unpaid Sum being paid by that Borrower on a day other than
the last day of an Interest Period or Term for that Advance or Unpaid
Sum.
|
| (b) |
Each
Lender shall, as soon as reasonably practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period or Term in which they
accrue.
|
|
32.1
|
Currency
|
Sterling
is the currency of account and payment for each and every sum at any time due
from any Obligor under this Agreement provided that:
| (a) |
each
repayment of any Outstandings or Unpaid Sum (or part of it) shall be made
in the currency in which those Outstandings or Unpaid Sum are denominated
on their due
date;
|
| (b) |
interest
shall be payable in the currency in which the sum in respect of which such
interest is payable was denominated when that interest
accrued;
|
| (c) |
each
payment in respect of costs and expenses shall be made in the currency in
which the same were incurred;
and
|
| (d) |
each
payment pursuant to Clause 17.3 (Tax Indemnity) or
Clause 18.1 (Increased Costs) shall
be made in the currency specified by the Finance Party claiming under it,
acting
reasonably.
|
|
32.2
|
Currency
Indemnity
|
If any
sum due from the Parent or any Obligor under this Agreement or any order or
judgment given or made in relation to this Agreement has to be converted from
the currency (the “first
currency”) in which the same is payable under this Agreement or under
such order or judgment into another currency (the “second currency”) for the
purpose of (a) making or filing a claim or proof against the Parent or such
Obligor, (b) obtaining an order or judgment in any court or other tribunal
or (c) enforcing any order or judgment given or made in relation to this
Agreement, each Borrower agrees, with effect from the Merger Closing Date, to
indemnify and hold harmless each of the persons to whom such sum is due from and
against any loss suffered or incurred as a result of any discrepancy between
(x) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (y) the rate
or rates of exchange at which such person may in the ordinary course of business
purchase the first currency with the second currency at the time of receipt of
the sum paid to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof.
|
33.
|
|
33.1
|
Payment
to the Facility Agent and the US Paying
Agent
|
On each
date on which this Agreement requires an amount to be paid by the Parent or any
Obligor or any of the Lenders under this Agreement, the Parent or such Obligor
or, as the case may be, such Lender shall make the same available to the
Facility Agent or, in the case of payments by the US Borrower, the US Paying
Agent by payment in same day funds (or such other funds as may for the time
being be customary for the settlement of transactions in the relevant currency)
to such account or bank as the Facility Agent or US Paying Agent, as applicable
(acting reasonably) may have specified for this purpose and any such payment
which is made for the account of another person shall be made in time to enable
the Facility Agent or US Paying Agent, as applicable to make available such
person’s portion of it to such other person in accordance with Clause 33.2
(Same Day
Funds).
|
33.2
|
Same
Day Funds
|
Save as
otherwise provided in this Agreement, each payment received by the Facility
Agent or US Paying Agent, as applicable for the account of another person shall
be made available by the Facility Agent to such other person (in the case of a
Lender, for the account of its Facility Office) for value the same day by
transfer to such account of such person with such bank in a Participating Member
State or London (or for payments in Dollars or any Optional Currency, in the
applicable financial centre) as such person shall have previously notified to
the Facility Agent or US Paying Agent, as applicable, for this
purpose.
|
33.3
|
Clear
Payments
|
Any
payment required to be made by the Parent or any Obligor under this Agreement
shall be calculated without reference to any set-off or counterclaim and shall
be made free and clear of, and without any deduction for or on account of, any
set-off or counterclaim.
|
33.4
|
Partial
Payments
|
If the
Facility Agent or US Paying Agent, as applicable, receives a payment that is
insufficient to discharge all the amounts then due and payable by the Parent or
any Obligor under the Finance Documents, the Facility Agent or US Paying Agent,
as applicable, shall, unless otherwise instructed by an Instructing Group, apply
that payment towards the obligations of that Obligor under the Finance Documents
in the following order:
| (a) |
first,
in payment in or towards payment pro rata of any unpaid
fees, costs and expenses incurred by the Facility Agent or US Paying
Agent, as applicable, and the L/C Bank under the Finance
Documents;
|
| (b) |
secondly,
in or towards payment pro rata of any accrued
interest or commission due but unpaid under any Finance
Document;
|
| (c) |
thirdly,
in or towards payment pro rata of any
principal due but unpaid under any Finance Document;
and
|
| (d) |
fourthly,
in or towards payment pro rata of any other
sum due but unpaid under the Finance
Documents,
|
and such
application shall override any appropriation made by an Obligor provided that
each C Facility Lender agrees that to the extent that (i) the net proceeds of
any enforcement of Security and (ii) any other recoveries and/or proceeds from
any Obligor, including without limitation, pursuant to a demand made under
Clause 29 (Guarantees and
Indemnity) (other than in the case of sub-paragraph (ii), such other
recoveries and/or proceeds from the Parent or the Company) are to be applied in
accordance with this Clause 33.4, such proceeds shall be applied in
accordance with this Clause 33.4 until all amounts due under the Finance
Documents (other than the C Facility Liabilities) have been discharged in
full.
|
33.5
|
Indemnity
|
Where a
sum is to be paid under the Finance Documents to the Facility Agent or US Paying
Agent, as applicable, for the account of another person, the Facility Agent or
US Paying Agent, as applicable, shall not be obliged to make the same available
to that other person (or to enter into or perform any exchange contract in
connection therewith) until it has been able to establish to its satisfaction
that it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person to whom
such sum (or the proceeds of such exchange contract) was (or were) so made
available shall on request refund the same to the Facility Agent or the US
Paying Agent, as applicable, together with an amount sufficient to indemnify and
hold harmless the Facility Agent or US Paying Agent, as applicable, from and
against any cost or loss it may have suffered or incurred by reason of its
having paid out such sum (or the proceeds of such exchange contract) prior to
its having received such sum. This indemnity shall only apply to the
Obligors with effect from the Merger Closing Date.
|
33.6
|
Notification
of Payment
|
Without
prejudice to the liability of each party to this Agreement to pay each amount
owing by it under this Agreement on the due date therefor, whenever a payment is
expected to be made by any of the Finance Parties, the Facility Agent or the US
Paying Agent, as applicable, shall give notice prior to the expected date for
such payment, notify all such Finance Parties of the amount, currency and timing
of such payment.
|
33.7
|
Business
Days
|
| (a) |
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the immediately succeeding Business Day in the same calendar
month (if there is one) or the immediately preceding Business Day (if
there is
not).
|
| (b) |
During
any extension of the due date for payment of any principal or an Unpaid
Sum under this Agreement, interest is payable on such amount at the rate
payable on the original due
date.
|
|
34.
|
|
34.1
|
Right
to Set-off
|
With
effect from the Merger Closing Date, the Parent and each of the Obligors
authorises each Lender to apply any credit balance to which the Parent or such
Obligor is entitled on any account of the Parent or such Obligor with that
Lender in satisfaction of any sum due and payable from the Parent or such
Obligor to such Lender under this Agreement but unpaid; for this purpose, each
Lender is authorised to purchase with the moneys standing to the credit of any
such account such other currencies as may be necessary to effect such
application.
|
34.2
|
No
Obligation
|
No Lender
shall be obliged to exercise any right given to it by Clause 34.1 (Right to
Set-Off).
|
35.1
|
Payments
to Finance Parties
|
If a
Finance Party (a “Recovering
Finance Party”) receives or recovers any amount from the Parent or any
Obligor other than in accordance with Clause 33 (Payments) and applies that
amount to a payment due under the Finance Documents then:
| (a) |
the
Recovering Finance Party shall, within 3 Business Days, notify details of
the receipt or recovery to the Facility
Agent;
|
| (b) |
the
Facility Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been paid had
the receipt or recovery been received or made by the Facility Agent and
distributed in accordance with Clause 33.4 (Partial Payments),
without taking account of any tax which would be imposed on the Facility
Agent in relation to the receipt, recovery or distribution;
and
|
| (c) |
the
Recovering Finance Party shall, within 3 Business Days of demand by the
Facility Agent, pay to the Facility Agent an amount (the “Sharing Payment”) equal
to such receipt or recovery less any amount which the Facility Agent
determines may be retained by the Recovering Finance Party as its share of
any payment to be made, in accordance with Clause 33.4 (Partial
Payments).
|
|
35.2
|
Redistribution
of Payments
|
The
Facility Agent shall treat the Sharing Payment as if it had been paid by the
Parent or the relevant Obligor and shall distribute it between the Finance
Parties (other than the Recovering Finance Party) in accordance with
Clause 33.4 (Partial
Payments).
|
35.3
|
Recovering
Finance Party’s Rights
|
| (a) |
On
a distribution by the Facility Agent under Clause 35.2 (Redistribution of
Payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
|
| (b) |
If
and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) above, the Parent or the relevant
Obligor shall be liable to the Recovering Finance Party for a debt equal
to the Sharing Payment which is immediately due and
payable.
|
|
35.4
|
Reversal
of Redistribution
|
If any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
| (a) |
each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 35.2 (Redistribution of
Payments) shall, upon the
request of the Facility Agent, pay to the Facility Agent for account of
that Recovering Finance Party an amount equal to its share of the Sharing
Payment (together with an amount as is necessary to reimburse that
Recovering Finance Party for its share of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay);
and
|
| (b) |
that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the Parent or the relevant Obligor
will be liable to the reimbursing Finance Party for the amount so
reimbursed.
|
|
35.5
|
Exceptions
|
| (a) |
This
Clause 35 shall not apply to the extent that the Recovering Finance
Party would not, after making any payment pursuant to this Clause, have a
valid and enforceable claim against the Parent or the relevant
Obligor.
|
| (b) |
A
Recovering Finance Party is not obliged to share with any other Finance
Party under this Clause 35, any amount which the Recovering Finance
Party has received or recovered as a result of taking legal or arbitration
proceedings,
if:
|
| (i) | it notified such other Finance Party of the legal or arbitration proceedings; and | ||
| (ii) |
such other Finance Party had
an opportunity to participate in those legal or arbitration proceedings
but did not do so as soon as reasonably practicable having received notice
of it or did not take separate legal or arbitration
proceedings.
|
|
35.6
|
Ancillary
Lenders
|
| (a) |
This
Clause 35 shall not apply to any receipt or recovery by a Lender in
its capacity as an Ancillary Lender at any time prior to service of notice
under Clause 27.17 (Acceleration).
|
| (b) |
Following
service of notice under Clause 27.17 (Acceleration), this
Clause 35 shall apply to all receipts or recoveries by Ancillary
Lenders except to the extent that the receipt or recovery represents a
reduction from the Designated Gross Amount for an Ancillary Facility to
its Designated Net
Amount.
|
|
36.1
|
Day
Count Convention
|
Interest
and commitment commission shall accrue from day to day and shall be calculated
on the basis of a year of 365 days (in the case of amounts denominated in
Sterling) or 360 days (in the case of amounts denominated in any other currency)
(as appropriate or, in any case where market practice differs, in accordance
with market practice) and the actual number of days elapsed and any Tax
Deductions required to be made from any payment of interest shall be computed
and paid accordingly.
|
36.2
|
Reductions
|
Any
repayment of any Advance denominated in an Optional Currency shall reduce the
amount of such Advance by the amount of such Optional Currency repaid and shall
reduce the Sterling Amount of such Advance proportionately.
|
36.3
|
Reference
Banks
|
Save as
otherwise provided in this Agreement, on any occasion a Reference Bank or Lender
fails to supply the Facility Agent with an interest rate quotation required of
it under the foregoing provisions of this Agreement, the rate for which such
quotation was required shall be determined from those quotations which are
supplied to the Facility Agent.
|
36.4
|
Maintain
Accounts
|
Each
Lender shall maintain in accordance with its usual practice accounts evidencing
the amounts from time to time lent by and owing to it under this
Agreement.
|
36.5
|
Control
Accounts
|
The
Facility Agent shall maintain on its books a control account or accounts in
which shall be recorded:
| (a) |
the
amount and the Sterling Amount of any Advance or Unpaid Sum and the face
amount and the Sterling Amount of any Documentary Credit, and each
Lender’s share in
it;
|
| (b) |
the
Sterling Amount of the Ancillary Facility Commitment (if any) of each
Lender
;
|
| (c) |
the
amount of all principal, interest and other sums due or to become due from
each of the Obligors to any of the Lenders under the Finance Documents and
each Lender’s share in it;
and
|
| (d) |
the
amount of any sum received or recovered by the Facility Agent under this
Agreement and each Lender’s share in
it.
