EXHIBIT 10.62
CONFORMED COPY
DATED 27TH MARCH 1998
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TELEWEST COMMUNICATIONS NETWORKS LIMITED
BORROWER
THE BANK OF NEW YORK
CIBC WOOD GUNDY PLC
CHASE MANHATTAN PLC
GREENWICH NATWEST
AND
THE TORONTO-DOMINION BANK
ARRANGERS
THE TORONTO-DOMINION BANK
AGENT
THE TORONTO-DOMINION BANK
SECURITY TRUSTEE
LOAN AGREEMENT
FOR A
(POUND)100,000,000 CREDIT FACILITY
AS AMENDED PURSUANT TO AN AMENDMENT AGREEMENT
DATED 7TH APRIL 1998
XXXXXX XXXX
London
CONTENTS
CLAUSE HEADING PAGE NO
1 Purpose and Definitions.......................................................................1
2 The Facility.................................................................................28
3 Conditions...................................................................................29
4 Revolving Advances...........................................................................30
5 Interest and Interest Periods; alternative interest rates....................................33
6 Repayment, prepayment and cancellation.......................................................36
7 Fees and expenses............................................................................40
8 Payments and Taxes; accounts and calculations................................................41
9 Representations and warranties...............................................................46
10 Positive covenants...........................................................................56
11 Negative Covenants...........................................................................65
12 Financial covenants..........................................................................69
13 Events of Default............................................................................75
14 Indemnities..................................................................................82
15 Unlawfulness and Increased Costs; Mitigation................................................83
16 Set-off and Pro Rata Payments................................................................86
17 Assignment, Substitution and Lending Offices.................................................87
18 Arrangers, Agent and Reference Banks.........................................................90
19 Notices and other matters....................................................................96
20 Governing law and jurisdiction...............................................................97
SCHEDULE
1 Part A - The Original Charging Subsidiaries..................................................99
Part B - The Original Charging Partnerships.................................................102
Part C - The Original Non-Charging Subsidiaries.............................................104
Part D - The Banks and their Commitments....................................................105
2 Part A - Form of Drawdown Notice...........................................................108
Part B - Form of Rollover Notice............................................................110
3 Documents and evidence required as conditions precedent.....................................111
4 Calculation of Additional Cost..............................................................114
5 Form of Substitution Certificate............................................................116
6 Part A - Form of Compliance Certificate to be issued by an Authorised Officer of the Borrower120
Part B - Form of Compliance Certificate to be issued by the Auditors of the TCN Group.......122
7 Form of Deed of Subordination...............................................................124
8 Encumbrances................................................................................140
9 Part A - The Avon Licences..................................................................141
Part B - The Cotswolds Licences.............................................................141
Part C - The London South Licences..........................................................142
Part D - The North East Licences............................................................143
Part E - The Scotland Licences..............................................................143
Part F - The South East Licences............................................................146
Part G - The SBCC Licences..................................................................147
Part H - The National Network Licence.......................................................150
10 Principal Agreements........................................................................151
Part A - BT Interconnect Agreements.........................................................151
Part B - Sky Standard Cable Operator Agreements.............................................154
THIS AGREEMENT is dated 27th March, 1998
BETWEEN:
(1) TELEWEST COMMUNICATIONS NETWORKS LIMITED as Borrower;
(2) THE SUBSIDIARIES OF THE BORROWER set out in part A of Schedule 1;
(3) THE ASSOCIATED PARTNERSHIPS OF THE BORROWER set out in part B of Schedule 1;
(4) THE BANK OF NEW YORK, CIBC WOOD GUNDY PLC, CHASE MANHATTAN PLC,
GREENWICH NATWEST (a division of NATIONAL WESTMINSTER BANK PLC) and THE
TORONTO-DOMINION BANK as Arrangers;
(5) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set
out in Part D of Schedule 1;
(6) THE TORONTO-DOMINION BANK as Agent; and
(7) THE TORONTO-DOMINION BANK as Security Trustee.
IT IS AGREED as follows:
1 PURPOSE AND DEFINITIONS
1.1 Purpose
This Agreement sets out the terms and conditions upon and subject to
which all of the Banks agree, according to their several obligations,
to make available to the Borrower a revolving credit facility of up to
(pound)100,000,000 to be used (i) to assist in the financing of the
capital expenditure, working capital requirements and other permitted
related activities for the construction and operation of all the
(directly or indirectly) wholly-owned (save for minority interests
approved prior to the date hereof) cable telephony and television
franchises of the Borrower, (ii) to fund the loans to Telewest referred
to in paragraph (e) of the definition of Permitted Investments, (iii)
to make payments of interest to Telewest on loans made to the Borrower
by Telewest in order to enable Telewest to pay equivalent cash interest
on the Senior Securities and/or to pay the costs and expenses of
Telewest (up to a maximum of the amount set out in paragraph (b)(i) of
the definition of Permitted Payments), (iv) to make loans to TCN
Entities in order to facilitate the purposes set out in (i) to (iii)
above, (v) to repay Advances or to pay interest, fees and expenses
relating to the facility granted pursuant to this Agreement and/or (vi)
to repay from time to time advances made by Telewest under the 1997
Telewest Letter Agreement.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"1997 TELEWEST LETTER AGREEMENT" means the letter agreement dated 11
September 1997 between Telewest and the Borrower regulating the
provision by Telewest to the Borrower of a (pound)50,000,000
uncommitted revolving on-demand credit facility;
"1998 BUDGET" means the budget for the TCN Group for the period
commencing on 1 January 1998 and ending on 31 December 1998 in the
agreed form;
"ACCEDING TCN ENTITIES" means Cable Adnet Limited, Telewest
Communications (Taunton & Bridgwater) Limited and Telewest
Communications Services Limited;
"ADDITIONAL COST" means in relation to any period a percentage
calculated for such period at an annual rate determined by the
application of the formula set out in Schedule 4;
"ADVANCE" means a Revolving Advance or a Term Advance (as applicable);
"AFFILIATE" means each of Birmingham Cable Corporation Limited (no.
2170379), Cable London plc (no. 1794264) and The Cable Corporation
Limited (no. 2075227) for so long as Telewest does not materially
reduce its direct or indirect voting or economic interest in such
company;
"AGENT" means The Toronto-Dominion Bank of Triton Court, 00-00 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX or such other person as may be appointed agent
for the Banks pursuant to clause 18.11;
"ANNUAL BUDGET" means a budget in respect of the TCN Group for each
financial year containing information of the same type and to the same
level of detail as the 1998 Budget or containing such other information
or to such other level of detail as has, at the relevant time, been
approved in writing by the Agent acting on the instructions of the
Majority Banks;
"ARRANGERS" means The Bank of New York of 00 Xxxxxxxx Xxxxxx, Xxxxxx
X0X 0XX, CIBC Wood Gundy plc of Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxx
XX0 0XX, Chase Manhattan plc of 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX,
Greenwich Natwest (a division of National Westminster Bank Plc) of 000
Xxxxxxxxxxx, Xxxxxx XX0X 0XX and The Toronto-Dominion Bank of Triton
Court, 00/00 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"ASSIGNEE" has the meaning ascribed thereto in clause 17.3;
"ASSOCIATED COMPANY" has the meaning attributed thereto in Section 416
of the Income and Corporation Taxes Xxx 0000;
"ASSOCIATED PARTNERSHIP" means, in relation to a company, a partnership
that is controlled by that company, or by that company and one or more
of its Associated Companies together, and a company shall be regarded
as having control of a partnership for those purposes if (directly or
indirectly, including through intermediate Associated Partnerships) it
possesses, is entitled to, or is entitled to acquire:
(a) more than 50% of the assets of the partnership; or
(b) more than 50% of the income of the partnership
or if it (directly or indirectly, including through intermediate
Associated Partnerships) is able to direct how the affairs of the
partnership are conducted;
"AUTHORISED OFFICER" means that officer or officers of the Borrower
authorised to sign Compliance Certificates, Drawdown Notices, Rollover
Notices and any other notices, requests or confirmations referred to in
this Agreement or relating to the facility granted pursuant to this
Agreement;
"AVON LICENCES" means those licences of TCN Entities details of which
are set out in part A of schedule 9;
"BANKING DAY" means a day (other than Saturday or Sunday) on which
dealings in Sterling deposits are carried on in the London Interbank
Market and (if payment is required to be made on such day) on which
banks are open for business in London;
"BANKS" means the banks and financial institutions listed in Part D of
schedule 1 and includes their successors in title, Assignees and
Substitutes;
"BOND AND FLOATING CHARGES" means the second ranking bond and floating
charges, in the agreed form, to be entered into by each Original
Charging Subsidiary which is incorporated in Scotland;
"BORROWED MONEY" means Indebtedness (including, for the avoidance of
doubt, but without double counting, any guarantees of such
Indebtedness) in respect of (i) money borrowed or raised and debit
balances at banks, (ii) any bond, note, loan stock, debenture or
similar debt instrument, (iii) acceptance or documentary credit
facilities, (iv) receivables sold or discounted (otherwise than on a
non-recourse basis), (v) payments for assets or services acquired which
are deferred for a period of 90 days or more after the relevant assets
or services were supplied, (vi) hire purchase contracts, (vii) rental
payments under Finance Leases, (viii) guarantees, bonds, standby
letters of credit or other instruments issued in connection with the
performance of contracts and (ix) any other transaction (including
without limitation forward sale or purchase agreements and issues of
redeemable shares) having the commercial effect of a borrowing or
raising of money entered into for the purpose of financing a person's
operational or capital requirements provided that in making any
calculation of Borrowed Money under this Agreement no Indebtedness
shall be taken into account more than once;
"BORROWER" means Telewest Communications Networks Limited (formerly
Mintdrive Limited) (No. 3071086) whose registered office is at Xxxx 0,
Xxxxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxx, Xxxxxx XX00 0XX;
"BT INTER-CONNECT AGREEMENTS" means the agreements referred to in part
A of Schedule 10;
"CABLE INTERNET" means any arrangements put in place between, inter
alia, members of the TCN Group and others for the development and
provision of internet services via the Cable Systems;
"CABLE SYSTEMS" means the telecommunications and television systems
constructed or to be constructed in the areas covered by the Licences
and includes any part of any such system and all modifications,
substitutions, replacements, renewals and extensions made to such
systems;
"CHARGING PARTNERSHIPS" means the Original Charging Partnerships and
any other partnership which may from time to time accede to this
Agreement and any relevant Security Documents pursuant to a
Supplemental Deed;
"CHARGING SUBSIDIARIES" means the Original Charging Subsidiaries and
any other company which may from time to time accede to this Agreement
and any relevant Security Documents pursuant to a Supplemental Deed;
"COMMITMENT" means in relation to a Bank the amount set opposite its
name in Part D of schedule 1 or, as the case may be, in any relevant
Substitution Certificate, as amended by any relevant term of this
Agreement;
"COMPLIANCE CERTIFICATE" means either (i) a certificate substantially
in the form set out in schedule 6A in relation to the compliance (or
otherwise) with the undertakings in clause 12 issued by an Authorised
Officer in relation to Quarterly Management Accounts or (ii) a
certificate substantially in the form set out in Schedule 6B in
relation to the compliance (or otherwise) with the undertakings in
clause 12 issued by the auditors of the TCN Group in relation to annual
financial statements;
"CONSOLIDATED ANNUALISED TCN GROUP NET OPERATING CASH FLOW" means, for
the TCN Group, twice the aggregate of the Consolidated TCN Group Net
Operating Cash Flow in respect of the relevant Six Month Period for the
TCN Group;
"CONSOLIDATED ANNUALISED TELEWEST GROUP NET OPERATING CASH FLOW" means,
for the Telewest Group, twice the aggregate of the Consolidated
Telewest Group Net Operating Cash Flow in respect of the relevant Six
Month Period for Telewest Group;
"CONSOLIDATED TCN GROUP NET OPERATING CASH FLOW" means, in respect of
each Six Month Period, the Net Income of the TCN Group (plus any
depreciation, amortisation, other non-cash expenses and non-cash taxes,
interest or other charges in respect of Borrowed Money) but excluding:
(a) all sums constituting Management Fees accrued in respect of
such Six Month Period to any member of the TCN Group by any
Restricted Person;
(b) any extraordinary income (except to the extent that the same
is used to meet a related extraordinary expense), net of any
Taxes paid or payable in respect of such income, of the TCN
Group during such Six Month Period;
(c) any interest income, net of any Taxes paid or payable in
respect of such income, of the TCN Group for such Six Month
Period;
(d) any profits or losses attributable to the interest of the TCN
Group in any undertaking (as defined in section 259 Companies
Act 1985) which is not a subsidiary undertaking (as defined in
section 258 Companies Act 1985) of the Borrower;
all as determined in accordance with GAAP used in the preparation of
and as shown in the financial statements, Monthly Management Accounts
or Quarterly Management Accounts in respect of periods within such Six
Month Period prepared and delivered to the Agent pursuant to clause
10.1(f), clause 10.1(g) or clause 10.1(h) (as the case may be);
"CONSOLIDATED TELEWEST GROUP NET OPERATING CASH FLOW" means, in respect
of each Six Month Period, the Net Income of the Telewest Group (plus
any depreciation, amortisation, other non-cash expenses and non-cash
taxes, interest or other charges in respect of Borrowed Money) but
excluding:
(i) any extraordinary income (except to the extent that the same
is used to meet a related extraordinary expense), net of any
Taxes paid or payable in respect of such income, of the
Telewest Group during such Six Month period;
(ii) any interest income, net of any Taxes paid or payable in
respect of such income, of the Telewest Group for such Six
Month Period;
(iii) to the extent included within Net Income any profits or losses
attributable to the interest of the Telewest Group in any
undertaking (as defined in section 259 Companies Act 1985)
which is not a subsidiary undertaking (as defined in section
258 Companies Act 1985) of the Borrower;
all as determined in accordance with GAAP used in the preparation of
and as shown in the financial statements, Monthly Management Accounts
or Quarterly Management Accounts in respect of periods within such Six
Month Period prepared and delivered to the Agent pursuant to clause
10.1(f), clause 10.1(g) or clause 10.1(h) (as the case may be);
"CONTRIBUTION" means in relation to a Bank the principal amount of the
Loan owing to such Bank at any relevant time;
"COTSWOLD LICENCES" means those licences of members of the TCN Group
details of which are set out in Part B of schedule 9;
"COX" means Xxx Communications, Inc. a company incorporated in Delaware
whose principal place of business is 0000 Xxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxx, 00000, XXX;
"DEBENTURE" means the second ranking composite guarantee and debenture
and/or several guarantee and debentures entered into or to be entered
into by the Borrower and each other TCN Entity in favour of the
Security Trustee in the agreed form;
"DEED OF SUBORDINATION" means a deed of subordination to be entered
into between Telewest and the Security Trustee pursuant to the terms of
this Agreement, substantially in the form of schedule 7 or on terms
having substantially the same commercial effect as the form of schedule
7;
"DEFAULT" means any Event of Default or any event or circumstance which
with (i) the giving of any notice referred to in this Agreement, (ii)
the lapse of any period of time referred to in this Agreement or (iii)
the satisfaction of any other condition referred to in this Agreement
(or any combination of (i), (ii) and (iii) above) would constitute an
Event of Default;
"DRAWDOWN DATE" means the date being a Banking Day on which an Advance
is or is to be drawn down;
"DRAWDOWN NOTICE" means a notice substantially in the form of schedule
2A;
"EARNINGS" means all monies whatsoever from time to time due or payable
to any member of the TCN Group arising out of the use or operation of
the Cable Systems including (but without limiting the generality of the
foregoing) all revenues or other payments due from Subscribers, damages
for breach (or payments for variation or termination) of any
Subscriber's Agreement and any sums recoverable from the insurers of
the Cable Systems for loss of use or damage to such systems;
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, assignation, trust arrangement
or security interest of any kind securing any obligation of any person
or any other type of preferential arrangement (including without
limitation title transfer and/or retention arrangements having similar
effect);
"ENVIRONMENTAL CLAIM" means any claim, notice of violation,
prosecution, demand, action, official warning, abatement or other order
(condition or otherwise), relating to Environmental Matters and any
notification or order requiring compliance with the terms of any
Environmental Licence or Environmental Law;
"ENVIRONMENTAL LAWS" includes all or any laws, statutes, regulations,
treaties, and judgments of any governmental authority or agency or any
regulatory body in any jurisdiction in which any member of the TCN
Group is formed or carries on business or the European Community
relating to Environmental Matters applicable to any member of the TCN
Group and/or construction, installation and operation of cable
television and telecommunications systems in the TCN Franchises and/or
any other activities from time to time carried on by any member of the
TCN Group and/or the occupation or use of any property owned, leased or
occupied by any member of the TCN Group;
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law
(but excluding, for the avoidance of doubt, planning permission, listed
building consent and building regulation approvals) for the
construction, installation and operation of cable television and
telecommunications systems in the TCN Franchises and/or any other
activities from time to time carried on by any member of the TCN Group;
"ENVIRONMENTAL MATTERS" means: (i) any generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling or
manufacture of any waste (as defined in the Environmental Protection
Act 1990) or any Relevant Substance; (ii) nuisance, noise, defective
premises, health and safety at work or elsewhere; and (iii) the
pollution, conservation or protection of the environment (both natural
and built) or of man or any living organism supported by the
environment (both natural and built);
"EVENT OF DEFAULT" means any of the events or circumstances described
in clause 13.1;
"EXCESS CASH FLOW" means the Consolidated TCN Group Net Operating Cash
Flow for the relevant Six Month Period, as shown in the relevant
Compliance Certificate less (i) any Total TCN Group Cash Paying Debt
Interest Charges accrued during such Six Month Period, (ii) cash
repayments and/or prepayments of any Borrowed Money of the TCN Group
made during such Six Month Period and (iii) capital expenditure of the
TCN Group whether or not incurred to the extent that the same is
included in the Annual Budget for such Six Month Period as delivered to
the Agent under this Agreement;
"FINANCE LEASE" means a lease treated as a finance lease pursuant to
applicable accounting standards (including at the date of this
Agreement, Statement of Standard Accounting Practice 21);
"GAAP" means generally accepted accounting principles and practices in
the United Kingdom;
"IMMATERIAL GROUP ENTITY" means any member of the TCN Group other than
the Borrower which (i) is dormant for the purposes of section 250(3) of
the Companies Xxx 0000 and (ii)(a) does not trade, (b) has no interest,
legal or beneficial, in the Licences, the Cable Systems, the Earnings,
the Principal Agreements, the share capital of any other member of the
TCN Group which is not an Immaterial Group Entity or any other assets
used in the business of the TCN Group and (c) is solvent (within the
meaning of Section 123 of the Insolvency Xxx 0000 or otherwise);
"INDEBTEDNESS" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"INDEMNITY" means an indemnity issued or to be issued by any TCN Entity
in favour of a bank in relation to a bond issued by such bank in favour
of any regulatory body or other person pursuant to any
Telecommunications and Cable Laws;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trade xxxx, service
xxxx, registered design, trade name or copyright required to carry on
the business of constructing, installing or operating cable television
and telecommunication systems in the TCN Franchises and such other
business as may be permitted by the terms of this Agreement and which
is carried on at the relevant time;
"INTEREST PAYMENT DATE" means the last day of an Interest Period (and,
in the case of an Interest Period of more than six months, the dates
falling at six monthly intervals from the commencement of such Interest
Period);
"INTEREST PERIOD" means, in relation to any Advance or the Loan, each
period for calculation of interest in respect of such Advance or the
Loan ascertained in accordance with clauses 5.3, 5.4 and 5.5;
"LIBOR" means, in relation to a particular period the arithmetic mean
(expressed as a percentage rounded upwards if necessary to the nearest
four decimal places) of the rates respectively quoted to the Agent by
each of the Reference Banks at the request of the Agent as such
Reference Bank's offered rate for deposits of Sterling in an amount
approximately equal to the amount in relation to which LIBOR is to be
determined for a period equivalent to such period to prime banks in the