|
|
36.6
|
Prima
Facie Evidence
|
In any
legal action or proceeding arising out of or in connection with this Agreement,
the entries made in the accounts maintained pursuant to Clause 36.4 (Maintain Accounts) and
Clause 36.5 (Control
Accounts) shall, in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
|
36.7
|
Certificate
of Finance Party
|
A
certificate of a Finance Party as to the amount for the time being required to
indemnify it against any Tax Liability pursuant to Clause 17.3 (Tax Indemnity) or any
Increased Cost pursuant to Clause 18.1 (Increased Costs) shall, in
the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the
Borrowers.
|
36.8
|
Certificate
of the Facility Agent
|
A
certificate of the Facility Agent as to the amount at any time due from any
Borrower under this Agreement (or the amount which, but for any of the
obligations of any Borrower under this Agreement being or becoming void,
unenforceable or ineffective, at any time, would have been due from such
Borrower under this Agreement) shall, in the absence of manifest error, be prima facie evidence for the
purposes of Clause 29 (Guarantee and
Indemnity).
|
36.9
|
Certificate
of L/C Bank
|
A
certificate of an L/C Bank as to the amount paid out or at any time due in
respect of a Documentary Credit shall, absent manifest error, be prima facie evidence of the
payment of such amounts or (as the case may be) of the amounts outstanding in
any legal action or proceedings arising in connection therewith.
|
37.1
|
Successors
and Assignees
|
This
Agreement shall be binding upon and enure to the benefit of each party to this
Agreement and its or any subsequent successors, permitted assignees and
Transferees.
|
37.2
|
Assignment
or Transfers by Obligors
|
None of
the rights, benefits and obligations of an Obligor under this Agreement shall be
capable of being assigned or transferred and each Obligor undertakes not to seek
to assign or transfer any of its rights, benefits and obligations under this
Agreement other than:
| (a) |
a
transfer made pursuant to the provisions of Clause 2.2 (Novation of B4
Facility);
or
|
| (b) |
except
in the case of any rights, benefits or obligations under the C Facility,
following not less than 10 Business Days prior consultation with the
Facility Agent, an assignment or transfer to another Borrower provided
that no Event of Default is continuing or would arise as a result of such
assignment or
transfer.
|
|
37.3
|
Assignments
or Transfers by Lenders
|
| (a) |
Any
Lender may, at any time, assign all or any of its rights and benefits
under the Finance Documents in accordance with Clause 37.4 (Assignments) or
transfer all or any of its rights, benefits and obligations under the
Finance Documents in accordance with Clause 37.5 (Transfer Deed) provided
that:
|
| (i) | the prior consultation of the Company shall be required in respect of any assignment or transfer arising prior to the achievement of Successful Syndication; | ||
| (ii) |
the prior consent of the
Company is received in respect of any assignment or transfer after the
achievement of a Successful Syndication, such consent not to be
unreasonably withheld, provided
that:
|
|
|
(A)
|
such
consent shall be deemed to have been given if not declined in writing
within 10 Business Days of a written request by any Lender to the
Company;
|
|
|
(B)
|
no
consent shall be required in the case of any assignment or transfer by a
Lender to its Affiliate (or in the case of any Lender which constitutes a
fund advised and/or managed by a common entity or an Affiliate thereof, to
any other fund managed by such common entity or Affiliate) which is either
a Qualifying UK Lender (in the case of a participation to a UK Borrower)
or a US Accession Lender (in the case of a participation to the US
Borrower); and
|
|
|
(C)
|
no
consent shall be required in the case of any assignment or transfer to any
third party at any time after the occurrence of a Major Event of Default
which is continuing; and
|
| (iii) |
the proposed
Transferee makes one of the representations set out in paragraph 8 of
the Transfer Deed and provides the Company with the information required
under paragraph 9 of the Transfer
Deed.
|
| (b) |
No
Lender shall be entitled
to:
|
| (i) | effect any assignment or transfer: |
|
|
(A)
|
in
respect of any portion of its Commitment and/or Outstandings under any
individual Facility in an amount of less than £1,000,000, $1,000,000 or
€1,000,000 (in the case of participations in Advances denominated in
Sterling, Dollars or Euro respectively) (or its equivalent as at the date
of such assignment or transfer);
|
|
|
(B)
|
which
would result in it or the proposed assignee or transferee holding an
aggregate participation of more than zero but less than £5,000,000 (or its
equivalent as at the date of such assignment or transfer) in the
Facilities, save that an assignment or transfer may be made to or by a
trust, fund or other non-bank entity which customarily participates in the
institutional market which would result in such entity holding an
aggregate participation of at least £1,000,000, $1,000,000 or €1,000,000
(in the case of participations in Advances denominated in Sterling,
Dollars or Euro respectively) in the Facilities;
or
|
|
|
(C)
|
in
relation to its participation in the Revolving Facility or Secondary
Revolving Facility other than to the extent such transfers and assignments
are on a pro rata basis as between the relevant Lender’s Commitment under
and participation in Outstandings under the Revolving Facility or
Secondary Revolving Facility;
|
| (ii) |
in relation to any
sub-participation of its rights and obligations under the Facilities,
relinquish some or all of its voting rights in respect of the Facilities
to any person in respect of any such sub-participation other than voting
rights in respect of the matters referred to in paragraphs (b), (c),
(d) or (e) of Clause 43.4 (Consent);
or
|
||
| (iii) | effect any assignment or transfer of any Facility to a person who is a US Accession Lender, other than in respect of the B4 Facility or the B10 Facility. |
| (c) |
If:
|
| (i) | any sum payable to any Lender by an Obligor is required to be increased under Clause 17.1 (Tax Gross-up); | ||
| (ii) | a Lender claims indemnification from a Borrower under the provisions of Clause 17.3 (Tax Indemnity) or Clause 18.1 (Increased Costs); or |
| (iii) | any Lender becomes a Non-Consenting Lender or a Non-Funding Lender, |
the
Company may within 90 days of such requirement or position being notified to it,
request that such Lender assigns or transfers all of its rights and obligations
under this Agreement at par (including any rights and obligations it may have in
its capacity as a Hedge Counterparty) to any person selected by the Company that
has agreed to accept such assignment or transfer, and such Lender shall effect
such assignment or transfer within 10 Business Days of such
request.
| (d) |
For
the purposes of satisfying the minimum hold requirement set out in
paragraph (b)(i) of this Clause 37.3, any participations held by
funds advised and/or managed by a common entity or an Affiliate thereof
may be
aggregated.
|
| (e) |
Notwithstanding
any other provision of this Agreement, the consent of the L/C Bank shall
be required (such consent not to be unreasonably withheld or delayed) for
any assignment or transfer of any Lender’s rights and/or obligations under
the Revolving Facility or Secondary Revolving Facility provided that in
relation to any assignment or transfer required by the Borrower under
paragraph (c), the L/C Bank may not withhold such consent unless,
acting reasonably, the reason for so doing relates to the creditworthiness
of the proposed assignee or
transferee.
|
| (f) |
Notwithstanding
any other provision of this Clause 37.3 (Assignments or Transfers by
Lenders), no assignment or transfer shall be permitted to settle or
otherwise become effective within the period of five Business Days prior
to (a) the end of any Interest Period or (b) any Repayment
Date.
|
|
37.4
|
Assignments
|
If any
Lender wishes to assign all or any of its rights and benefits under the Finance
Documents, unless and until the relevant assignee has agreed with the other
Finance Parties that it shall be under the same obligations towards each of them
as it would have been under if it had been an original party to the Finance
Documents as a Lender, such assignment shall not become effective and the other
Finance Parties shall not be obliged to recognise such assignee as having the
rights against each of them which it would have had if it had been such a party
to this Agreement.
|
37.5
|
Transfer
Deed
|
| (a) |
If
any Lender wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents, such transfer may be effected by
novation through the delivery to the Facility Agent of a duly completed
and duly executed Transfer
Deed.
|
| (b) |
The
Facility Agent shall only be obliged to execute a Transfer Deed delivered
to it pursuant to paragraph (a) above, upon its satisfaction with the
results of all “know your client” or other applicable anti-money
laundering checks relating to the identity of any person that it is
required to carry out in relation to such
Transferee.
|
| (c) |
Upon
its execution of the Transfer Deed pursuant to paragraph (b) above on
the later of the Transfer Date specified in such Transfer Deed and the
fifth Business Day after (or such earlier Business Day endorsed by the
Facility Agent on such Transfer Deed falling on or after) the date of
execution of such Transfer Deed by the Facility
Agent:
|
| (i) | to the extent that in such Transfer Deed the Lender party to it seeks to transfer its rights, benefits and obligations under the Finance Documents, the Ultimate Parent, the Parent, each of the Obligors and such Lender shall be released from further obligations towards one another under the Finance Documents to that extent and their respective rights against one another shall be cancelled to that extent (such rights and obligations being referred to in this Clause 37.5 as “discharged rights and obligations”); | ||
| (ii) | the Ultimate Parent, the Parent, each of the Obligors and the Transferee party to it shall assume obligations towards one another and/or acquire rights against one another which differ from the discharged rights and obligations only insofar as the Ultimate Parent, the Parent, such Obligor and such Transferee have assumed and/or acquired the same in place of the Ultimate Parent, the Parent, such Obligor and such Lender; |
| (iii) | the other Finance Parties and the Transferee shall acquire the same rights and benefits and assume the same obligations between themselves as they would have acquired and assumed had such Transferee been an original party to the Finance Documents as a Lender with the rights, benefits and obligations acquired or assumed by it as a result of such transfer; |
| (iv) | all payments due hereunder from the Parent or any Obligor shall be due and payable to such Transferee and not to the transferring Lender; and |
| (d) |
such
Transferee shall become a party to this Agreement as a
Lender.
|
|
37.6
|
Transfer
Fee
|
On the
date upon which a transfer takes effect pursuant to Clause 37.5 (Transfer Deed) the Transferee
in respect of such transfer shall pay to the Facility Agent for its own account
a transfer fee of £1,500 provided that this fee shall not be payable by any
Lender that becomes a party to this Agreement prior to the Syndication
Date.
|
37.7
|
Disclosure
of Information
|
| (a) |
Each
of the Agents, the Security Trustee, the Bookrunners, the Arrangers, the
Lenders, the L/C Bank and any Ancillary Facility Lender agrees to maintain
the confidentiality of all information received from the Ultimate Parent
or any member of the Group relating to the Ultimate Parent or any member
of the Group or its business other than any such information
that:
|
| (i) | is or becomes public knowledge other than as a direct result of any breach of this Clause; or | ||
| (ii) |
is available to the Agents,
the Security Trustee, the Bookrunners, the Arrangers, the Lenders, the L/C
Bank or such Ancillary Facility Lender on a non-confidential basis prior
to receipt thereof from the relevant member of the Group;
or
|
| (iii) |
is lawfully obtained
by any of the Agents, the Security Trustee, the Bookrunners, the
Arrangers, the Lenders, the L/C Bank and any Ancillary Facility Lender
after that date of receipt other than from a source which is connected
with the Group and which, as far as the relevant recipient thereof is
aware, has not been obtained in violation of, and is not otherwise subject
to, any obligation of
confidentiality.
|
| (b) |
Notwithstanding
paragraph (a) of this Clause 37.7 any Lender may disclose to any
of its Affiliates, to any actual or potential assignee or Transferee, to
any person who may otherwise enter into contractual relations with such
Lender in relation to this Agreement or any person to whom, and to the
extent that, information is required to be disclosed by any applicable
Law, such information about the Ultimate Parent, the Parent, the Obligors
or the Group as a whole as such Lender shall consider appropriate provided
that any such Affiliate, actual or potential assignee or Transferee or
other person who may otherwise enter into contractual relations in
relation to this Agreement shall first have entered into a confidentiality
undertaking on substantially the same terms as this
Clause 37.7.
|
|
37.8
|
No
Increased Obligations
|
If:
| (a) |
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and
|
| (b) |
as
a result of circumstances existing at the date of the assignment, transfer
or change of Facility Office, the Parent or an Obligor would be obliged to
make a payment to the assignee, Transferee or the Lender acting through
its new Facility Office under Clause 17.1 (Tax Gross-Up), 17.3
(Tax Indemnity)
or Clause 18 (Increased
Costs),
|
then the
assignee, Transferee or the Lender acting through its new Facility Office shall
only be entitled to receive payment under those Clauses to the same extent as
the assignor, transferor or the Lender acting through its previous Facility
Office would have been if the assignment, transfer or change had not
occurred.
|
37.9
|
Notification
|
The
Facility Agent shall, within 10 Business Days of receiving a Transfer Deed or a
notice relating to an assignment pursuant to Clause 37.4 (Assignments) or a notice from
a Lender or the giving by the Facility Agent of its consent, in each case,
relating to a change in such Lender’s Facility Office, notify the US Paying
Agent and the Borrowers of any such assignment, transfer or change in Facility
Office, as the case may be.
|
38.1
|
Transaction
Costs
|
Each
Borrower shall, from time to time no later than 10 Business Days after demand
from the Facility Agent (unless the relevant cost or expense is being queried by
a Borrower in good faith), reimburse the Facility Agent, the Security Trustee
and each of the Arrangers for all reasonable out-of-pocket costs and expenses
(including reasonable legal fees and disbursements of legal counsel, any value
added tax thereon and all travel and other reasonable out-of-pocket expenses)
incurred by them in connection with the negotiation, preparation, execution,
perfection, printing and distribution of the Finance Documents and the
completion of the transactions therein contemplated and the syndication of the
Facilities prior to the Syndication Date (including publicity expenses) up to
the levels agreed with the Company.
|
38.2
|
Preservation
and Enforcement Costs
|
Each
Borrower shall, from time to time on demand of the Facility Agent, reimburse
each Finance Party for all third party costs and expenses (including legal fees
and any value added tax thereon) incurred in or in connection with the
preservation and/or enforcement of any of the rights of such Finance Party under
the Finance Documents provided that any such costs and expenses incurred in
connection with the preservation of such rights are reasonable.
|
38.3
|
Stamp
Taxes
|
Each
Borrower shall pay all stamp, registration, documentary and other taxes
(including any penalties, additions, fines, surcharges or interest relating
thereto) to which any of the Finance Documents or any judgment given in
connection therewith is or at any time may be subject and shall with effect from
the Merger Closing Date and from time to time thereafter within 10 Business Days
of demand from the Facility Agent, indemnify the Finance Parties against any
liabilities, costs, claims and expenses resulting from any failure to pay or any
delay in paying those taxes. The Facility Agent shall be entitled
(but not obliged) to pay those taxes (whether or not they are its primary
responsibility) and to the extent that it does so claim under this
Clause 38.3.
|
38.4
|
Amendments,
Consents and Waivers
|
If an
Obligor requests any amendment, consent or waiver in accordance with
Clause 43 (Amendments), the relevant
Obligor shall, on demand of the Facility Agent, reimburse the Finance Parties
for all third party costs and expenses (including legal fees) incurred by any of
the Finance Parties in responding to or complying with such
request.
|
38.5
|
Lenders’
Indemnity
|
If any
Obligor fails to perform any of its obligations under this Clause 38, each
Lender shall indemnify and hold harmless each of the Agents, the Arrangers
and/or the Security Trustee from and against its Proportion (as determined at
all times for these purposes in accordance with paragraph (c) of the
definition of “Proportion”) of any loss incurred by any of them as a result of
such failure and the relevant Obligor shall forthwith reimburse each Lender for
any payment made by it pursuant to this Clause.
|
38.6
|
Value
Added Tax
|
| (a) |
All
amounts expressed to be payable under any Finance Document by any Obligor
to a Finance Party shall be exclusive of any VAT. If VAT is
chargeable on any supply made by a Finance Party to any Obligor under any
Finance Document (whether that supply is taxable pursuant to the exercise
of an option or otherwise), the relevant Finance Party shall provide a VAT
invoice to the Obligor and that Obligor shall pay to that Finance Party
(in addition to and at the same time as paying that consideration) the VAT
as further
consideration.
|
| (b) |
No
payment or other consideration to be made or furnished to any Obligor
pursuant to or in connection with any Finance Document may be increased or
added to by reference to (or as a result of any increase in the rate of)
any VAT which shall be or may become chargeable in respect of any taxable
supply.
|
| (c) |
Where
a Finance Document requires any party to reimburse a Finance Party for any
costs or expenses, that party shall also pay any amount of those costs or
expenses incurred referable to VAT chargeable
thereon.
|
No
failure to exercise, nor any delay in exercising, on the part of the Finance
Parties or any of them, any right or remedy under this Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies provided by
Law.
|
40.1
|
Writing
|
Each
communication to be made under this Agreement shall be made in writing and,
unless otherwise stated, shall be made by fax, telex or letter.
|
40.2
|
Giving
of Notice
|
Any
communication or document to be made or delivered by one person to another
pursuant to this Agreement shall in the case of any person other than a Lender
(unless that other person has by 10 Business Days’ written notice to the
Agents specified another address) be made or delivered to that other person at
the address identified with its signature below or, in the case of a Lender, at
the address from time to time designated by it to the Agents for the purpose of
this Agreement (or, in the case of a Transferee at the end of the Transfer Deed
to which it is a party as Transferee) and shall be deemed to have been made or
delivered when despatched (in the case of any communication made by fax) or (in
the case of any communication made by letter) when left at the address or (as
the case may be) 5 Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address provided that any
communication or document to be made or delivered to the Agents shall be
effective only when received by the Agents and then only if the same is
expressly marked for the attention of the department or officer identified with
the Agents’ signature below (or such other department or officer as the relevant
Agent shall from time to time specify by not less than 10 Business Days’
prior written notice to the Company for this purpose).
|
40.3
|
Use
of Websites/E-mail
|
| (a) |
An
Obligor may (and upon request by any of the Agents, shall) satisfy its
obligations under this Agreement to deliver any information in relation to
those Lenders (the “Website Lenders”) who
have not objected to the delivery of information electronically by posting
this information onto an electronic website designated by the Company and
the Facility Agent (the “Designated Website”) or
by e-mailing such information to the Agents,
if:
|
| (i) |
the Agents expressly agree
that they will accept communication and delivery of any documents required
to be delivered pursuant to this Agreement by this
method;
|
||
| (ii) |
in the case of posting to
the Designated Website, the Company and the Agents are aware of the
address of, and any relevant password specifications for, the Designated
Website;
and
|
| (iii) | the information is in a format previously agreed between the Company and each of the Agents. |
| (b) |
If
any Lender (a “Paper Form
Lender”) objects to the delivery of information electronically then
the Agents shall notify the Company accordingly and the Company shall
supply the information to the Agents (in sufficient copies for each Paper
Form Lender) in paper
form.
|
| (c) |
The
Facility Agent shall supply each Website Lender with the address of, and
any relevant password specifications for, the Designated Website following
designation of that website by the Company and the Facility
Agent.
|
| (d) |
Any
Website Lender may request, through the Facility Agent, one paper copy of
any information required to be provided under this Agreement which is
posted onto the Designated Website. The Company shall comply
with any such request within 10 Business
Days.
|
| (e) |
Subject
to the other provisions of this Clause 40.3, any Obligor may
discharge its obligation to supply more than one copy of a document under
this Agreement by posting one copy of such document to the Designated
Website or e-mailing one copy of such document to the Facility
Agent.
|
| (f) |
For
the purposes of paragraph (a) above, the Agents hereby expressly
agree
that:
|
| (i) |
they will accept delivery of
documents required to be delivered under Clause 22 (Financial Information)
by the posting of such documents to the Designated Website or by email
delivery to the Agents; and
|
||
| (ii) | they have agreed to the format of the information required to be delivered under Clause 22 (Financial Information). |
|
40.4
|
Public
Information
|
| (a) |
The
Company hereby acknowledges that certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Company, the Group and/or its
business) (each, a “Public
Lender”).
|
| (b) |
The
Company hereby agrees that if and for so long as any member of the Group
is the issuer of any outstanding debt or equity securities that are
registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities it will use commercially
reasonable efforts to identify that portion of any materials and/or
information provided by or on behalf of the Company hereunder
(collectively, “Company
Materials”) that may be distributed to the Public Lenders and
that:
|
| (i) |
all such Company Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page
thereof;
|
||
| (ii) | by marking Company Materials “PUBLIC,” the Company shall be deemed to have authorized the Agents and the Lenders to treat such Company Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Company, the Group and/or its business for purposes of United States Federal and state securities laws; |
| (iii) | all Company Materials marked “PUBLIC” shall be made available on the Designated Website under the title “PUBLIC”;” and |
| (iv) |
the Agents shall be
entitled to post any Company Materials that are not marked “PUBLIC” on to
the Designated Website without specifying in the title of such document
whether such information is
public.
|
| (c) |
Notwithstanding
the foregoing, the Company shall be under no obligation to xxxx any
Company Materials “PUBLIC”. Each of Agents and the Lenders hereby
acknowledge that in respect of any obligation of the Obligors to deliver
information to the Finance Parties under this Agreement, such obligation
shall be deemed to have been satisfied notwithstanding the determination
of any Public Lender not to view such information by reason of it not
having been marked with the title “PUBLIC”. The foregoing
provisions of this Clause 40.4 shall be without prejudice to the
provisions of Clauses 30 (Agents) or 37.7 (Disclosure of
Information)
hereof.
|
|
40.5
|
Electronic
Communication
|
| (a) |
Any
communication to be made between the Agents and any Lender under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means, if the relevant Agent and the relevant
Lender:
|
| (i) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; | ||
| (ii) |
notify each other in writing
of their electronic mail address and/or any other information required to
enable the sending and receipt of information by that means;
and
|
| (iii) | notify each other of any change to their address or any other such information supplied by them. |
| (b) |
Any
electronic communication made between the Agents and a Lender will be
effective only when actually received in readable form and in the case of
any electronic communication made by a Lender to an Agent only if it is
addressed in such a manner as the Facility Agent shall specify for this
purpose.
|
|
40.6
|
Certificates
of Officers
|
All
certificates of officers of any company hereunder may be given on behalf of the
relevant company and in no event shall personal liability attach to such an
officer.
|
40.7
|
Patriot
Act
|
Each
Lender subject to the USA Patriot Act (Title 111 of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”) hereby notifies the
Ultimate Parent and the Company that pursuant to the requirements of the Act, it
is required to obtain, verify and record information that identifies the
Ultimate Parent, the Parent, the Company and the other Obligors and other
information that will allow such Lender to identify Parent, the Company and the
other Obligors in accordance with the Act.
|
41.
|
Each
communication and document made or delivered by one party to another pursuant to
this Agreement shall be in the English language or accompanied by a translation
of it into English certified (by an officer of the person making or delivering
the same) as being a true and accurate translation of it.