London Interbank Market at or about 11.00 a.m. on the first day of such
period;
"LICENCES" means the Cotswold Licences, the South East Licences, the
North East Licences, the London South Licences, the Avon Licences, the
Scotland Licences, the SBCC Licences, the National Network Licence and,
if applicable, any other licences issued to any of the TCN Entities
under any Telecommunications and Cable Laws;
"LOAN" means the aggregate principal amount owing to the Banks under
this Agreement at any relevant time;
"LOCAL DELIVERY OPERATOR" means a person holding a licence to operate a
cable telephony and/or cable television system under a
Telecommunications and Cable Law in respect of a prescribed
geographical area or any person in relation to which such person is a
wholly owned (directly or indirectly) Subsidiary;
"LONDON SOUTH LICENCES" means those licences of members of the TCN
Group details of which are set out in part C of schedule 9;
"LONG RANGE PLAN" means the operational projections for the Telewest
Group and the TCN Group dated 10 December 1997 and the quarterly
financing forecast dated 2 February 1998;
"MAJORITY BANKS" means Banks the aggregate of whose Contributions at
any relevant time exceeds 662/3 per cent. of the Loan or, if no Advance
is then outstanding, the aggregate of whose Commitments exceeds 662/3
per cent. of the total of the Commitments of all of the Banks;
"MANAGEMENT FEES" means any management, consultancy or similar fees
payable by any TCN Entity to any Restricted Person or by any Restricted
Person to any TCN Entity, as applicable;
"MARGIN" shall be calculated in accordance with clause 5.2;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
ability of the TCN Entities (taken as a whole) to perform all or any of
their respective obligations under or otherwise comply with the terms
of this Agreement or any of the Security Documents;
"MAXIMUM FORECASTED DEBT REQUIREMENT" means, in relation to any TCN
Entities or assets which have been acquired by the TCN Group under
paragraph (d) of the definition of Permitted Investments, the maximum
amount, estimated by the Borrower in good faith and set out in the
relevant investment analysis, that such TCN Entities (taken as a whole)
will be required to raise as Borrowed Money (together with the amount
of Borrowed Money that will be required to be raised, in the case of an
acquisition of assets) in order to comply with the requirements of any
Licences or Necessary Authorisations issued to such TCN Entities (or
comprising such assets) or such investment analysis (whichever is the
higher);
"MATERIAL FINANCIAL ADVERSE EFFECT" means a material adverse effect on
the ability of the TCN Entities (taken as a whole) to perform all or
any of their respective payment obligations under this Agreement or any
of the Security Documents;
"MONTH" means a period beginning in one calendar month and ending in
the next calendar month on the day numerically corresponding to the day
of the calendar month on which it started, provided that (i) if the
period started on the last Banking Day in a calendar month or if there
is no such numerically corresponding day, it shall end on the last
Banking Day in such next calendar month and (ii) if such numerically
corresponding day is not a Banking Day, the period shall end on the
next following Banking Day in the same calendar month but if there is
no such Banking Day it shall end on the preceding Banking Day and
"months" and "monthly" shall be construed accordingly;
"MONTHLY MANAGEMENT ACCOUNTS" means the monthly management accounts of
the TCN Group to be delivered (or which may be delivered) to the Agent
pursuant to clause 10.1(h) in the agreed form or containing information
of the same type as is required by such form;
"NATIONAL NETWORK" means the telecommunications systems, together with
all associated cables, hardware and software constructed or to be
constructed in accordance with or permitted under the National Network
Licence;
"NATIONAL NETWORK LICENCE" means the public telecommunications
operating licence granted by the Secretary of State for Trade and
Industry to Telewest under the Telecommunications Xxx 0000 on 14
January 1997 (details of which are set out in part H of schedule 9);
"NECESSARY AUTHORISATIONS" means all approvals, authorisations and
licences (other than the Licences) from, all rights granted by and all
filings, registrations and agreements with any person including,
without limitation, any government or other regulatory authority
necessary in order to enable each member of the TCN Group to construct,
maintain and operate the Cable Systems and to carry on such other
business as may be permitted by the terms of this Agreement and which
is carried on at the relevant time;
"NET INCOME" means, (i) in relation to the TCN Group for any period,
the net profit after Taxes of the TCN Group arising out of the use or
operation of the Cable Systems for such period (excluding, if included,
the net profit after Taxes of Cable Guide Limited), and (ii) in
relation to the Telewest Group for any period, the net profit after
Taxes of the Telewest Group for such period, in each case as determined
in accordance with GAAP used in the preparation of and as shown in the
financial statements, Monthly Management Accounts or Quarterly
Management Accounts in respect of such period prepared and delivered to
the Agent pursuant to clause 10.1(f), 10.1(g) or 10.1(h);
"NETWORK SERVICE CENTRE" means the arrangements effected pursuant to
the agreement dated 16 May 1994 and expressed to take effect from 1
January 1993 between, inter alia, Telewest Communications Group
Limited, United Artists Communications (North East) Partnership, United
Artists Communications (Cotswolds) Venture and United Artists
Communications (South East) Partnership together with any agreements to
similar effect entered into from time to time between, inter alia,
members of the TCN Group and others;
"NON-GUARANTEED COMPUTER LEASE" means any Finance Lease of computer
equipment in respect of which no guarantee has been issued pursuant to
this Agreement;
"NON-GUARANTEED LEASE" means any Finance Lease in respect of which no
guarantee has been issued pursuant to this Agreement;
"NON-GUARANTEED SWITCH LEASE" means any Finance Lease of switch
equipment and software in respect of which no guarantee has been issued
pursuant to this Agreement;
"NON-GUARANTEED VEHICLE LEASE" means any Finance Lease of vehicles in
respect of which no guarantee has been issued pursuant to this
Agreement;
"NORTH EAST LICENCES" means those licences of members of the TCN Group
details of which are set out in part D of schedule 9;
"ORIGINAL CHARGING PARTNERSHIPS" means those partnerships whose names
and principal places of business are set out in part B of schedule 1;
"ORIGINAL CHARGING SUBSIDIARIES" means those companies whose names and
registered numbers are set out in part A of schedule 1;
"ORIGINAL NON-CHARGING SUBSIDIARIES" means those companies whose names
and registered numbers are set out in part C of schedule 1;
"PERMITTED BORROWINGS" means:
(a) any Borrowed Money arising hereunder or under the Security
Documents;
(b) any Borrowed Money arising under or in respect of the Senior Loan
Agreement in a maximum principal amount of (pound)1,000,000,000;
(c) any Borrowed Money approved by the Agent (acting on the
instruction of the Majority Banks);
(d) any Borrowed Money included within Permitted Intra-TCN Group
Transactions or Permitted Guarantees;
(e) any Borrowed Money arising under the interest rate protection
arrangements referred to in clause 11.1(i);
(f) any Borrowed Money arising under:
(i) Non-Guaranteed Switch Leases in aggregate not exceeding
(pound)120,000,000;
(ii) Non-Guaranteed Vehicle Leases in aggregate not exceeding
(pound)50,000,000;
(iii) Non-Guaranteed Computer Leases in aggregate not exceeding
(pound)20,000,000;
(iv) any Borrowed Money arising under Non-Guaranteed Leases (not
falling within (a), (b) or (c) above) in aggregate not
exceeding (pound)20,000,000;
Provided that the aggregate of all Borrowed Money falling within this
paragraph (f) shall not at any time exceed (pound)140,000,000;
(g) Subordinated Debt which is the subject of a Deed of
Subordination;
(h) any Borrowed Money outstanding to any bank (which has a credit
rating from Standard & Poor's Corporation or Xxxxx'x Investors
Service Inc. of A (or its equivalent) or better) with whom
members of the TCN Group have a cash management arrangement in
place provided that (i) the aggregate net amounts of Borrowed
Money outstanding to all such banks (after taking account of
deposits made by members of the TCN Group with the relevant
banks) does not exceed(pound)5,000,000 or the excess
above(pound)5,000,000 would not otherwise be prohibited under
this Agreement, (ii) the net balance with each such bank is in
credit at least once in any 30 day period and (iii) the average
(over any 365 day period) of the aggregate of the net amount of
Borrowed Money outstanding to all such banks (after taking
account of deposits made by members of the TCN Group with the
relevant banks) does not exceed(pound)2,500,000;
(i) any Borrowed Money arising under Indemnities not exceeding
(pound)250,000 for each TCN Franchise;
(j) after the end of the Revolving Period, any Borrowed Money not
within paragraphs (a) to (i) above provided that:
(i) such Borrowed Money is incurred after the end of the
Revolving Period;
(ii) no Default has occurred and is continuing at the date of the
incurrence of such Borrowed Money; and
(iii) on the two Quarter Days immediately preceding the
incurrence of such Borrowed Money (as shown in the relevant
Compliance Certificates), immediately after the incurrence
of such Borrowed Money and at all times thereafter Total TCN
Group Debt is less than 3 times Consolidated Annualised TCN
Group Net Operating Cash Flow; and
(k) any Borrowed Money not within paragraphs (a) to (j) above and not
exceeding at any time in aggregate (pound)15,000,000;
"PERMITTED DISPOSALS" means:
(a) the application of cash in (i) the acquisition of assets or
services in the ordinary course of business, or the making of
loans in the ordinary course of business not, in any such case,
prohibited by the terms of this Agreement or any Security
Document, (ii) the repayment of Permitted Borrowings and the
servicing thereof provided that the same is not prohibited or
otherwise restricted by the terms of this Agreement or (iii) the
payment of moneys by the Borrower to Telewest to the extent
permitted by the terms of this Agreement;
(b) any disposals approved by the Agent (acting on the instructions
of the Majority Banks);
(c) the placing of deposits with banks (which have a credit rating
from Standard & Poor's Corporation or Xxxxx'x Investor Service
Inc. of A (or its equivalent) or better) not in contravention of
the terms of this Agreement or any Security Document;
(d) the sale of property or other assets (but excluding any ownership
interest in any of the TCN Entities) on bona fide arms length
commercial terms in the ordinary course of business to the extent
that the net proceeds of sale are applied forthwith after such
sale in the acquisition of assets of a similar nature and
approximately equal value to be used in the business of
constructing, installing or operating cable television and
telecommunications systems in the areas covered by the Licences
or any directly related business reasonably considered to be
financially beneficial to such business;
(e) the disposal of property or other assets (but excluding any
ownership interest in any of the TCN Entities) on bona fide arms
length commercial terms in the ordinary course of business in
consideration for the acquisition of assets of a similar nature
and approximately equal value to be used in the business of
constructing, installing or operating cable television and
telecommunications systems in the areas covered by the Licences
or any directly related business reasonably considered to be
financially beneficial to such business;
(f) the disposal, for full market value, of any interest rate or