If, at
any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the Law of any jurisdiction, such illegality,
invalidity or unenforceability shall not affect:
| (a) |
the
legality, validity or enforceability of the remaining provisions of this
Agreement;
or
|
| (b) |
the
legality, validity or enforceability of such provision under the Law of
any other
jurisdiction.
|
|
43.
|
|
43.1
|
Amendments
Generally
|
Except as
otherwise provided in this Agreement, the Facility Agent, if it has the prior
written consent of an Instructing Group, and the Obligors affected thereby, may
from time to time agree in writing to amend any Finance Document or to consent
to or waive, prospectively or retrospectively, any of the requirements of any
Finance Document and any amendments, consents or waivers so agreed shall be
binding on all the Finance Parties and the Obligors. For the
avoidance of doubt, any amendments relating to this Agreement shall only be made
in accordance with the provisions of this Agreement and any amendments relating
to a Hedging Agreement shall only be made in accordance with the provisions of
such Hedging Agreement, in each case notwithstanding any other provisions of the
Finance Documents.
|
43.2
|
Amendments
relating to Baseball
|
Except as
provided in Clause 43.4 (Consents), 43.5 (Technical Amendments), 43.6
(Guarantees and
Security) and 43.7 (Release of Guarantees and
Security), the Facility Agent, if it has the prior written consent of a
Baseball Instructing Group (for this purpose, within the meaning of
paragraph (a) of that definition) and the Obligors affected thereby, may
agree in writing to amend or waive, or to consent to, any of the following
provisions with respect to the A1 Facility and the B1 Facility:
| (a) |
the
definitions of “Baseball Acquisition”, “Baseball
Bidcos”, “Baseball Cash Bidco”, “Baseball Certain Funds
Period”, “Baseball Clean-Up Period”, “Baseball Drawstop Default”,
“Baseball Effective Date”, “Baseball Group”, “Baseball Implementation
Agreement”, “Baseball Press Release”, “Baseball Resolutions”, “Baseball
Scheme”, “Baseball Scheme Circular”, “Baseball Scheme Document”, “Baseball
Shares”, “Baseball Stock Bidco” and “Total Baseball
Debt”;
|
| (b) |
paragraphs (b)
and (c) of Clause 2.1 (The
Facilities);
|
| (c) |
paragraph (b)
of Clause 2.4 (Purpose);
|
| (d) |
Clause 3.2
(Baseball Conditions
Precedent);
|
| (e) |
Clause 3.4
(Baseball Conditions
Subsequent);
|
| (f) |
Clause 3.6
(Baseball Certain Funds
Period);
|
| (g) |
Clause 27.20
(Baseball Clean-Up
Period);
|
| (h) |
any
matter listed in Part 2 of Schedule 4 (Conditions Precedent to First
Baseball Utilisation) and Part 7 of Schedule 4 (Baseball Conditions
Subsequent);
and
|
| (i) |
any
other provision of this Agreement where the prior consent of a Baseball
Instructing Group is expressly
required,
|
in each
case, except to the extent that such amendment, waiver or consent relates to
Security. Any such amendments, consents or waivers so agreed shall be
binding on all the Finance Parties and the Obligors.
|
43.3
|
Amendments
relating to Alternative Baseball
Financing
|
The
Facility Agent, if it has the prior written consent of all of the Baseball
Lenders (for this purpose, falling within the meaning of paragraph (b) of
that definition) and the Obligors affected thereby, may agree in writing to any
change to this Agreement, for the purposes of giving effect to a commitment
provided by such Baseball Lenders relating to any Alternative Baseball Financing
and the new facilities to be provided thereunder and the associated Alternative
Baseball Acquisition, which amends or replaces or is intended to amend or
replace the provisions set out in:
| (a) |
paragraphs (b)
and (c) of Clause 2.1 (The
Facilities);
|
| (b) |
paragraph (b)
of Clause 2.4 (Purpose);
|
| (c) |
Clause 3.2
(Baseball Conditions
Precedent);
|
| (d) |
Clause 3.4
(Baseball Conditions
Subsequent);
|
| (e) |
Clause 3.6
(Baseball Certain Funds
Period);
|
| (f) |
Clause 27.20
(Baseball Clean-Up
Period);
|
| (g) |
Clause 9
(Repayment of Term
Facility Outstandings) to the extent that such changes amend or
replace provisions relating to the A1 Facility and B1 Facility, except
where such changes provide for a final maturity date in respect of the
Alternative Baseball Facility which is earlier than the Final Maturity
Date in respect of the A Facility or in the case of amortising debt, where
the average life of such Alternative Bridge Facility would be shorter than
the average life of the A
Facility;
|
| (h) |
Clause 11
(Voluntary
Prepayment) and Clause 12 (Mandatory Prepayment and
Cancellation) to the extent that such changes amend or replace
provisions relating to the A1 Facility and B1 Facility, and provided that
such changes do not have the effect of altering the timing or amount of
payments payable to any Lender in respect of the A Facility, B2 Facility,
B3 Facility, B4 Facility, B5 Facility, B6 Facility, C Facility or
Revolving Credit
Facility;
|
| (i) |
Clause 14
(Interest as Term
Facility Advances) to the extent that such changes amend or replace
provisions relating to the A1 Facility and B1
Facility;
|
| (j) |
Clause 17.1
(Tax Gross Up) to
the extent that such changes relate to the Relevant Tax Jurisdiction of
the relevant borrower of the Alternative Baseball
Financing;
|
| (k) |
Clause 21
(Representations and
Warranties) in relation to the representations and warranties to be
given to the Baseball Lenders (for this purpose, falling within the
definition of paragraph (b) of such
definition);
|
| (l) |
Clause 37
(Assignment or Transfers
by Lenders) to the extent that such changes relate to the
assignment or transfer of any commitments or outstandings under the
Alternative Baseball
Financing;
|
| (m) |
Clause 43.2
(Amendments relating to
Baseball);
|
| (n) |
Part
1 of Schedule 1 (Lenders
and Commitments) and Part 2 of Schedule 1 (Lenders Tax Status) to
the extent such changes amend or replace the then existing Lenders to
include the Baseball
Lenders;
|
| (o) |
Part
2 of Schedule 4 (Conditions Precedent to First
Baseball Utilisation) and Part 7 of Schedule 4 (Baseball Conditions
Subsequent) for the purposes of amending and replacing the list of
required documentary conditions precedent to the Alternative Baseball
Financing;
|
| (p) |
any
of the definitions contained in Clause 1.1 (Definitions) for the
purposes of removing all references to and all derivatives of the A1
Facility and the B1 Facility and incorporating such definitions as may be
necessary for the purposes of giving effect to the changes described in
this Clause 43.3,
and
|
| (q) |
such
other amendments to or replacements of the provisions of this Agreement,
which are of a technical or mechanical nature provided that such
amendments or replacements do not prejudice the interests of the Lenders
under the A Facility, B2 Facility, B3 Facility, B4 Facility, B5 Facility,
B6 Facility, C Facility or Revolving Credit
Facility.
|
in each
case, except to the extent that such amendment, waiver or consent relates to
Security. Any such amendments, consents or waivers so agreed shall be
binding on all the Finance Parties and the Obligors.
|
43.4
|
Consents
|
An
amendment, consent or waiver relating to the following matters may be made with
the prior written consent of each Lender affected thereby:
| (a) |
any
increase in the principal amount of any Commitment of such
Lender;
|
| (b) |
a
reduction in the proportion of any amount received or recovered (whether
by way of set-off, combination of accounts or otherwise) in respect of any
amount due from the Parent or any Obligor under this Agreement to which
such Lender is
entitled;
|
| (c) |
a
decrease in any Applicable Margin for, or the principal amount of, any
Advance, any Documentary Credit or any interest payment, fees or other
amounts due under this Agreement to such Lender from the Parent or any
Obligor or any other party to this
Agreement;
|
| (d) |
any
change in the currency of account (other than a change resulting from the
United Kingdom becoming a Participating Member
State);
|
| (e) |
unless
otherwise specified the deferral of the date for payment of any principal,
interest, fee or any other amount due under this Agreement to such Lender
from the Parent or any Obligor or any other party to this
Agreement;
|
| (f) |
the
deferral of any Termination
Date;
|
| (g) |
any
reduction to the percentage set forth in the definition of Instructing
Group or Baseball Instructing Group;
or
|
| (h) |
a
change to any provision which contemplates the need for the consent or
approval of all the
Lenders.
|
|
43.5
|
Technical
Amendments
|
Notwithstanding
any other provision of this Clause 43, the Facility Agent may at any time
without the consent or sanctions of the Lenders, concur with the Company in
making any modifications to any Finance Document, which in the opinion of the
Facility Agent would be proper to make provided that the Facility Agent is of
the opinion that such modification would not be prejudicial to the position of
any Lender and in the opinion of the Facility Agent such modification is of a
formal, minor or technical nature or is to correct a manifest error. Any
such modification shall be made on such terms as the Facility Agent may
determine, shall be binding upon the Lenders, and shall be notified by the
Company to the Lenders as soon as practicable thereafter.
|
43.6
|
Guarantees
and Security
|
A waiver
of issuance or the release of any Guarantor from any of its obligations under
Clause 29 (Guarantee and
Indemnity) or a release of any Security under the Security Documents, in
each case, other than in accordance with the terms of any Finance Document shall
require the prior written consent of affected Lenders whose Available
Commitments plus Outstandings amount in aggregate to more than 90 per cent. of
the Available Facilities plus aggregate Outstandings.
|
43.7
|
Release
of Guarantees and Security
|
| (a) |
Subject
to paragraph (b) below, at the time of completion of any disposal by
the Parent or any Obligor of any shares, assets or revenues the Security
Trustee shall (and it is hereby authorised by the other Finance Parties
to) at the request of and cost of the relevant Obligor, execute such
documents as may be required
to:
|
| (i) | release those shares, assets or revenues from Security constituted by any relevant Security Document or certify that any floating charge constituted by any relevant Security Documents over such assets, revenues or rights has not crystallised; and | ||
| (ii) | release any person which as a result of that disposal, ceases to be the Parent or any Obligor, from any guarantee, indemnity or Security Document to which it is a party and its other obligations under any other Finance Document. |
| (b) |
The
Security Trustee shall only be required under paragraph (a) above to
grant the release of any Security or to deliver a certificate of
non-crystallisation on account of a disposal as described in that
paragraph described in that
paragraph if:
|
| (i) | the disposal is permitted under Clause 25.6 (Disposals) or otherwise with the consent of an Instructing Group; | ||
| (ii) |
(to the extent that any
proceeds of that disposal are to be applied in repayment of the
Facilities) the Facility Agent has received (or is satisfied, acting
reasonably, that it will receive immediately following the disposal) the
appropriate amount of those proceeds;
and
|
| (iii) |
(to the extent that
the disposal is to be in exchange for replacement assets) the Security
Trustee has either received (or is satisfied, acting reasonably, that it
will receive immediately following the disposal) one or more duly executed
Security Documents granting Security over those replacement assets or is
satisfied, acting reasonably, that the replacement assets will be subject
to Security pursuant to any existing Security
Documents.
|
| (c) |
If
at any time, a Compliance Certificate delivered pursuant to
Clause 22.5(a) (Compliance
Certificates) shows that the Obligors under this Agreement at the
relevant time represent a percentage which is greater than that required
to satisfy the 80% Security Test and the Company is able, at such time, to
demonstrate to the satisfaction of the Facility Agent (acting reasonably)
that upon the release of one or more specified Obligors from its
obligations under this Agreement the 80% Security Test would continue to
be satisfied, the Security Trustee shall (and it is hereby authorised by
the other Finance Parties to) at the request and cost of the Company,
execute such documents as may be required to release such specified
Obligors from any guarantees, indemnities and Security Documents to which
it is a party and to release it from its other obligations under any
Finance
Document.
|
| (d) |
Notwithstanding
the foregoing provisions of this Clause 43.7, in the event that the
Company elects to raise or incur any Stand Alone Baseball Financing in
accordance with the provisions of this Agreement, and immediately prior to
such raising or incurrence, any member of the Baseball Group has granted
any guarantee and/or security in respect of the Facilities, such member of
the Baseball Group shall be released from any such guarantee and/or
security immediately prior to such raising or incurrence, or in the event
that the proceeds of such Stand Alone Baseball Financing are being used to
prepay A1 Facility Outstandings and B1 Facility Outstandings in accordance
with Clause 11.1 (Voluntary Prepayment),
simultaneously with such
prepayment.
|
|
43.8
|
Amendments
affecting the Facility Agent
|
Notwithstanding
any other provision of this Agreement, the Facility Agent shall not be obliged
to agree to any amendment, consent or waiver if the same would:
| (a) |
amend
or waive any provision of Clauses 30 (Agents), Clause 38
(Costs and
Expenses) or this Clause 43;
or
|
| (b) |
otherwise
amend or waive any of the Facility Agent’s rights under this Agreement or
subject the Facility Agent to any additional obligations under this
Agreement.
|
|
43.9
|
Calculation
of Consent
|
Where a
request for a waiver of, or an amendment to, any provision of any Finance
Document has been sent by the Facility Agent to the Lenders at the request of an
Obligor, each Lender that does not respond to such request for waiver or
amendment within 30 days after receipt by it of such request (or within such
other period as the Facility Agent and the Company shall specify), shall be
excluded from the calculation in determining whether the requisite level of
consent to such waiver or amendment was granted.
|
43.10
|
[Reserved]
|
| (a) |
A
person which is not a party to this Agreement (a “third party”) shall have
no right to enforce any of its provisions except
that:
|
| (i) | a third party shall have those rights it would have had if the Contracts (Rights of Third Parties) Xxx 0000 had not come into effect; and | ||
| (ii) | each of Clause 5.9 (Exclusion of Liability), Clause 17.3 (Tax Indemnity), Clause 18 (Increased Costs) and Clause 30.10 (Exclusion of Liability) shall be enforceable by any third party referred to in such clause as if such third party were a party to this Agreement. |
| (b) |
The
parties to this Agreement may without the consent of any third party vary
or rescind this
Agreement.
|
|
45.
|
This
Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
|
46.
|
|
46.1
|
Governing
Law of Agreement
|
This
Agreement shall be governed by, and construed in accordance with, English
Law.
|
46.2
|
Governing
Law of Claims Against the US
Borrower
|
Notwithstanding
the provisions of Clause 46.1 (Governing Law of Agreement),
any proceedings in relation to a debt claim against the US Borrower shall be
governed by the internal laws of the state of New York, provided always that no
other Obligor may rely upon, or otherwise challenge any right of any Finance
Party on the basis of this Clause 46.2.
|
47.
|
|
47.1
|
Courts
|
| (a) |
The
US Borrower and each of the other parties to this Agreement irrevocably
agrees for the benefit of the Finance Parties that the courts of the State
of New York and/or the federal courts of the United States of America
sitting in the State of New York in diversity jurisdiction shall have
exclusive jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes which may arise out of or in
connection with the rights or obligations of the US Borrower under the
Finance Documents and, for such purposes, irrevocably submits to the
jurisdiction of such
courts.
|
| (b) |
Each
of the parties to this Agreement irrevocably agrees for the benefit of
each of the Finance Parties that, except as set forth in
paragraph (a) above, the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with this
Agreement (respectively “Proceedings” and “Disputes”) and, for such
purposes, irrevocably submits to the jurisdiction of such
courts.
|
|
47.2
|
Waiver
|
Each of
the Obligors other than the US Borrower irrevocably waives any objection which
it might now or hereafter have to Proceedings being brought or Disputes settled
in the courts of England and agrees not to claim that any such court is an
inconvenient or inappropriate forum. The US Borrower and each of the
Finance Parties irrevocably waives any objection which it might now or hereafter
have to Proceedings being brought by or against the US Borrower or Disputes with
the US Borrower being settled in the courts of the State of New
York.
|
47.3
|
Service
of Process
|
Each of
the Obligors (other than the US Borrower) which is not incorporated in England
agrees that the process by which any Proceedings are begun may be served on it
by being delivered in connection with any Proceedings in England, to the Company
at its registered office for the time being and the Company, by its signature to
this Agreement, accepts its appointment as such in respect of each such
Obligor. If the appointment of the person mentioned in this Clause
ceases to be effective in respect of any of the Obligors the relevant Obligor
shall immediately appoint a further person in England to accept service of
process on its behalf in England and, failing such appointment within
15 days, the Facility Agent shall be entitled to appoint such person by
notice to the relevant Obligor. Nothing contained in this Agreement shall affect
the right to serve process in any other manner permitted by Law.
|
47.4
|
Proceedings
in Other Jurisdictions
|
Nothing
in Clause 47.1(b) (Courts) shall (and shall not
be construed so as to) limit the right of the Finance Parties or any of them to
take Proceedings against any of the Obligors other than the US Borrower in any
other court of competent jurisdiction nor shall the taking of Proceedings in any
one or more jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted by
applicable Law.
|
47.5
|
General
Consent
|
Each of
the Obligors consents generally in respect of any Proceedings to the giving of
any relief or the issue of any process in connection with such Proceedings
including the making, enforcement or execution against any property whatsoever
(irrespective of its use or intended use) of any order or judgment which may be
made or given in such Proceedings.
|
47.6
|
Waiver
of Immunity
|
To the
extent that any Obligor may in any jurisdiction claim for itself or its assets
or revenues immunity from suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process and to the
extent that in any such jurisdiction there may be attributed to itself, its
assets or revenues such immunity (whether or not claimed), such Obligor
irrevocably agrees not to claim, and irrevocably waives, such immunity to the
full extent permitted by the laws of such jurisdiction.
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
LENDERS
AND COMMITMENTS
|
Lender
|
Revolving
Facility Commitment (£)
|
A
Facility Commitment
(£)
|
A1
Facility Commitment
(£)
|
B1
Facility Commitment (£)
|
B2
Facility Commitment (£)
|
B3
Facility Commitment (€)
|
B4
Facility Commitment ($)
|
B5
Facility Commitment (£)
|
B6
Facility Commitment (£)
|
|||||||||
|
Deutsche
Bank AG, London Branch
|
25,000,000
|
837,500,000
|
43,750,000
|
75,000,000
|
106,258,206.03
|
151,515,000
|
196,969,500
|
118,000,000
|
60,000,000
|
|||||||||
|
JPMorgan
Chase Bank, National Association
|
25,000,000
|
837,500,000
|
43,750,000
|
75,000,000
|
106,258,206.03
|
151,515,000
|
196,969,500
|
118,000,000
|
60,000,000
|
|||||||||
|
The
Royal Bank of Scotland plc
|
25,000,000
|
837,500,000
|
43,750,000
|
75,000,000
|
74,380,393.57
|
106,060,000
|
137,878,000
|
n/a
|
n/a
|
|||||||||
|
Xxxxxxx
Xxxxx International Bank
|
25,000,000
|
837,500,000
|
n/a
|
n/a
|
63,755,624.93
|
90,910,000
|
118,183,000
|
n/a
|
n/a
|
|||||||||
|
Xxxxxxx
Sachs Credit Partners L.P.
|
n/a
|
n/a
|
43,750,000
|
75,000,000
|
n/a
|
n/a
|
n/a
|
118,000,000
|
60,000,000
|
|||||||||
|
BNP
Xxxxxxx
|
x/x
|
x/x
|
x/x
|
x/x
|
x/x
|
n/a
|
n/a
|
118,000,000
|
60,000,000
|
|||||||||
|
Citibank
N.A.
|
n/a
|
n/a
|
n/a
|
n/a
|
n/a
|
n/a
|
n/a
|
118,000,000
|
60,000,000
|
|||||||||
|
Total
Commitments
|
100,000,000
|
3,350,000,000
|
175,000,000
|
300,000,000
|
350,652,430.56
|
500,000,000
|
650,000,000
|
590,000,000
|
300,000,000
|
|
Lender
|
Tax
Status
|
|
|
Deutsche
Bank AG, London Branch
|
UK
Bank Lender
|
|
|
JPMorgan
Chase Bank, National Association
|
UK
Bank Lender
|
|
|
The
Royal Bank of Scotland plc
|
UK
Bank Lender
|
|
|
Xxxxxxx
Xxxxx International Bank
|
UK
Bank Lender
|
|
|
Xxxxxxx
Sachs Credit Partners L.P.
|
UK
Treaty Lender
|
|
Deutsche
Bank AG, London Branch
JPMorgan
Chase Bank, National Association
The Royal
Bank of Scotland plc
Xxxxxxx
Xxxxx Credit Partners L.P.
|
Name
|
Jurisdiction
of Incorporation
|
Company
number (if applicable)
|
|
NTL
|
||
|
Andover
Cablevision Limited
|
England
|
1932254
|
|
Anglia
Cable Communications Limited
|
England
|
2433857
|
|
Berkhamsted
Properties & Building Contractors Limited
|
England
|
958564
|
|
Cable
Television Limited
|
England
|
683065
|
|
Cable
Thames Valley Limited
|
England
|
2254089
|
|
CableTel
Cardiff Limited
|
England
|
2740659
|
|
Cabletel
(UK) Limited
|
England
|
2835551
|
|
CableTel
Central Hertfordshire Limited
|
England
|
2347168
|
|
CableTel
Hertfordshire Limited
|
England
|
2381354
|
|
CableTel
Herts and Beds Limited
|
England
|
1785533
|
|
CableTel
Investments Limited
|
England
|
3157216
|
|
CableTel
Newport
|
England
|
2478879
|
|
CableTel
North Bedfordshire Limited
|
England
|
2455397
|
|
CableTel
Scotland Limited
|
Scotland
|
SC119938
|
|
CableTel
Surrey and Hampshire Limited
|
England
|
2740651
|
|
CableTel
Telecom Supplies Limited
|
England
|
2919285
|
|
CableTel
West Glamorgan Limited
|
England
|
623197
|
|
CableTel
West Riding Limited
|
England
|
2372564
|
|
Cambridge
Cable Services Limited
|
England
|
3262220
|
|
Cambridge
Holding Company Limited
|
England
|
2955679
|
|
CCL
Corporate Communications Services Limited
|
England
|
2425789
|
|
Chartwell
Investors L.P.
|
Delaware
|
|
|
Columbia
Management Limited
|
England
|
2361163
|
|
ComTel
Cable Services Limited
|
England
|
2265315
|
|
ComTel
Coventry Limited
|
England
|
277802
|
|
Credit-Track
Debt Recovery Limited
|
England
|
277802
|
|
Diamond
Cable (Bassetlaw) Limited
|
England
|
3020785
|
|
Diamond
Cable (Xxxxxx-Upon-Trent) Limited
|
England
|
3016632
|
|
Diamond
Cable (Chesterfield) Limited
|
England
|
3155292
|
|
Diamond
Cable (Xxxxxxxx) Limited
|
England
|
2449143
|
|
Diamond
Cable (Grimclee) Limited
|
England
|
2476662
|
|
Diamond
Cable (Hinckley) Limited
|
England
|
3016600
|
|
Diamond
Cable (Leicester) Limited
|
England
|
2309938
|
|
Diamond
Cable (Lincoln) Limited
|
England
|
2476654
|
|
Diamond
Cable (Lincolnshire) Limited
|
England
|
3020780
|
|
Diamond
Cable (Mansfield) Limited
|
England
|
2379153
|
|
Diamond
Cable (Xxxxxx Xxxxxxx) Limited
|
England
|
2449137
|
|
Diamond
Cable (Newark-On-Trent) Limited
|
England
|
2449141
|
|
Diamond
Cable (Ravenshead) Limited
|
England
|
3020784
|
|
Diamond
Cable (Vale Of Belvoir) Limited
|
England
|
3155311
|
|
Diamond
Cable Acquisitions Limited
|
England
|
2417366
|
|
Diamond
Cable Communications Limited
|
England
|
2965241
|
|
Diamond
Cable Construction Limited
|
England
|
2379018
|
|
Diamond
Cable CPE Limited
|
England
|
2459844
|
|
Diamond
Holdings Limited
|
England
|
3483724
|
|
Diamond
Visual Communications Limited
|
England
|
3020782
|
|
Digital
Television Network Limited
|
England
|
3288768
|
|
DTELS
Limited
|
England
|
2834403
|
|
East
Coast Cable Limited
|
England
|
2352468
|
|
East
Midlands Cable Communications Limited
|
England
|
2457536
|
|
East
Midlands Cable Group Limited
|
England
|
3030063
|
|
East
Midlands Cable Holdings Limited
|
England
|
3022472
|
|
Enablis
Limited
|
England
|
3144815
|
|
Heartland
Cablevision (UK) Limited
|
England
|
2415170
|
|
Heartland
Cablevision II (UK) Limited
|
England
|
2443617
|
|
Herts
Cable Limited
|
England
|
2390426
|
|
Jewel
Holdings Limited
|
England
|
3085518
|
|
Lanbase
European Holdings Limited
|
England
|
2529290
|
|
Lanbase
Limited
|
England
|
2617729
|
|
LCL
Cable (Holdings) Limited
|
England
|
3030067
|
|
LCL
Telephones Limited
|
England
|
2835893
|
|
Lichfield
Cable Communications Limited
|
England
|
3016595
|
|
Maza
Limited
|
England
|
2785299
|
|
Xxxxx
Xxxxxxxxxxxxx Xxxxxxx
|
Xxxxxxx
|
0000000
|
|
Xxxxx
Xxxxx Xxxxx Limited
|
England
|
3092897
|
|
NNS
UK Holdings 1 LLC
|
Delaware
|
|
|
NNS
U.K. Holdings 2, Inc.