currency swap or other hedging instrument no longer required for
the purpose for which it was originally entered into;
(g) disposals within Permitted Intra-TCN Group Transactions;
(h) the disposal of assets pursuant to any sale and leaseback
transactions which are permitted by and fall within paragraph (e)
of the definition of Permitted Borrowings or as is permitted by
the Banks pursuant to Clause 20.1;
(i) the disposal of any share (or other securities or any interest
therein) in (i) any Affiliate or (ii) Cable Guide Limited
(registered no: 2025654); and
(j) disposals of assets on bona fide arm's length commercial terms by
a member of the TCN Group (other than any disposals referred to
in paragraphs (a) to (i) (inclusive) above) where such assets are
obsolete or no longer required for the purposes of such member of
the TCN Group's business;
"PERMITTED ENCUMBRANCES" means:
(a) any Encumbrance arising hereunder or under any of the Security
Documents;
(b) any Encumbrance arising under any of the Senior Security
Documents (i) as at the date hereof, or (ii) arising at a later
date, if second ranking security over the property which is the
subject of the Encumbrance has been granted concurrently in
favour of the Security Trustee;
(c) any Encumbrance existing at the date hereof and set out in
Schedule 8;
(d) any Encumbrance which the Agent, acting on the instructions of
the Majority Banks, has at any time in writing agreed shall be a
Permitted Encumbrance;
(e) any Encumbrance arising in the ordinary course of business by
operation of law;
(f) any Encumbrance in favour of any bank incurred in relation to any
cash management or interest netting arrangements;
(g) rights of set-off arising in the normal course of business;
(h) any retention of title of goods supplied to any member of the TCN
Group where such retention is agreed in the ordinary course of
its trading activities and on customary terms provided that the
purchase price relating to such goods is required to be paid
within 120 days of the date on which the relevant goods are
supplied;
(i) (for the avoidance of doubt) any Encumbrance arising under
Finance Leases where the title to the relevant assets does not
vest in any member of the TCN Group to the extent amounts
outstanding under such Finance Leases fall under paragraph (f) of
the definition of Permitted Borrowings;
(j) any Encumbrance (a "NEW ENCUMBRANCE") created by any member of
the TCN Group in substitution for any Encumbrance referred to in
paragraph (ii) above (an "EXISTING ENCUMBRANCE") provided that
(i) such Existing Encumbrance is irrevocably and unconditionally
discharged no later than the time of creation of the New
Encumbrance, (ii) the New Encumbrance relates only to the same
assets as the Existing Encumbrance, (iii) the Indebtedness
secured by the New Encumbrance does not exceed the Indebtedness
secured by the Existing Encumbrance and (iv) if required by the
Agent, before such New Encumbrance is entered into, the
beneficiary thereof enters into a priorities arrangement with the
Agent and all of the Banks in form and substance satisfactory to
the Agent;
(k) any Encumbrance arising due to the provision of any services or
operations provided by any member of the TCN Group whereby a
member of the TCN Group agrees to hold assets and equipment on
trust for the benefit of the users thereof provided that (i) the
aggregate book value of the assets and equipment held in such an
arrangement does not at any time exceed (a) in the case of the
Network Service Centre,(pound)25,000,000, (b) in the case of
Cable Internet,(pound)15,000,000 and (c) in the case of any such
arrangement (including the Network Service Centre and/or Cable
Internet),(pound)10,000,000 and (ii) such users are persons
engaged in a similar business to that of the TCN Group; and
(l) any Encumbrance not within paragraphs (a) to (k) above and
securing Indebtedness in aggregate not exceeding
(pound)10,000,000 and where the assets the subject of such
Encumbrance have an aggregate book value not exceeding
(pound)15,000,000;
"PERMITTED GUARANTEES" means:
(a) any guarantees or indemnities arising hereunder or under the
Security Documents;
(b) any guarantees or indemnities arising under any of the Senior
Security Documents (i) as at the date hereof, or (ii) arising at
a later date, if similar guarantees or indemnities by the same
entities, as the case may be, are given concurrently in
connection herewith to the Security Trustee;
(c) any guarantees or indemnities approved by the Agent (acting on
the instructions of the Majority Banks);
(d) any guarantees or indemnities included within Permitted Intra-TCN
Group Transactions;
(e) any guarantees or indemnities included within Permitted
Borrowings; and
(f) any guarantees or indemnities not included in paragraphs (a) to
(e) (inclusive) above provided that the maximum liability
thereunder (actual or contingent) when aggregated with amounts
outstanding as Borrowed Money permitted by virtue of paragraph
(k) of the definition of Permitted Borrowings do not exceed in
aggregate (pound)15,000,000;
"PERMITTED INTRA-TCN GROUP TRANSACTIONS" means:
(a) loans made by a member of the TCN Group to a TCN Entity;
(b) any transaction approved as a Permitted Intra-TCN Group
Transaction by the Agent (acting on the instructions of the
Majority Banks);
(c) the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distributions by any
member of the TCN Group to a shareholder which is a TCN Entity;
(d) the purchase, acquisition, sale or disposal of assets or revenues
(including, without limitation, the acquisition of any business
or interest therein) by a TCN Entity from or, as the case may be,
to another TCN Entity provided such assets or revenues remain
charged to the Security Trustee pursuant to a Security Document;
(e) the purchase, subscription for, or other acquisition of any share
(or other securities or any interest therein) in any TCN Entity
by any other TCN Entity provided such shares are charged to the
Security Trustee pursuant to a Security Document;
(f) the subscription for shares in any company on its formation or
the purchase of shares in any company which has not at any time
carried on any business (other than that associated with its
formation or any necessary administrative activities) provided
that (i) such shares are charged to the Security Trustee pursuant
to a Security Document and (ii) promptly upon such subscription
or purchase being completed such company becomes a TCN Entity
pursuant to the provisions of this Agreement; and
(g) in relation to the ordinary course of trading, the giving by any
TCN Entity of any guarantee, bond or indemnity in respect of the
liabilities or obligations of any other TCN Entity;
"PERMITTED INVESTMENTS" means:
(a) any transaction included within Permitted Disposals;
(b) any transaction included within Permitted Intra-TCN Group
Transactions;
(c) any investments approved by the Agent (acting on the instructions
of the Majority Banks);
(d) on or after 1 January 1997, (i) any acquisition of the entire
ownership interest in, or (ii) any acquisition of assets falling
within paragraph (ii) of clause 11.1(g) of, any person which is
not a TCN Entity in each case by a TCN Entity provided that:
(aa) the consideration payable for such acquisition is satisfied
entirely by (A) the issue to the vendor of shares in
Telewest and/or (B) the payment of cash to the vendor
provided that, for the purposes of funding such payment,
Subordinated Debt which is the subject of a Deed of
Subordination has been lent to the relevant TCN Entity
and/or Telewest has subscribed in cash for equity share
capital in the Borrower (which share capital is charged to
the Security Trustee in accordance with clause 11.1(f)) in
an aggregate amount which is not less than the amount of
such consideration and is applied in satisfaction of such
consideration and provided further that any such
Subordinated Debt or cash subscription for equity is not
funded (directly or indirectly) by any proceeds from any
raising of equity finance or Borrowed Money by Telewest
after the date hereof;
(bb) in the case of sub-paragraph (i) above, such person becomes
a TCN Entity contemporaneously with the making of such
acquisition or investment or, in the case of sub-paragraph
(ii) above, such assets are charged (or become subject to a
charge) to the Security Trustee pursuant to a Security
Document contemporaneously with the acquisition thereof;
(cc) the Borrower has delivered to the Agent an investment
analysis prepared by the Borrower which shows that,
immediately after making such acquisition or investment:
(A) the Maximum Forecasted Debt Requirement arising as a
result of all such acquisitions or investments
(together with the aggregate consideration paid or
payable (other than by (I) the issue to the relevant
vendor of shares in Telewest or (II) the payment to the
relevant vendor of all or part of the proceeds of issue
of any shares in Telewest (and, in either case, the
consequential issue of shares and/or the creation of
Subordinated Debt by the Borrower to Telewest)) in
respect of all such acquisitions or investments) will
not exceed (pound)120,000,000; and
(B) the Maximum Forecasted Debt Requirement arising as a
result of all such acquisitions or investments will not
exceed (pound)40,000,000 in each of financial years
1997 and 1998 and (pound)80,000,000 in any subsequent
financial year of the Borrower; and
(dd) in the case of sub-paragraph (i) above such person is a
Local Delivery Operator or in the case of paragraph (ii)
above such assets consist of all or substantially all of the
assets of a Local Delivery Operator including all licences
issued to such Local Delivery Operator under the relevant
Telecommunications and Cable Laws;
(e) any loans to Telewest representing any amount realised under
paragraph (i)(i) of "Permitted Disposals" and any acquisition of
or investment in, or any acquisition of assets falling within
paragraph (ii) of clause 11.1(g) of any person which is not a TCN
Entity by a TCN Entity provided that (a) such person is engaged
in or such assets are required for the business of (or a similar
business to that of) the TCN Group, (b) at the relevant time, no
Default has occurred and is continuing or would result from the
making of any such loan, acquisition or investment and (c) the
amount of any such loans together with the aggregate
consideration paid for all investments or acquisitions falling
within this paragraph (e) does not exceed the aggregate net
consideration received in respect of disposals falling within
paragraph (i)(i) of the definition of Permitted Disposals;
(f) any transaction not within paragraphs (a) to (e) (inclusive)
above which would otherwise be prohibited under clause 11.1(g)
where the value of the aggregate net consideration (in cash or
otherwise) paid by members of the TCN Group in any financial year
of the Borrower does not exceed (pound)1,000,000 (provided that
if any such amount is not used in any financial year it may be
carried forward and used in subsequent financial years);
"PERMITTED PAYMENTS" means any payments or transfers of assets
(including Value Added Tax thereon, if applicable):
(a) to any Restricted Person in relation to transactions carried out
on bona fide arm's length commercial terms in the ordinary course
of business;
(b) by the Borrower to Telewest (whether by way of (1) (in the case
of (i) or (ii) or (iv) below) dividend, other distribution, loan
or interest payable on Subordinated Debt or (2) (in the case of
(iii) below) rental payments by the relevant TCN Entity to
Telewest in respect of a sub-Finance Lease entered into between
such parties in relation to the relevant Telewest Lease) where
such payment is to be used (and is so used within a reasonable
time) to fund:
(i) costs and expenses of Telewest incurred in relation to the
TCN Group of up to (pound)2,000,000 in respect of each
financial year;
(ii) the payment by Telewest of cash interest on the Senior
Securities then due or due within five Banking Days;
(iii) the payment of rental due on any Telewest Lease;