|
Delaware
|
|
|
North
CableComms Holdings, Inc.
|
Delaware
|
|
|
North
CableComms L.L.C.
|
Delaware
|
|
|
North
CableComms Management, Inc.
|
Delaware
|
|
|
Northampton
Cable Television Limited
|
England
|
2475464
|
|
NTL
(Aylesbury and Chiltern) Limited
|
England
|
2416084
|
|
NTL
(B) Limited
|
England
|
2735732
|
|
NTL
(Broadland) Limited
|
England
|
2443741
|
|
NTL
(Chichester) Limited
|
England
|
3056817
|
|
NTL
(City & Westminster) Limited
|
England
|
2809080
|
|
NTL
(County Durham) Limited
|
England
|
3128449
|
|
NTL
(CRUK) Limited
|
England
|
2329254
|
|
NTL
(CWC Holdings)
|
England
|
3922682
|
|
NTL
(CWC) Corporation Limited
|
England
|
2719477
|
|
NTL
(CWC) Limited
|
England
|
3288998
|
|
NTL
(CWC) Management Limited
|
England
|
2924200
|
|
NTL
(CWC) No. 2 Limited
|
England
|
2441766
|
|
NTL
(CWC) No. 3 Limited
|
England
|
2441768
|
|
NTL
(CWC) No. 4 Limited
|
England
|
2351068
|
|
NTL
(CWC) Programming Limited
|
England
|
3403986
|
|
NTL
(CWC) UK
|
England
|
2463427
|
|
NTL
(Ealing) Limited
|
England
|
1721894
|
|
NTL
(Eastbourne and Hastings) Limited
|
England
|
3074517
|
|
NTL
(Fenland) Limited
|
England
|
2459153
|
|
NTL
(Greenwich and Lewisham) Limited
|
England
|
2254009
|
|
NTL
(Hampshire) Limited
|
England
|
2351070
|
|
NTL
(Harrogate) Limited
|
England
|
2404019
|
|
NTL
(Harrow) Limited
|
England
|
2459179
|
|
NTL
(Kent) Limited
|
England
|
2456153
|
|
NTL
(Lambeth and Southwark) Limited
|
England
|
2277986
|
|
NTL
(Leeds) Limited
|
England
|
2400103
|
|
NTL
(Norwich) Limited
|
England
|
2332233
|
|
NTL
(Peterborough) Limited
|
England
|
2332232
|
|
NTL
(South East) Limited
|
England
|
1870928
|
|
NTL
(South London) Limited
|
England
|
0657093
|
|
NTL
(Southampton and Eastleigh) Limited
|
England
|
1866504
|
|
NTL
(Sunderland) Limited
|
England
|
2402393
|
|
NTL
(Thamesmead) Limited
|
England
|
2461140
|
|
NTL
(Triangle) LLC
|
Delaware
|
|
|
NTL
(V) Limited
|
England
|
2719474
|
|
NTL
(Wandsworth) Limited
|
England
|
1866178
|
|
NTL
(Wearside) Limited
|
England
|
2475099
|
|
NTL
(West London) Limited
|
England
|
1735664
|
|
NTL
(Yorcan) Limited
|
England
|
2371785
|
|
NTL
(York) Limited
|
England
|
2406267
|
|
NTL
Acquisition Company Limited
|
England
|
2270117
|
|
NTL
Xxxxxx Cablevision Holding Company
|
England
|
2422198
|
|
NTL
Bromley Company
|
Delaware
|
|
|
NTL
Business (Ireland) Limited
|
England
|
3284482
|
|
NTL
Business Limited
|
England
|
3076222
|
|
NTL
Cablecomms Xxxxxx
|
England
|
1883383
|
|
NTL
Cablecomms Bromley
|
England
|
2422195
|
|
NTL
Cablecomms Bury and Rochdale
|
England
|
2446183
|
|
NTL
Cablecomms Cheshire
|
England
|
2379804
|
|
NTL
Cablecomms Derby
|
England
|
2387713
|
|
NTL
Cablecomms East Lancashire
|
England
|
2114543
|
|
NTL
Cablecomms Greater Manchester
|
England
|
2407924
|
|
NTL
Cablecomms Group Limited
|
England
|
3024703
|
|
ntl
CableComms Group, Inc.
|
Delaware
|
|
|
NTL
Cablecomms Holdings No. 1 Limited
|
England
|
3709869
|
|
NTL
Cablecomms Holdings No. 2 Limited
|
England
|
3709840
|
|
NTL
Cablecomms Lancashire No. 1
|
England
|
2453249
|
|
NTL
Cablecomms Lancashire Xx. 0
|
Xxxxxxx
|
0000000
|
|
XXX
Xxxxxxxxxx Xxxxxxx
|
Xxxxxxx
|
2664006
|
|
NTL
Cablecomms Macclesfield
|
England
|
2459067
|
|
NTL
Cablecomms Manchester Limited
|
England
|
2511868
|
|
NTL
Cablecomms Oldham and Tameside
|
England
|
2446185
|
|
NTL
Cablecomms Solent
|
England
|
2422654
|
|
NTL
Cablecomms Staffordshire
|
England
|
2379800
|
|
NTL
Cablecomms Stockport
|
England
|
2443484
|
|
NTL
Cablecomms Surrey
|
England
|
2531586
|
|
NTL
Cablecomms Sussex
|
England
|
2266092
|
|
NTL
Cablecomms Wessex
|
England
|
2410378
|
|
NTL
Cablecomms West Surrey Limited
|
England
|
2512757
|
|
NTL
Cablecomms Wirral
|
England
|
2531604
|
|
NTL
Cambridge Limited
|
England
|
2154841
|
|
NTL
Chartwell Holdings 2, Inc.
|
Delaware
|
|
|
NTL
Chartwell Holdings, Inc.
|
Delaware
|
|
|
NTL
Chartwell Holdings Limited
|
England
|
3290823
|
|
NTL
Communications Services Limited
|
England
|
3403985
|
|
NTL
Darlington Limited
|
England
|
2533674
|
|
NTL
Derby Cablevision Holding Company
|
England
|
2422310
|
|
Virgin
Media Dover LLC (formerly known as NTL Dover LLC)
|
||
|
NTL
Equipment No. 1 Limited
|
England
|
2794518
|
|
NTL
Equipment No. 2 Limited
|
England
|
2071491
|
|
NTL
Finance Limited
|
England
|
5537678
|
|
NTL
Glasgow
|
Scotland
|
SC075177
|
|
NTL
Glasgow Holdings Limited
|
England
|
4170072
|
|
Virgin
Media Limited (formerly known as NTL Group Limited)
|
England
|
2591237
|
|
NTL
Holdings (Broadland) Limited
|
England
|
2427172
|
|
NTL
Holdings (East London) Limited
|
England
|
2032186
|
|
NTL
Holdings (Fenland) Limited
|
England
|
2427199
|
|
NTL
Holdings (Leeds) Limited
|
England
|
02766909
|
|
NTL
Holdings (Norwich) Limited
|
England
|
2332233
|
|
NTL
Holdings (Peterborough) Limited
|
England
|
2332232
|
|
NTL
Internet Limited
|
England
|
2985161
|
|
NTL
Internet Services Limited
|
England
|
4038930
|
|
Virgin
Media Investment Holdings Limited (formerly known as NTL Investment
Holdings Limited)
|
England
|
3173552
|
|
NTL
Irish Holdings Limited
|
England
|
5313953
|
|
NTL
Kirklees
|
England
|
2495460
|
|
NTL
Kirklees Holdings Limited
|
England
|
4169826
|
|
NTL
Limited
|
England
|
2586701
|
|
NTL
Manchester Cablevision Holding Company
|
England
|
2455631
|
|
NTL
Microclock Services Limited
|
England
|
2861856
|
|
NTL
Midlands Limited
|
England
|
2357645
|
|
NTL
Xxxxxx Keynes Limited
|
England
|
2410808
|
|
NTL
National Networks Limited
|
England
|
5174655
|
|
NTL
Networks Limited
|
England
|
3045209
|
|
NTL
North CableComms Holdings, Inc.
|
Delaware
|
|
|
NTL
North CableComms Management, Inc.
|
Delaware
|
|
|
NTL
Partcheer Company Limited
|
England
|
2861817
|
|
NTL
Programming Subsidiary Company
|
Delaware
|
|
|
NTL
Rectangle Limited
|
England
|
4329656
|
|
NTL
Sideoffer Limited
|
England
|
2927099
|
|
NTL
Solent Company
|
Delaware
|
|
|
NTL
Solent Telephone and Cable TV Company Limited
|
England
|
2511653
|
|
NTL
South CableComms Holdings, Inc.
|
Delaware
|
|
|
NTL
South CableComms Management, Inc.
|
Delaware
|
|
|
NTL
Xxxxx Xxxxxxx Xxxxxxx
|
Xxxxxxx
|
0000000
|
|
XXX
Xxxxx Xxxxx Limited
|
England
|
2857050
|
|
NTL
Streetunique Projects Limited
|
England
|
2851203
|
|
NTL
Streetunit Projects Limited
|
England
|
2851201
|
|
NTL
Streetusual Services Limited
|
England
|
2851019
|
|
NTL
Streetvision Services Limited
|
England
|
2851020
|
|
NTL
Streetvital Services Limited
|
England
|
2851021
|
|
NTL
Streetwarm Services Limited
|
England
|
2851011
|
|
NTL
Streetwide Services Limited
|
England
|
2851013
|
|
NTL
Strikeagent Trading Limited
|
England
|
2851014
|
|
NTL
Strikeamount Trading Limited
|
England
|
2851015
|
|
NTL
Strikeapart Trading Limited
|
England
|
2851018
|
|
NTL
Surrey Company
|
Delaware
|
|
|
NTL
Sussex Company
|
Delaware
|
|
|
NTL
Systems Limited
|
England
|
3217975
|
|
NTL
Technical Support Company Limited
|
England
|
2512756
|
|
NTL
Teesside Limited
|
England
|
2532188
|
|
NTL
Telecom Services Limited
|
England
|
2937788
|
|
NTL
UK CableComms Holdings, Inc.
|
Delaware
|
|
|
NTL
UK Telephone and Cable TV Holding Company Limited
|
England
|
2511877
|
|
NTL
Victoria Limited
|
England
|
5685196
|
|
NTL
Xxxxxxxx XX Limited
|
England
|
5685189
|
|
NTL
Wessex Company
|
Delaware
|
|
|
NTL
Westminster Limited
|
England
|
1735641
|
|
NTL
Winston Holdings Limited
|
England
|
3290821
|
|
NTL
Winston Holdings, Inc.
|
Delaware
|
|
|
NTL
Wirral Company
|
Delaware
|
|
|
NTL
Wirral Telephone and Cable TV Company
|
England
|
2511873
|
|
VMIH
Sub Limited (formerly known as NTLIH Sub Limited)
|
England
|
5316140
|
|
Oxford
Cable Limited
|
England
|
2450228
|
|
Prospectre
Limited
|
Scotland
|
SC145280
|
|
Secure
Backup Systems Limited
|
England
|
3130333
|
|
South
CableComms Holdings, Inc.
|
Delaware
|
|
|
South
CableComms L.L.C.
|
Delaware
|
|
|
South
CableComms Management, Inc.
|
Delaware
|
|
|
Southern
East Anglia Cable Limited
|
England
|
2905929
|
|
Xxxxxxxx
Communications Limited
|
England
|
2381842
|
|
Swindon
Cable Limited
|
England
|
318216
|
|
Tamworth
Cable Communications Limited
|
England
|
3016602
|
|
Virgin
Net Limited
|
England
|
2833330
|
|
Vision
Networks Services UK Limited
|
England
|
3135501
|
|
Wessex
Cable Limited
|
England
|
2433185
|
|
Winston
Investors L.L.C.