(iv) the repayment of any advances made by Telewest under the
1997 Telewest Facility Agreement (subject to no event or
circumstance having occurred which is continuing and which
constitutes a Default),
provided that (1) no Default has occurred and is continuing or would
result from the making of any payment under this paragraph (b) and (2)
in the case of any rental payment, Telewest directs that such payment
be made to (and such payment is made to) the lessor under the
corresponding Telewest Lease to be applied in or towards discharging
Telewest's rental obligations under such Telewest Lease, and
(c) consisting of dividends or other distributions or the payment of
interest on or the repayment of Subordinated Debt made to any
Restricted Person after the end of the Revolving Period provided
that:
(i) on the two Quarter Days immediately preceding the making of
any such payment (adjusted as if such payment had then been
made) and immediately after such payment the ratio of each
of (A) Total TCN Group Debt to Consolidated Annualised TCN
Group Net Operating Cash Flow and (B) Total Telewest Group
Debt to Consolidated Annualised Telewest Group Net Operating
Cash Flow in each case does not exceed 3.0 times; and
(ii) no Default has occurred and is continuing or would result
from the making of any payment under this paragraph (c);
"PLEDGE AND SECURITY AGREEMENTS" means each of the second ranking
pledge and security agreements to be entered into in favour of the
Security Trustee by each of the partners in each of the Charging
Partnerships formed in the State of Colorado in substantially the
agreed form;
"PRINCIPAL AGREEMENTS" means the Sky Standard Cable Operator Agreements
and the BT Inter-Connect Agreements together with any agreements
replacing any of the same;
"PRO-FORMA TOTAL TCN GROUP DEBT SERVICE" means the aggregate of (i) the
total forecast amount of interest (calculated by reference to the rate
of interest in effect in relation to the relevant Borrowed Money of the
TCN Group on the date on which the calculation falls to be made,
adjusted to take account of any interest rate hedging arrangements) and
any other charges (other than expenses and any one-off fees paid
otherwise than in lieu of interest or discount) payable in respect of
Borrowed Money of the TCN Group in respect of the twelve months
immediately following the date on which the relevant calculation under
this Agreement falls to be made and (ii) the principal amount of any
Borrowed Money of the TCN Group due to be repaid in accordance with the
terms of such Borrowed Money during such period;
"PRO-FORMA TOTAL TELEWEST GROUP DEBT SERVICE" means the aggregate of
(i) the total forecast amount of interest (calculated by reference to
the rate of interest in effect in relation to the relevant Borrowed
Money of the Telewest Group on the date on which the calculation falls
to be made, adjusted to take account of any interest rate hedging
arrangements) and any other charges (other than expenses and any
one-off fees paid otherwise than in lieu of interest or discount)
payable in respect of Borrowed Money of the Telewest Group in respect
of the twelve months immediately following the date on which the
relevant calculation under this Agreement falls to be made and (ii) the
principal amount of any Borrowed Money of the Telewest Group due to be
repaid in accordance with the terms of such Borrowed Money during such
period;
"QUALIFYING BANK" means:
(a) a person which falls within the definition of "bank" for the
purposes of section 840A of the Income and Corporation Taxes Xxx
0000, which is beneficially entitled to any interest payable to
it under this Agreement and any other Security Document to which
it is a party and which is within the charge to corporation tax
as respects such interest but so that if such Act is amended or
repealed, this definition shall be amended in such manner as the
Agent, after consultation with the Borrower, shall determine to
be necessary in order to define persons of the relevant
equivalent category to whom the Borrower may make payments
hereunder without any obligation to make deduction or withholding
thereof; or
(b) a person, being a bank or financial institution (whether
incorporated in the United Kingdom or elsewhere), which, by
virtue of the provisions of a double taxation agreement between
the United Kingdom and the country of residence of that person is
entitled to exemption from Taxes on interest and is, subject only
to a prior direction given to the Borrower by the United Kingdom
Inland Revenue pursuant to an application by that person without
the Borrower incurring any additional expense or suffering any
significant additional administrative burden, eligible to have
payments made to it by the Borrower under this Agreement without
any deduction or withholding in respect of Taxes, and for this
purpose "double taxation agreement" means any convention or
agreement between the government of the United Kingdom and any
other government for the avoidance of double taxation and the
prevention of fiscal evasion with respect to Taxes on income and
capital gains;
"QUARTER DAYS" means 31st March, 30th June, 30th September and 31st
December in any year;
"QUARTERLY MANAGEMENT ACCOUNTS" means the quarterly management accounts
of the Telewest Group or the TCN Group (as the case may be) to be
delivered to the Agent pursuant to clause 11.1(g) in the agreed form or
containing information of the same type as is required by such form;
"QUARTERLY PERIOD" means each period of approximately three months
commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
"REFERENCE BANKS" means the principal London offices of The Bank of New
York, Canadian Imperial Bank of Commerce, The Chase Manhattan Bank,
N.A., National Westminster Bank Plc and The Toronto-Dominion Bank
and/or any other Bank appointed as such pursuant to clause 18.12;
"REGION" means each of the geographical regions into which the business
of the TCN Group is divided at any relevant time for management
accounting purposes, being at the date of this Agreement, (i) London
and South East, (ii) Scotland and North East, (iii) Midlands and South
West and (iv) North West;
"REIMBURSEMENT AGREEMENT" means the agreement of such name to be
entered into between each of Original Charging Partnerships and the
Borrower in the agreed form;
"RELEVANT SUBSTANCE" means (i) any radioactive emissions, (ii)
electricity and any electrical or electromagnetic emissions and (iii)
any substance whatsoever (whether in a solid or liquid form or in the
form of a gas or vapour and whether alone or in combination with any
other substance) which is capable of causing harm to man or any other
living organism supported by the environment (both natural and built),
or damaging the environment (both natural and built) or public health
or welfare;
"REPAYMENT DATE" means, subject to clause 8.4, 30 June 2006;
"RESTRICTED PAYMENT" means (a) any direct or indirect distribution,
dividend, loan or other payment (whether in cash, property, securities
or otherwise) by any member of the TCN Group (including, without
limitation, any payment on account of the share capital of the Borrower
or capital stock or other securities of the Borrower) or any interest
thereon, (b) any transfer of any assets by any member of the TCN Group
and (c) any payment (whether in cash, property, securities or
otherwise) of principal of, or interest on, Subordinated Debt, in each
case to any Restricted Person;
"RESTRICTED PERSON" means any member of the Telewest Group other than
(i) the TCN Entities and (ii) Cable Guide Limited (registered no:
2025654);
"REVOLVING ADVANCE" means an Advance made during the Revolving Period;
"REVOLVING PERIOD" means the period from (and including) 1 July 1999 to
(and including) 30 June 2001;
"ROLLOVER NOTICE" means a notice substantially in the form of Schedule
2B;
"SBC" means SBC International Inc. of 0 Xxxx'x Xxx, Xxxxx 000,
Xxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, XXX;
"SBCC" means SBC CableComms (UK) Limited (No. 2795350);
"SBCC LICENCES" means those licences of members of the TCN Group
details of which are set out in part G of schedule 9;
"SCOTLAND LICENCES" means those licences of members of the TCN Group
details of which are set out in part E of schedule 9;
"SCOTTISH SECURITY DOCUMENTS" means the Bond and Floating Charges, the
Standard Securities, and the Share Pledges;
"SECURITY DOCUMENTS" means the Debenture, the Deed of Subordination,
the Pledge and Security Agreements, the Telewest Loan Assignment, the
Telewest National Network Licence Assignment, the Reimbursement
Agreement, the Scottish Security Documents, the Share Charge, the
Security Trust Deed, any Supplemental Deed and all other mortgages,
charges, guarantees, indemnities and other instruments from time to
time entered into in favour of the Agent, the Security Trustee and/or
the Banks by way of guarantee or other assurance of and/or security for
amounts owed to any of the Beneficiaries (as defined or to be defined
in the Debenture);
"SECURITY TRUST DEED" means the security trust deed to be entered into
between the Borrower, Telewest, the Original Charging Subsidiaries, the
Original Charging Partnerships, the Arrangers, the Banks, the Agent and
the Security Trustee;
"SECURITY TRUSTEE" means The Toronto-Dominion Bank, Triton Court, 00-00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX and/or such other person as may be
appointed as security trustee pursuant to any Security Document (as the
context requires);
"SENIOR AGENT" means the agent under the Senior Loan Agreement (being,
at the date of this Agreement, CIBC Wood Gundy plc of Xxxxxxx Xxxxxx,
Xxxxxxx Xxxx, Xxxxxx XX0 0XX);
"SENIOR BANKS" means the banks and financial institutions listed in
Part D of Schedule 1 of the Senior Loan Agreement and includes their
successors in title, assignees and substitutes;
"SENIOR FACILITY DEBT INTEREST CHARGES" means, in relation to any
period, the total amount of all interest, fees and commissions accruing
in respect of the facility granted pursuant to the Senior Loan
Agreement during such period;
"SENIOR LOAN" means the (pound)1.2 billion facility provided under the
Senior Loan Agreement which is to be reduced to (pound)1 billion at the
date hereof pursuant to the Senior Loan Amendment;
"SENIOR LOAN AGREEMENT" means the Loan Agreement dated 22nd May 1996
made between (1) Telewest Communications Networks Limited (2) the
Subsidiaries of Telewest Communications Networks Limited set out in
part A of Schedule 1 therein, (3) the Associated Partnerships of
Telewest Communications Network Limited set out in part B of schedule 1
therein, (4) The Bank of New York, CIBC Wood Gundy plc, Chase
Investment Bank Limited, Natwest Markets and The Toronto-Dominion Bank
as Arrangers (5) The Banks and financial institutions whose names and
addresses are set out in Part D of schedule 1 therein, (6) CIBC Wood
Gundy plc as agent; and (7) CIBC Wood Gundy plc as security trustee as
amended;
"SENIOR LOAN AMENDMENT AGREEMENT" means an amendment agreement relating
to the Senior Loan Agreement in the agreed form;
"SENIOR SECURITIES" means the $300,000,000 95/8% senior debentures due
2006 and $1,536,413,000 11% senior discount debentures due 2007 issued
by Telewest on 3 October 1995;
"SENIOR SECURITY DOCUMENTS" shall have the meaning ascribed to
"Security Documents" in the Senior Loan Agreement;
"SENIOR TRANCHE B LOAN" means the portion of the Senior Loan
categorised as Tranche B under the Senior Loan Agreement;
"SHARE CHARGE" means the second ranking share charge to be entered into
by Telewest over its shares in the Borrower in the agreed form;
"SHARE PLEDGES" means the second ranking share pledges to be entered
into by certain Original Charging Subsidiaries over the shares in those
members of the TCN Group incorporated in Scotland (other than those
which are Original Non-Charging Subsidiaries) in the agreed form;
"SIX MONTH PERIOD" means each period of six months ending on the last
day of a calendar month;
"SKY STANDARD CABLE OPERATOR AGREEMENTS" means the agreements referred
to in part B of Schedule 10;
"SOUTH EAST LICENCES" means those licences of members of the TCN Group
details of which are set out in part F of schedule 9;
"STANDARD SECURITY" means the second ranking standard security to be
entered into by Scotcable (Motherwell) Limited in relation to Xxxxx 0,
Xxxxxx Xxxx, Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx;
"STERLING" and "(pound)" mean the lawful currency for the time being of
the United Kingdom and in respect of all payments to be made under this
Agreement in Sterling means immediately available, freely transferable
cleared funds;
"SUBSCRIBER" means a person who has entered into an agreement (which
has not expired or been terminated) (a "SUBSCRIBER'S AGREEMENT") with a
TCN Entity to be provided with services by a TCN Entity through the
operation of the Cable Systems;
"SUBORDINATED DEBT" means, at any relevant time, all Indebtedness of
the TCN Entities owed to a Restricted Person;
"SUBSIDIARY" of a person means (a) any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
either ownership of more than 50 per cent. of the voting share capital
(or equivalent right of ownership) of such company or entity or power
to direct its policies and management whether by contract or otherwise
or the right to receive more than 50 per cent. of any distributions (of
whatever nature) made in respect of the share capital or other
ownership interests of such company or entity and (b) in the case of a
company incorporated in England and Wales or Scotland, a Subsidiary
Undertaking;
"SUBSIDIARY UNDERTAKING" has the meaning given to such term in section
258 Companies Xxx 0000;
"SUBSTITUTE" has the meaning ascribed thereto in clause 17.4;
"SUBSTITUTION CERTIFICATE" means a certificate substantially in the
form of schedule 5;
"SUPPLEMENTAL DEED" means a deed supplemental to this Agreement, the
Debenture and certain of the other Security Documents executed, inter
alios, by a Subsidiary or Associated Partnership of the Borrower in the
form of schedule 4 to the Debenture or in such other form as is agreed
between the Agent and the Borrower whereby such Subsidiary or
Associated Partnership becomes a party to this Agreement and any
relevant Security Document as a Charging Subsidiary or Charging
Partnership, as the case may be;
"SURPLUS CASH FLOW" means Excess Cash Flow less any amounts applied in
prepayment in accordance with clause 6.5(a) of the Senior Loan
Agreement;
"TAXES" includes all present and future taxes, levies, imposts, duties,
fees or charges of a similar nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"TCI" means Tele-Communications, Inc. whose principal place of business
is at Terrace Tower II, 0000, XXX Xxxxxxx Xxxxxxxxx, Xxxxxxxx, X.X.X.;
"TCN ENTITIES" means the Borrower, each Original Charging Subsidiary
and each Original Charging Partnership together with any company or
partnership which is or becomes a party to this Agreement and the
relevant Security Documents pursuant to clause 10.1(x);
"TCN FRANCHISES" means those areas in which the TCN Group is permitted
to operate cable television and cable telecommunications systems
pursuant to the Licences;
"TCN GROUP" means the Borrower, all its Subsidiaries and all its
Associated Partnerships from time to time;
"TELECOMMUNICATIONS AND CABLE LAWS" means the Telecommunications Xxx
0000, the Cable and Xxxxxxxxxxxx Xxx 0000, the Broadcasting Xxx 0000
and all other laws, statutes, regulations and judgements relating to
telecommunications or cable television applicable to any member of the
TCN Group, and/or the business carried on by, any member of the TCN
Group (for the avoidance of doubt, not including laws, statutes,
regulations or judgments relating solely to consumer credit, data
protection or intellectual property);
"TELEWEST" means Telewest Communications plc (No. 2983307);
"TELEWEST LOAN ASSIGNMENT" means the second ranking assignment by way
of security to be entered into by Telewest of Telewest's rights in and
to the Subordinated Debt in the agreed form;
"TELEWEST NATIONAL NETWORK LICENCE ASSIGNMENT" means the second ranking
assignment by way of security to be entered into by Telewest of
Telewest's rights in and to the National Network Licence in the agreed
form;
"TELEWEST COMMUNICATIONS" means Telewest Communications Cable Limited
(No. 2883742);
"TELEWEST GROUP" means Telewest, all its Subsidiaries and all its
Associated Partnerships;
"TELEWEST LEASE" means a Finance Lease of tangible and/or intangible
assets by Telewest where such assets are the subject of a sub-Finance
Lease between Telewest and a member of the TCN Group;
"TELEWEST/TCN LOAN AGREEMENT" means the loan agreement dated 21 May
1996 pursuant to which Telewest has made a loan to the Borrower in an
amount of (pound)399,739,534.58;
"TERM" means, in relation to a Revolving Advance, the period for which
such Revolving Advance is or is to be made, as specified in the
Drawdown Notice or Rollover Notice for such Revolving Advance, or as
otherwise determined in accordance with the provisions hereof;
"TERM ADVANCE" means, after the end of the Revolving Period, the
advance deemed to be made pursuant to clause 4.12 and any advance
resulting from the division and/or consolidation of any Term Advance in
accordance with clause 4.12;
"TERM DATE" means, in relation to a Revolving Advance, the last day of
the Term of such Revolving Advance;
"TERM PERIOD" means the period from (and including) 1 July, 2001 to
(and including) 30 June 2006;
"TERM REPAYMENT DATE" means each of the dates referred to in clause
6.2;
"TOTAL COMMITMENTS" means at any relevant time the total of the
Commitments of all the Banks at such time;
"TOTAL TCN GROUP CASH PAYING DEBT" means that part of Total TCN Group
Debt in respect of which interest and any other charges (except
expenses and any one-off fees paid otherwise than in lieu of interest
or discount) is currently paid or payable;
"TOTAL TCN GROUP CASH PAYING DEBT INTEREST CHARGES" means, in relation
to any period, the total amount of all interest, fees and commissions
accruing in respect of Total TCN Group Cash Paying Debt during such
period;
"TOTAL TCN GROUP DEBT" means the aggregate consolidated amount of all
Borrowed Money of the TCN Group less the amount of the loan made by
Telewest to the Borrower dated 21 May 1996 pursuant to the Telewest/TCN
Loan Agreement;
"TOTAL TCN SECURED DEBT" means the aggregate consolidated amount of all
Borrowed Money of the TCN Group under the Senior Loan Agreement and
this Agreement;
"TOTAL TELEWEST GROUP CASH PAYING DEBT" means that part of Telewest
Group Debt in respect of which interest and any other charges (except
expenses and any one-off fees paid otherwise than in lieu of interest
or discount) is currently paid or payable;
"TOTAL TELEWEST GROUP CASH PAYING DEBT INTEREST CHARGES" means, in
relation to any period, the total amount of all interest, fees and
commissions accruing in respect of Total Telewest Group Cash Paying
Debt during such period;
"TOTAL TELEWEST GROUP DEBT" means the aggregate consolidated amount of
all Borrowed Money of the Telewest Group;
"ULTIMATE SHAREHOLDERS" means US WEST, TCI, Cox and SBC and "Ultimate
Shareholder" means any one of them; and
"US WEST" means US WEST, Inc. whose principal place of business is at
0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, X.X.X.
1.3 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
In this Agreement, unless the context otherwise requires:
(a) reference to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
(b) reference to (or to any specified provision of) this Agreement
or any other document shall be construed as references to this
Agreement, that provision or that document as in force for the
time being and as from time to time amended in accordance with
the terms thereof, or, as the case may be, with the agreement of
the relevant parties and (where such consent is, by the terms of
this Agreement or the relevant document required to be obtained
as a condition to such amendment being permitted) the prior
written consent of the Agent, all of the Banks or the Majority
Banks (as the case may be);
(c) reference to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency,
authority, central bank or government department or any
self-regulatory or other national or supra-national authority;
(d) words importing the plural shall include the singular and vice
versa;
(e) reference to a time of day are to London time;
(f) references to a person shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any agency
thereof and that person's successors in title;
(g) reference to a document "in the agreed form" means in the form
of a draft of such document initialled by way of identification
by the Agent and the Borrower or, where no such draft is so
initialled, in the form to be agreed between the Borrower and
the Agent and both such parties hereby agree to negotiate in
good faith to agree such form;
(h) references to a "guarantee" include references to an indemnity
or other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "guaranteed" shall be construed accordingly;
(i) reference to "set-off" includes retention, compensation and the
balancing of accounts under Scots law;
(j) references to any enactment shall be deemed to include reference
to such enactment as re-enacted, amended or extended; and
(k) references to "business" in relation to any member of the TCN
Group mean the construction, installation, operation and
utilisation of cable television and/or telecommunications
systems in the TCN Franchises and/or any business directly
related thereto and reasonably considered to be financially
beneficial to such business, and references to "ordinary course
of business" in relation to any member of the TCN Group shall be
similarly construed.
1.5 Majority Banks
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all of
the Banks shall have received appropriate prior notice of the matter on
which such opinion, consent, request or instructions are required to be
obtained and the relevant majority of Banks shall have given or issued
such opinion, consent, request or instructions but the Borrower and
each other TCN Entity shall be entitled (and bound) to assume that such
notice shall have been duly received by each Bank and that the relevant
majority shall have been obtained to constitute Majority Banks whether
or not this is in fact the case.
1.6 Agent's Opinion
Where this Agreement provides for the Agent's opinion to determine
whether any matter would or is reasonably likely to have a Material
Financial Adverse Effect, a Material Adverse Effect and/or a material
adverse effect, as the case may be, the Agent shall act in accordance
with the instructions of the Majority Banks (acting reasonably) in
making such determination.
1.7 Bank Commitments
For the purpose of the definition of "Majority Banks" in clause 1.2 and
of clause 18.10 references to the Commitment of a Bank shall, if the
Total Commitments have, at any relevant time, been reduced to zero, be
deemed to be a reference to the Commitment of that Bank immediately
prior to such reduction to zero.
2 THE FACILITY
2.1 Amount
The Banks, relying upon each of the representations and warranties in
clause 9 and in the Security Documents, agree to lend to the Borrower
by way of Advances upon and subject to the terms of this Agreement the
principal sum of up to (pound)100,000,000. The obligation of each Bank
under this Agreement shall be to contribute that proportion of each
Advance which, as at the Drawdown Date of such Advance, its Commitment
bears to the Total Commitments.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
other Bank, the Arrangers, the Agent, the Security Trustee or any TCN
Entity of any of their respective obligations or liabilities under this
Agreement nor shall the Agent, the Arrangers or the Security Trustee be
responsible for the obligations of any Bank (except for its own
obligations, if any, as a Bank) nor shall any Bank be responsible for
the obligations of any other Bank under this Agreement.