|
Delaware
|
|
|
XL
Debt Recovery Agency Limited
|
England
|
3303903
|
|
X-Tant
Limited
|
England
|
3580901
|
|
TELEWEST
GROUP COMPANIES
|
||
|
Birmingham
Cable Corporation Limited
|
England
|
2170379
|
|
Birmingham
Cable Limited
|
England
|
2244565
|
|
Cable
Camden Limited
|
England
|
1795642
|
|
Cable
Enfield Limited
|
England
|
2466511
|
|
Cable
Xxxxxxx & Islington Limited
|
England
|
1795641
|
|
Cable
Haringey Limited
|
England
|
1808589
|
|
Cable
London Limited
|
England
|
1794264
|
|
Central
Cable Holdings Limited
|
England
|
3008567
|
|
Crystal
Palace Radio Limited
|
England
|
1459745
|
|
Filegale
Limited
|
England
|
2804553
|
|
General
Cable Group Limited
|
England
|
2872852
|
|
General
Cable Holdings Limited
|
England
|
2798236
|
|
General
Cable Limited
|
England
|
2369824
|
|
Imminus
Limited
|
England
|
1785381
|
|
Middlesex
Cable Limited
|
England
|
2460325
|
|
Sheffield
Cable Communications Limited
|
England
|
2465953
|
|
Southwestern
Xxxx International Holdings Limited
|
England
|
2378768
|
|
Telewest
Communications (Central Lancashire) Limited
|
England
|
1737862
|
|
Telewest
Communications (Cotswolds) Limited
|
England
|
1743081
|
|
Telewest
Communications (Liverpool) Limited
|
England
|
1615567
|
|
Telewest
Communications (London South) Limited
|
England
|
1697437
|
|
Telewest
Communications (Midlands and North West) Limited
|
England
|
2795350
|
|
Telewest
Communications (Midlands) Limited
|
England
|
1882074
|
|
Telewest
Communications (Nominees) Limited
|
England
|
2318746
|
|
Telewest
Communications (North East) Limited
|
England
|
2378214
|
|
Telewest
Communications (North West) Limited
|
England
|
2321124
|
|
Telewest
Communications (South East) Limited
|
England
|
2270764
|
|
Telewest
Communications (South Thames Estuary) Limited
|
England
|
2270763
|
|
Telewest
Communications (South West) Limited
|
England
|
2271287
|
|
Telewest
Communications (St. Helens & Knowsley) Limited
|
England
|
2466599
|
|
Telewest
Communications (Tyneside) Limited
|
England
|
2407676
|
|
Telewest
Communications (Wigan) Limited
|
England
|
2451112
|
|
Telewest
Communications Cable Limited
|
England
|
2883742
|
|
Telewest
Communications Group Limited
|
England
|
2514287
|
|
Telewest
Communications Holdings Limited
|
England
|
2982404
|
|
Telewest
Communications Networks Limited
|
England
|
3071086
|
|
Telewest
Limited
|
England
|
3291383
|
|
Telewest
Parliamentary Holdings Limited
|
England
|
2514316
|
|
Telewest
UK Limited
|
England
|
4925679
|
|
The
Cable Corporation Limited
|
England
|
2075227
|
|
Theseus
No. 1 Limited
|
England
|
2994027
|
|
Theseus
No. 2 Limited
|
England
|
2994061
|
|
Windsor
Television Limited
|
England
|
1745542
|
|
Yorkshire
Cable Communications Limited
|
England
|
2490136
|
|
The
Yorkshire Cable Group Limited
|
England
|
2782818
|
|
EuroBell
(Holdings) Limited
|
England
|
2904215
|
|
EuroBell
(Sussex) Limited
|
England
|
2272340
|
|
EuroBell
(South West) Limited
|
England
|
1796131
|
|
EuroBell
(Xxxx Xxxx) Limited
|
England
|
2886001
|
|
EuroBell
(XXX) Limited
|
England
|
3373001
|
|
EuroBell
Internet Services Limited
|
England
|
3172207
|
|
EuroBell
CPE Limited
|
England
|
2742145
|
|
EuroBell
Limited
|
England
|
2983427
|
|
EMS
Investments Limited
|
England
|
3373057
|
|
EuroBell
(No. 2) Limited
|
England
|
3405634
|
|
EuroBell
(No. 3) Limited
|
England
|
3006948
|
|
EuroBell
(No. 4) Limited
|
England
|
2983110
|
|
SCOTTISH
COMPANIES
|
||
|
Telewest
Communications (Dundee & Perth) Limited
|
Scotland
|
SC096816
|
|
Telewest
Communications (Motherwell) Limited
|
Scotland
|
SC121617
|
|
Telewest
Communications (Scotland Holdings) Limited
|
Scotland
|
SC150058
|
|
Telewest
Communications (Scotland) Limited
|
Scotland
|
SC80891
|
|
JERSEY
COMPANY
|
||
|
Birmingham
Cable Finance Limited
|
Xxxxxx
|
00000
|
|
PARTNERSHIPS
AND JOINT VENTURES
|
||
|
Avon
Cable Joint Venture
|
England
|
|
|
Avon
Cable Limited Partnership
|
Colorado
|
|
|
Cotswolds
Cable Limited Partnership
|
Colorado
|
|
|
Edinburgh
Cable Limited Partnership
|
Colorado
|
|
|
Estuaries
Cable Limited Partnership
|
Colorado
|
|
|
London
South Cable Partnership
|
Colorado
|
|
|
TCI/US
West Cable Communications Group
|
Colorado
|
|
|
Telewest
Communications (London South) Joint Venture
|
England
|
|
|
Telewest
Communications (Cotswolds) Venture
|
England
|
|
|
Telewest
Communications (North East) Partnership
|
England
|
|
|
Telewest
Communications (Scotland) Venture
|
England
|
|
|
Telewest
Communications (South East) Partnership
|
England
|
|
|
Tyneside
Cable Limited Partnership
|
Colorado
|
|
|
United
Cable (London South) Limited Partnership
|
Colorado
|
|
|
FLEXTECH
|
||
|
Flextech
Broadband Limited
|
England
|
4125315
|
|
Flextech
Broadcasting Limited
|
England
|
4125325
|
|
Screenshop
Limited
|
England
|
3529106
|
|
Living
TV Limited
|
England
|
2802598
|
|
Trouble
TV Limited
|
England
|
1733724
|
|
Challenge
TV
|
England
|
2721189
|
|
Bravo
TV Limited
|
England
|
2342064
|
|
Xx
Xxxxx Limited
|
England
|
4170969
|
|
United
Artists Investments Limited
|
England
|
2761569
|
|
Flextech
Business News Limited
|
England
|
2954531
|
|
Continental
Shelf 16 Limited
|
England
|
3005499
|
|
TVS
Television Limited
|
England
|
591652
|
|
TVS
Pension Fund Trustees Limited
|
England
|
1539051
|
|
Telso
Communications Limited
|
England
|
2067186
|
|
Flextech
Rights Limited
|
England
|
2981104
|
|
Minotaur
International Limited
|
England
|
3059563
|
|
Virgin
Media Television Limited (formerly known as Flextech Television
Limited)
|
England
|
2294553
|
|
Interactive
Digital Sales Limited
|
England
|
4257717
|
|
Flextech
Music Publishing Limited
|
England
|
3673917
|
|
Flextech
(1992) Limited
|
England
|
1190025
|
|
Flextech
Media Holdings Limited
|
England
|
2678886
|
|
Flextech
(Kindernet Investment) Limited
|
England
|
1260228
|
|
Flextech-Flexinvest
Limited
|
England
|
1192945
|
|
Flextech
IVS Limited
|
England
|
2678882
|
|
Flextech
Family Channel Limited
|
England
|
2856303
|
|
Flextech
Distribution Limited
|
England
|
2678883
|
|
Flextech
Childrens Channel Limited
|
England
|
267881
|
|
Flextech
Communications Limited
|
England
|
2588902
|
|
Flextech
(Travel Channel) Limited
|
England
|
3427763
|
|
Flextech
Digital Broadcasting Limited
|
England
|
3298737
|
|
Flextech
Video Games Limited
|
England
|
2670829
|
THE
RESTRICTED GUARANTORS
|
Name
|
Jurisdiction
of Incorporation
|
Company
number (if applicable)
|
|
NTL
|
||
|
Chartwell
Investors L.P.
|
Delaware
|
|
|
NNS
UK Holdings 1 LLC
|
Delaware
|
|
|
NNS
U.K. Holdings 2, Inc.
|
Delaware
|
|
|
North
CableComms Holdings, Inc.
|
Delaware
|
|
|
North
CableComms L.L.C.
|
Delaware
|
|
|
North
CableComms Management, Inc.
|
Delaware
|
|
|
NTL
Xxxxxx Cablevision Holding Company
|
England
|
2422198
|
|
NTL
Bromley Company
|
Delaware
|
|
|
NTL
Cablecomms Xxxxxx
|
England
|
1883383
|
|
NTL
Cablecomms Bromley
|
England
|
2422195
|
|
NTL
Cablecomms Bury and Rochdale
|
England
|
2446183
|
|
NTL
Cablecomms Cheshire
|
England
|
2379804
|
|
NTL
Cablecomms Derby
|
England
|
2387713
|
|
NTL
Cablecomms East Lancashire
|
England
|
2114543
|
|
NTL
Cablecomms Greater Manchester
|
England
|
2407924
|
|
NTL
Cablecomms Group Limited
|
England
|
3024703
|
|
ntl
CableComms Group, Inc.
|
Delaware
|
|
|
NTL
Cablecomms Holdings No. 1 Limited
|
England
|
3709869
|
|
NTL
Cablecomms Holdings No. 2 Limited
|
England
|
3709840
|
|
NTL
Cablecomms Macclesfield
|
England
|
2459067
|
|
NTL
Cablecomms Oldham and Tameside
|
England
|
2446185
|
|
NTL
Cablecomms Solent
|
England
|
2422654
|
|
NTL
Cablecomms Staffordshire
|
England
|
2379800
|
|
NTL
Cablecomms Stockport
|
England
|
2443484
|
|
NTL
Cablecomms Surrey
|
England
|
2531586
|
|
NTL
Cablecomms Sussex
|
England
|
2266092
|
|
NTL
Cablecomms Wessex
|
England
|
2410378
|
|
NTL
Cablecomms Wirral
|
England
|
2531604
|
|
NTL
Chartwell Holdings 2, Inc.
|
Delaware
|
|
|
NTL
Chartwell Holdings, Inc.
|
Delaware
|
|
|
NTL
Chartwell Holdings Limited
|
England
|
3290823
|
|
NTL
Derby Cablevision Holding Company
|
England
|
2422310
|
|
Virgin
Media Dover LLC (formerly known as NTL Dover LLC)
|
||
|
NTL
Glasgow
|
Scotland
|
SC075177
|
|
NTL
Glasgow Holdings Limited
|
England
|
4170072
|
|
NTL
Kirklees
|
England
|
2495460
|
|
NTL
Kirklees Holdings Limited
|
England
|
4169826
|
|
NTL
Manchester Cablevision Holding Company
|
England
|
2455631
|
|
NTL
North CableComms Holdings, Inc.
|
Delaware
|
|
|
NTL
North CableComms Management, Inc.
|
Delaware
|
|
|
NTL
Programming Subsidiary Company
|
Delaware
|
|
|
NTL
Solent Company
|
Delaware
|
|
|
NTL
South CableComms Holdings, Inc.
|
Delaware
|
|
|
NTL
South CableComms Management, Inc.
|
Delaware
|
|
|
NTL
Surrey Company
|
Delaware
|
|
|
NTL
Sussex Company
|
Delaware
|
|
|
NTL
(Triangle) LLC
|
Delaware
|
|
|
NTL
UK CableComms Holdings, Inc.
|
Delaware
|
|
|
NTL
Wessex Company
|
Delaware
|
|
|
NTL
Winston Holdings Limited
|
England
|
3290821
|
|
NTL
Winston Holdings, Inc.
|
Delaware
|
|
|
NTL
Wirral Company
|
Delaware
|
|
|
NTL
Wirral Telephone and Cable TV Company
|
England
|
2511873
|
|
South
CableComms Holdings, Inc.