2.3 Interests several
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Majority Banks) the interests of the Agent, the Arrangers, the
Security Trustee and the Banks are several and the amount due to the
Agent (for its own account), to each Arranger, to the Security Trustee
and to each Bank is a separate and independent debt. The Agent, each
Arranger, the Security Trustee and each Bank shall have the right to
protect and enforce its rights arising out of this Agreement and it
shall not be necessary for the Agent, any Arranger, the Security
Trustee or any Bank (as the case may be) to be joined as an additional
party in any proceedings for this purpose.
3 CONDITIONS
3.1 Documents and evidence
The obligations of each Bank to make its Commitment available shall be
subject to the conditions that the Agent, or its duly authorised
representative, shall have received the documents and evidence
specified in schedule 3 in form and substance satisfactory to all of
the Banks not later than three Banking Days before the day on which the
Drawdown Notice in respect of the first Advance is given. The Agent
shall notify the Banks of receipt of such Drawdown Notice and whether
or not the form and substance of such documents are satisfactory to the
Agent.
3.2 General conditions precedent
The obligation of each Bank to contribute to any Advance is subject to
the further conditions that at the time of the giving of a Drawdown
Notice for, and at the time of the making of, such Advance:
(a) the representations and warranties referred to in clause 9.3,
including those deemed to be made by the Borrower pursuant to
such clause, being (subject as provided in clause 9.3) true and
correct as of each such time as if each was made with respect to
the facts and circumstances existing at such time; and
(b) no Default shall have occurred and be continuing which has not
been remedied or expressly waived or would result from the
making of such Advance.
3.3 Waiver of conditions precedent
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of all of the Banks in respect of the first Advance and on
the instructions of the Majority Banks in respect of subsequent
Advances without prejudicing the right of the Agent acting on such
instructions to require fulfilment of such conditions in whole or in
part in respect of any other Advance.
4 REVOLVING ADVANCES
4.1 Senior Loan Agreement
Subject to the terms and conditions of this Agreement, Revolving
Advances may only be drawn during the Revolving Period and only if the
Senior Loan has been drawn to the fullest extent possible at the
relevant time.
4.2 Maximum Outstandings
The aggregate principal amount of Revolving Advances outstanding on any
day falling within the period set out in column (1) below shall be such
that the amount calculated by dividing Total TCN Secured Debt
(including the proposed Advance) by Consolidated Annualised TCN Group
Net Operating Cash Flow (determined by reference to the most recently
delivered Monthly Management Accounts) does not exceed the number set
out against such period in column (2) below and no Revolving Advances
shall be made if, following the making of such Revolving Advance, such
limit would be exceeded:
(1) (2)
PERIOD MAXIMUM TOTAL TCN SECURED DEBT DIVIDED BY
CONSOLIDATED ANNUALISED TCN GROUP NET
OPERATING CASH FLOW
from 1 July 1999 to (and including) 31 6.0
December 1999
from (but excluding) 31 December 1999 to 5.0
(and including) 31 December 2000
from (but excluding) 31 December 2000 to 4.5
(and including) 30 June 2001
4.3 Maximum aggregate outstanding Advances
The aggregate principal amount of the Loan shall not at any time exceed
(pound)100,000,000 and no Revolving Advance shall be made under this
Agreement if, following the making of such Revolving Advance, such
limit would be exceeded.
4.4 Drawdown
Subject to the terms and conditions of this Agreement a Revolving
Advance will be made to the Borrower following receipt by the Agent
from the Borrower of a Drawdown Notice signed by an Authorised Officer
not later than 10 a.m. on the second Banking Day before the proposed
Drawdown Date. A Drawdown Notice shall be effective on actual receipt
by the Agent and, once given, shall, subject as provided in clause
5.8(a), be irrevocable. No Drawdown Notice may be given in respect of
an amount which is the subject of a notice received by the Agent under
clause 6.7.
4.5 Rollover
Subject to the terms and conditions of this Agreement, if the Borrower
wishes to draw a Revolving Advance on any day (the "RELEVANT DAY") of
an amount of not more than the amount of a Revolving Advance which is
due to be repaid on the Relevant Day in accordance with clause 4.10,
the Borrower shall not be obliged to serve a Drawdown Notice in
relation to such new Revolving Advance but may serve a Rollover Notice
signed by an Authorised Officer specifying the amount of the new
Revolving Advance and the Term thereof and whether such new Revolving
Advance is to be made. A Rollover Notice shall be effective on actual
receipt by the Agent (which must be no later than 10 a.m. on the second
Banking Day before the Relevant Day) and, once given, shall, subject as
provided in clause 5.8(a), be irrevocable. No Rollover Notice may be
given in respect of an amount which is the subject of a notice received
by the Agent under clause 6.7.
4.6 No Rollover Notice
If the Agent does not receive a Rollover Notice from the Borrower in
accordance with clause 4.5 in respect of a new Revolving Advance to be
made on the Term Date of a Revolving Advance outstanding to the
Borrower then, subject to the terms and conditions of this Agreement
(including without limitation clauses 4.2 and 4.3), a Revolving Advance
of an amount equal to the amount of the Revolving Advance due to be
repaid shall be made to the Borrower if the Revolving Advance due to be
repaid was outstanding on such Term Date, for a Term of one month or
such other period as shall comply with clause 4.7 unless the amount of
such Revolving Advance is the subject of a notice received by the Agent
under clause 6.7.
4.7 Term and Amount of Revolving Advances
(a) Revolving Advances may be made only on Banking Days falling
within, in the case of Revolving Advances the Revolving Period,
and may be borrowed only for a Term of one month or two, three
or six months or (with the prior agreement of all of the Banks)
any other period in any such case ending not later than the last
day of the Revolving Period Provided that any Revolving Advances
made less than one month prior to the last day of the Revolving
Period may only be borrowed for the period up to and ending on
such date;
(b) each Revolving Advance shall be of (pound)10,000,000 or any
larger sum which is an integral multiple of (pound)2,000,000;
and
(c) no Revolving Advance may be drawn down if, as a result, there
would be more than four Revolving Advances then outstanding.
4.8 Notification to Banks
On the date of receipt of a Drawdown Notice or a Rollover Notice
complying with the terms of this Agreement or if a Revolving Advance is
otherwise to be made in accordance with clause 4.6 the Agent shall
notify each Bank thereof, of the date on which such Revolving Advance
is to be made and the Term thereof. Subject to the provisions of
clauses 3 and 4.10, on the date for the making of the relevant
Revolving Advance each of the Banks shall make available to the Agent
its portion of such Revolving Advance in accordance with clause 8.2.
4.9 Termination of Commitments
Any part of the Commitments undrawn and uncancelled at the end of the
Revolving Period, shall thereupon be automatically reduced to zero.
4.10 Repayment of Revolving Advances
The Borrower agrees to repay each Revolving Advance in respect of which
the Term Date is before the last day of the Revolving Period on such
Term Date. If a Revolving Advance (the "NEW REVOLVING ADVANCE") is to
be made to the Borrower on a day on which another Revolving Advance
made to the Borrower (the "MATURING REVOLVING ADVANCE") is due to be
repaid then, subject to the terms of this Agreement and so long as the
conditions referred to in clause 3.2 shall have been satisfied in
relation to the new Revolving Advance, (i) the maturing Revolving
Advance shall be deemed to have been repaid on its Term Date either in
whole (if the new Revolving Advance is equal to or greater than the
maturing Revolving Advance) or in part (if the new Revolving Advance is
less than the maturing Revolving Advance) and the Borrower shall only
be obliged to repay the principal amount by which the maturing
Revolving Advance exceeds the new Revolving Advance and (ii) to the
extent that the maturing Revolving Advance is so deemed to have been
repaid, the principal amount of the new Revolving Advance to be made on
such date shall be deemed to have been credited to the account of the
Borrower by the Agent on behalf of the Banks in accordance with the
terms of this Agreement and the Banks shall only be obliged to make
available to the Borrower pursuant to clause 4.8 a principal amount (if
any) equal to the amount by which the new Revolving Advance exceeds the
maturing Revolving Advance.
4.11 Conversion to a Term Loan
On the last day of the Revolving Period the revolving credit facility
shall convert to a term loan and all outstanding Revolving Advances the
Term Date of which is the last day of the Revolving Period shall be
consolidated with any other such Revolving Advances into the Loan and
be repaid in accordance with clause 6.
4.12 Term Advances
Following the consolidation referred to in clause 4.11, all Revolving
Advances shall be deemed to have been repaid and the Loan shall be
deemed to be a Term Advance for the purposes of this Agreement. The
Borrower may by notice received by the Agent not later than 10 a.m. on
the second Banking Day before the beginning of each Interest Period in
respect of a Term Advance specify that such Term Advance shall be
divided into more than one Term Advance, or consolidated with any other
Term Advance outstanding in respect of the Loan in respect of which the
then current Interest Period ends on the same day as the current
Interest Period in respect of such Term Advance. No more than four Term
Advances may be outstanding under this Agreement at any time. If more
than one Term Advance is outstanding in respect of the Loan each such
Term Advance shall be either (pound)10,000,000 or any larger sum which
is an integral multiple of (pound)2,000,000 or the balance of the Loan.
5 INTEREST AND INTEREST PERIODS; ALTERNATIVE INTEREST RATES
5.1 Normal interest rates
The Borrower agrees to pay interest on each Advance in respect of each
Interest Period relating thereto on each Interest Payment Date at the
rate per annum determined by the Agent to be the aggregate of (a) the
applicable Margin, (b) the Additional Cost and (c) LIBOR.
5.2 Calculation of Margin
The Margin for an Advance drawn within a period set out in column (1)
below shall be the rate set out in the corresponding part of column (2)
below:
(1) (2)
PERIOD RATE (PER CENT. PER ANNUM)
from 1 July 1999 to (and including) 31 3.5
December 1999
from (but excluding) 31 December 1999 to (and 4.5
including) 30 June 2000
from (but excluding) 30 June 2000 to (and 5.5
including) 30 June 2006
5.3 Interest Periods
The Interest Period in relation to each Revolving Advance shall be of a
duration equal to the Term of such Revolving Advance. Interest Periods
in respect of Term Advances shall be of a duration determined in
accordance with clauses 5.4 and 5.5.
5.4 Selection of Interest Periods for Term Advances
The Borrower may by notice received by the Agent not later than 11 a.m.
on the second Banking Day before the beginning of each Interest Period
in respect of a Term Advance specify whether such Interest Period shall
have a duration of one month or two, three or six months or (with the
prior agreement of all of the Banks) any other period.