|
Delaware
|
|
|
South
CableComms L.L.C.
|
Delaware
|
|
|
South
CableComms Management, Inc.
|
Delaware
|
|
|
Winston
Investors L.L.C.
|
Delaware
|
|
|
TELEWEST
|
||
|
Avon
Cable Limited Partnership
|
Colorado
|
|
|
Cotswolds
Cable Limited Partnership
|
Colorado
|
|
|
Edinburgh
Cable Limited Partnership
|
Colorado
|
|
|
Estuaries
Cable Limited Partnership
|
Colorado
|
|
|
London
South Cable Partnership
|
Colorado
|
|
|
TCI/US
West Cable Communications Group
|
Colorado
|
|
|
Tyneside
Cable Limited Partnership
|
Colorado
|
|
|
United
Cable (London South) Limited Partnership
|
Colorado
|
|
To:
|
Deutsche
Bank AG, London Branch as Facility
Agent
|
This Deed
is dated [●] and relates to:
|
|
(a)
|
the
facilities agreement dated 3 March 2006 (as from time to time amended,
varied, novated or supplemented, the “Facilities Agreement”)
whereby certain facilities in a maximum aggregate amount of
£5,165,652,430.56, €500,000,000 and $650,000,000 were made available to
the Borrowers (including Virgin Media Investment Holdings Limited
(formerly known as NTL Investment Holdings Limited)) under the guarantee
of the Guarantors, by a group of banks and other financial institutions on
whose behalf Deutsche Bank AG, London Branch acts as Facility Agent in
connection therewith;
|
|
|
(b)
|
the
HYD Intercreditor Agreement
|
|
|
(c)
|
the
Group Intercreditor Agreement
|
|
|
(d)
|
the
Security Trust Agreement.
|
|
1.
|
Terms
defined in the Facilities Agreement shall, subject to any contrary
indication, have the same meanings in this Deed. The terms
“Lender”, “Transferee”, “Lender’s Participation” and “Portion Transferred”
are defined in the Schedule to this
Deed.
|
|
2.
|
The
Lender:
|
|
|
(a)
|
confirms
that the details in the Schedule to this Deed are an accurate summary
of the Lender’s Participation in the Facilities Agreement and the Interest
Periods or Terms (as the case may be) for existing Advances as at the date
of this Deed; and
|
|
|
(b)
|
requests
the Transferee to accept and procure the transfer by novation to the
Transferee of the Portion Transferred by countersigning and delivering
this Deed to the Facility Agent at its address for the service of notices
designated to the Facility Agent in accordance with the Facilities
Agreement.
|
|
3.
|
The
Transferee requests the Facility Agent to accept this Deed as being
delivered to the Facility Agent pursuant to and for the purposes of
Clause 36.5 (Transfer Deed) of the
Facilities Agreement so as to take effect in accordance with the terms of
it on the Transfer Date or on such later date as may be determined in
accordance with the terms of it.
|
|
4.
|
The
Transferee confirms that it has received a copy of the Facilities
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
rely on the Lender to check or enquire on its behalf into the legality,
validity, effectiveness, adequacy, accuracy or completeness of any such
information and further agrees that it has not relied and will not rely on
the Lender to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of any
Obligor.
|
|
5.
|
The
Transferee undertakes with the Lender and each of the other parties to the
Facilities Agreement that it will perform in accordance with their terms
all those obligations which by the terms of the Finance Documents will be
assumed by it after delivery of this Deed to the Facility Agent and
satisfaction of the conditions (if any) subject to which this Deed is
expressed to take effect.
|
|
6.
|
The
Lender makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facilities Agreement, any other Finance Document or
other document relating to it and assumes no responsibility for the
financial condition of any Obligor or for the performance and observance
by any Obligor of any of its obligations under the Facilities Agreement,
any Finance Document or any other document relating to it and any and all
such conditions and warranties, whether express or implied by Law or
otherwise, are excluded.
|
|
7.
|
The
Lender gives notice that nothing in this Deed or in the Facilities
Agreement (or any Finance Document or other document relating to it) shall
oblige the Lender (a) to accept a re-transfer from the Transferee of the
whole or any part of its rights, benefits and/or obligations under the
Finance Documents transferred pursuant to this Deed or (b) to support
any losses directly or indirectly sustained or incurred by the Transferee
for any reason whatsoever (including the failure by any Obligor or any
other party to the Finance Documents (or any document relating to them) to
perform its obligations under any such document) and the Transferee
acknowledges the absence of any such obligation as is referred to in
(a) and (b) above.
|
|
8.
|
[The Transferee
represents to the Facility Agent and to the Borrower that is a UK Bank
Lender.]1
|
OR
[The Transferee represents to
the Facility Agent and to the Borrower that it is a UK Non-Bank Lender and falls
within paragraph [(a)/(b)]2 of the definition
thereof.]3
OR
[The Transferee represents to
the Facility Agent and to the Borrower that it is a UK Treaty Lender.]4 *
OR
[The Transferee represents to
the Facility Agent and to the Borrower that it is a US Accession Lender.]
_________________________________
|
1
|
A
Lender giving this representation is a Qualifying UK Lender and may lend
to the US Borrower (in respect of the B4 Facility or the B10 Facility
only) and/or to a UK Borrower (in respect of any
Facility).
|
|
3
|
A
Lender giving this representation is a Qualifying UK Lender and may lend
to the US Borrower (in respect of the B4 Facility or the B10 Facility
only) and/or to a UK Borrower (in respect of any
Facility).
|
|
4
|
A
Lender giving this representation is a Qualifying UK Lender and may lend
to the US Borrower (in respect of the B4 Facility or the B10 Facility
only) and/or to a UK Borrower (in respect of any
Facility).
|
|
*
|
Any
Lender not able to give one of the three preceding representations is a US
Accession Lender and may only lend to the US Borrower under the B4
Facility or the B10 Facility .
|
|
9.
|
Attached
to this Transfer Certificate are the following documents evidencing the
tax status of the Transferee as indicated
above:
|
|
UK
Bank Lender
|
(i) certificate
of incorporation; and
(ii) copy
of banking licence.
|
| UK Non- Bank Lender | (i) certificate
of incorporation in the UK; or (ii) other evidence that the Section 349B
Taxes Act conditions are met. |
|
UK
Treaty Lender or
US
Accession Lender
|
certificate
of incorporation or registration certificate (if not body
corporate)
|
ACCESSION
TO THE HYD INTERCREDITOR AGREEMENT
The
Transferee hereby agrees with each other person who is or becomes party to the
HYD Intercreditor Agreement in accordance with the terms thereof that with
effect on and from the date hereof, it will be bound by the HYD Intercreditor
Agreement as a Senior Creditor as if it had been an original party thereto in
such capacity.
ACCESSION
TO THE GROUP INTERCREDITOR AGREEMENT
The
Transferee hereby agrees with each other person who is or becomes party to the
Group Intercreditor Agreement in accordance with the terms thereof that with
effect on and from the date hereof, it will be bound by the Group Intercreditor
Agreement as a Senior Creditor as if it had been an original party thereto in
such capacity.
ACCESSION
TO THE SECURITY TRUST AGREEMENT
The
Transferee hereby agrees with each other person who is or becomes party to the
Security Trust Agreement in accordance with the terms thereof that with effect
on and from the date hereof, it will be bound by the Security Trust Agreement as
a Lender as if it had been an original party thereto in such
capacity. This Deed and the rights, benefits and obligations of the
parties hereunder shall be governed by and construed in accordance with English
Law.
IN WITNESS WHEREOF this Deed
has been executed as a deed by the parties hereto and is delivered on the date
written above.
THE
SCHEDULE
|
1.
|
Lender:
|
|||
|
2.
|
Transferee:
|
|||
|
3.
|
Transfer
Date:
|
|||
|
4.
|
Lender’s
Participation in Term Facilities
|
Portion
Transferred
|
||
|
(a)
|
Lender’s
Available A Facility Commitment*
|
(a)
|
||
|
(b)
|
Lender’s
Available A1 Facility Commitment*
|
(b)
|
||
|
(c)
|
Lender’s
Available A2 Facility Commitment*
|
(c)
|
||
|
(d)
|
Lender’s
Available A3 Facility Commitment*
|
(d)
|
||
|
(e)
|
Lender’s
Available B1 Facility Commitment*
|
(e)
|
||
|
(f)
|
Lender’s
Available B2 Facility Commitment*
|
(f)
|
||
|
(g)
|
Lender’s
Available B3 Facility Commitment*
|
(g)
|
||
|
(h)
|
Lender’s
Available B4 Facility Commitment*
|
(h)
|
||
|
(i)
|
Lender’s
Available B5 Facility Commitment*
|
(i)
|
||
|
(j)
|
Lender’s
Available B6 Facility Commitment*
|
(j)
|
||
|
(k)
|
Lender’s
Available B7 Facility Commitment*
|
(k)
|
||
|
(l)
|
Lender’s
Available B8 Facility Commitment*
|
(l)
|
||
|
(m)
|
Lender’s
Available B9 Facility Commitment*
|
(m)
|
||
|
(n)
|
Lender’s
Available B10 Facility Commitment*
|
(n)
|
||
|
(o)
|
Lender’s
Available B11 Facility Commitment*
|
(o)
|
||
|
(p)
|
Lender’s
Availabe B12 Facility Commitment*
|
(p)
|
||
|
(q)
|
Lender’s
Available C Facility Commitment*
|
(q)
|
||
|
5.
|
Lender’s
Participation in Term Facility Outstandings
|
Interest
Period
|
Portion
Transferred
|
|
|
A
Facility Advances
|
(a)
|
(a)
|
||
|
A1
Facility Advances
|
(b)
|
(b)
|
||
|
A2
Facility Advances
|
(c)
|
(c)
|
||
|
A3
Facility Advances
|
(d)
|
(d)
|
||
|
B1
Facility Advances
|
(e)
|
(e)
|
||
|
B2
Facility Advances
|
(f)
|
(f)
|
||
|
B3
Facility Advances
|
(g)
|
(g)
|
||
|
B4
Facility Advances
|
(h)
|
(h)
|
||
|
B5
Facility Advances
|
(i)
|
(i)
|
||
|
B6
Facility Advances
|
(j)
|
(j)
|
||
|
B7
Facility Advances
|
(k)
|
(k)
|
||
|
B8
Facility Advances
|
(l)
|
(l)
|
||
|
B9
Facility Advances
|
(m)
|
(m)
|
||
|
B10
Facility Advances
|
(n)
|
(n)
|
||
|
B11
Facility Advances
|
(o)
|
(o)
|
||
|
B12
Facility Advances
|
(p)
|
(p)
|
||
|
C
Facility Advances
|
(q)
|
(q)
|
||
|
6.
|
[(a)]
|
Lender’s
Revolving Facility Commitment
|
Portion
Transferred
|
|
|
[(b)
|
Lender’s
Secondary Revolving Facility Commitment
|
Portion
Transferred
|
||
|
[(c)
|
Lender’s
Ancillary Facility Commitment
|
Portion
Transferred 100%]
|
||
|
7.
|
[(a)]
|
Lender’s
Participation in Revolving Facility Outstandings
|
Term
|
Portion
Transferred
|
|
[(b)]
|
Lender’s
Participation in Secondary Revolving Facility Advances
|
|||
|
[(c)
|
Lender’s
Participation in Ancillary Facility Outstandings
|
Portion
Transferred 100%]
|
||
|
[8.
|
Documentary
Credits Issued
|
Term
and Expiry Date
|
Portion
Transferred]
|
|
*Details
of the Lender’s Available Commitment should not be completed after the
applicable Termination Date.
|
The Lender
EXECUTED
as a DEED by for and on
behalf
of
[ ]
By:
|
The Transferee
EXECUTED
as a DEED by for and on
behalf
of
[ ]
By:
|
|
The Facility Agent
EXECUTED
as a DEED for and on behalf of
Deutsche
Bank AG, London Branch
By:
|
By:
|
ADMINISTRATIVE
AND FACILITY OFFICE DETAILS
|
1.
|
Facility Office Address
(in relation to the Transferee’s tax status as set out in paragraph 8
above):
|
Please
provide administrative details of the Transferee, to the extent such details
have not been pro