5.5 Determination of Interest Periods for Term Advances
Every Interest Period in respect of a Term Advance shall be of the
duration specified by the Borrower pursuant to clause 5.4 but so that:
(a) the initial Interest Period in respect of each Term Advance will
commence on the last day of the Revolving Period and each
subsequent Interest Period in respect of such Term Advance will
commence forthwith upon the expiry of the previous Interest
Period in respect of such Term Advance;
(b) Interest Periods in respect of Term Advances of an aggregate
amount at least equal to the amount of the Loan to be repaid on
any Term Repayment Date shall end on such date; and
(c) if the Borrower fails to specify the duration of an Interest
Period in accordance with the provisions of clause 5.4 and this
clause 5.5 such Interest Period shall, subject to this clause
5.5, have a duration of one month.
5.6 Default interest
If the Borrower fails to pay any sum (including, without limitation,
any sum payable pursuant to this clause 5.6) on its due date for
payment under this Agreement the Borrower agrees to pay interest on
such sum from the due date up to the date of actual payment (as well
after as before judgment) at a rate determined by the Agent pursuant to
this clause 5.6. The period beginning on such due date and ending on
such date of payment shall be divided into successive periods of not
more than three months as selected by the Agent (after consultation
with the Banks) each of which (other than the first, which shall
commence on such due date) shall commence on the last day of the
preceding such period. The rate of interest applicable to each such
period shall be the aggregate (as determined by the Agent) of (a) one
per cent. per annum, (b) the Margin, (c) the Additional Cost and (d)
LIBOR, provided that if such unpaid sum is all or part of an Advance
which shall have become due and payable prior to the last day of the
then current Interest Period relating thereto, the first such period
selected by the Agent shall end on the last day of such Interest Period
and interest shall be payable on such unpaid sum during such period at
a rate one per cent. above the rate applicable thereto immediately
before it became due. Default interest under this clause 5.6 shall be
due and payable on the last day of each period determined by the Agent
pursuant to this clause 5.6 or, if earlier, on the date on which the
sum in respect of which such default interest is accruing shall
actually be paid. If, for the reasons specified in clause 5.8(a)(i) or
(ii), the Agent is unable to determine a rate in accordance with the
foregoing provisions of this clause 5.6 each Bank shall promptly notify
the Agent of the cost of funds to such Bank and interest on any sum not
paid on its due date for payment shall be calculated for each Bank at a
rate determined by the Agent to be one per cent. per annum above the
aggregate of the Margin and the cost of funds (including Additional
Cost ) to such Bank.
5.7 Notification of Interest Periods and interest rate
The Agent shall notify the Borrower and the Banks promptly of the
amount of each Term Advance, the duration of each Interest Period or
other period for the calculation of interest (or, as the case may be,
default interest) and of each rate of interest determined by it under
this clause 5.
5.8 Market disruption; non-availability
(a) If and whenever, at any time prior to the commencement of any
Interest Period:
(i) the Agent shall have determined (which determination
shall, in the absence of manifest error, be conclusive),
that adequate and fair means do not exist for
ascertaining LIBOR during such Interest Period; or
(ii) none or only one of the Reference Banks supplies the
Agent with a quotation for calculating LIBOR; or
(iii) the Agent shall have received notification from Banks
with Contributions aggregating not less than one-third
of the Loan that deposits in Sterling are not available
to such Banks in the London Interbank Market in the
ordinary course of business in sufficient amounts to
fund their contributions to the relevant Advance for
such Interest Period or that LIBOR does not accurately
reflect the cost to such Banks of obtaining such
deposits;
the Agent shall forthwith give notice (a "DETERMINATION
NOTICE") thereof to the Borrower and to each of the Banks. A
Determination Notice shall contain particulars of the relevant
circumstances giving rise to its issue. After the giving of
any Determination Notice the undrawn amount of the Commitments
of all of the Banks shall not be borrowed until notice to the
contrary is given to the Borrower by the Agent.
(b) During the period of 10 days after any Determination Notice has
been given by the Agent under clause 5.8(a), (i) if the Borrower
so requires, the Borrower and the Agent and each affected Bank
shall enter into negotiations with a view to agreeing a
substitute basis for determining the rates of interest from time
to time applicable to the Advances thereafter and any such
substitute basis that is agreed shall take effect in accordance
with its terms; and (ii) if no substitute basis has been agreed
between the Borrower, the Agent and each affected Bank pursuant
to paragraph (i) above, each affected Bank shall certify a
substitute basis for funding its contribution to the relevant
Advance. Such substitute basis may (without limitation) include
alternative interest periods, alternative currencies or
alternative rates of interest but shall include a margin above
the cost of funds including Additional Cost, if any, to such
Bank equivalent to the Margin for the relevant Interest Period
determined in accordance with clause 5.2.
Each substitute basis so agreed in accordance with (i) or,
failing such agreement, certified in accordance with (ii)
shall be binding upon the Borrower, the Agent and (in the case
of (i)) each Bank and (in the case of (ii)) each affected Bank
and shall take effect in accordance with its terms from the
date specified in the Determination Notice.
5.9 Reference Bank quotations
If any Reference Bank is unable or otherwise fails to furnish a
quotation for the purpose of calculating LIBOR the interest rate shall
be determined, subject to clause 5.8, on the basis of the quotations
furnished by the remaining Reference Banks.
6 REPAYMENT, PREPAYMENT AND CANCELLATION
6.1 Repayment of Advances
The Borrower agrees to repay the outstanding amount of the Loan in one
instalment on or before the Repayment Date.
6.2 Voluntary prepayment
The Borrower may prepay any Advance in whole or in part (being
(pound)5,000,000 or any larger sum which is an integral multiple of
(pound)5,000,000) at any time.
6.3 Additional voluntary prepayment
The Borrower may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under
clauses 5.8, 8.7 and 15.2:
(a) the Contribution of any Bank to which the Borrower shall have
become obliged to pay additional amounts under clause 8.7;
(b) any Bank's Contribution to which a substitute basis applies by
virtue of clause 5.8(b); or
(c) the Contribution of any Bank if it is or becomes contrary to any
law or regulation for that Bank to contribute to Advances or to
maintain its Commitment or fund or maintain its Contribution.
Upon any notice of such prepayment being given, the Commitment of the
relevant Bank shall be reduced to zero.
6.4 Mandatory Prepayment
(a) The Borrower shall apply, or procure the application of, 100 per
cent. of Surplus Cash Flow (if any) in respect of each of the
Six Month Periods of the Borrower ending on 30 June and 31
December in each year (commencing with the Six Month Period
ending 30 June 2001) in mandatory prepayment of the Loan
provided that the first (pound)10,000,000 which the Borrower
would, but for this proviso, have been obliged so to apply or
procure the application of may be retained by the Borrower (but
without prejudice to the operation of this clause 6.4(a) in
respect of all other relevant amounts).
(b) The Borrower shall apply, or procure the application of the net
cash proceeds after expenses of issue from any raising of equity
finance or Borrowed Money (the "PREPAYMENT PROCEEDS") by
Telewest made after the date hereof in prepayment of the Loan
(save for (i) any such proceeds raised for the purpose of
purchasing the shares held by Comcast UK Cable Partners Limited
in Birmingham Cable Corporation Limited and/or Cable London plc
and provided that such proceeds are so applied within 90 days of
receipt and (ii) any such proceeds from any raising of equity
finance pursuant to a rights issue specifically to finance or
part finance an acquisition of General Cable plc by Telewest and
provided that the shares in relation to the equity financing are
issued no later 31 December 1998). During the Revolving Period
the Commitments shall automatically be cancelled by the amount
of such prepayment and the Commitment of each Bank shall be
reduced proportionately.
(c) Each prepayment to be made under paragraph (a) above shall:
(i) be made on Interest Payment Dates falling after the date
upon which the Quarterly Management Accounts in respect
of the Quarterly Period ending on the last day of the
relevant Six Month Period are delivered to the Agent
pursuant to clause 10.1(g), beginning with the first
such date and continuing until the prepayment obligation
under paragraph (a) above in respect of such Six Month
Period has been satisfied; and
(ii) if on any Interest Payment Date upon which an amount of
Excess Cash Flow is to be applied in prepayment of the
Loan:
(1) such amount is less than the amount of the
Advances whose Interest Period ends on such
date, the Borrower may select against which
Advance or Advances the prepayment is to be made
and the proportion of the relevant amount to be
prepaid on each Advance but shall ensure that
the full amount of such Excess Cash Flow
required to be applied is so applied in
prepayment;
(2) such amount is equal to or greater than the
amount of the Advances whose Interest Period
ends on such date, the Borrower shall prepay
each such Advance on such date.
(d) Each prepayment to be made under paragraph (b) above shall:
(i) be made on Interest Payment Dates falling after the date
upon which the Prepayment Proceeds are received by
Telewest Communications plc beginning with the first
such date and continuing until the prepayment obligation
under paragraph (b) above has been satisfied; and
(ii) if on any Interest Payment Date upon which Prepayment
Proceeds are to be applied in prepayment of the Loan:
(1) such amount is less than the amount of the
Advances whose Interest Period ends on such
date, the Borrower may select against which
Advance or Advances the prepayment is to be made
and the proportion of the relevant amount to be
prepaid on each Advance but shall ensure that
the full amount of such Prepayment Proceeds
required to be applied are so applied in
prepayment;
(2) such amount is equal to or greater than the
amount of the Advances whose Interest Period
ends on such date, the Borrower shall prepay
each such Advance on such date.
(e) The Borrower's obligations under paragraph (a) above shall cease
in respect of the relevant Six Month Period and all future Six
Month Periods if, in respect of each of two consecutive Six
Month Periods, Total TCN Group Debt on the last day of the
relevant Six Month Period is less than 3.5 times Consolidated
Annualised TCN Group Net Operating Cashflow calculated by
reference to such Six Month Period, each as demonstrated in the
Compliance Certificate for the Quarterly Period ending on the
last day of the relevant Six Month Period.
(f) If the Compliance Certificate for one Quarterly Period
demonstrates that Total TCN Group Debt on the relevant Quarter
Day is less than 3.5 times Consolidated Annualised TCN Group Net
Operating Cashflow calculated by reference to the Six Month
Period ending on such Quarter Day, then the Borrower's
obligations under paragraph (a) above shall be suspended until
the delivery of the Quarterly Management Accounts for the
subsequent Quarterly Period (the "SUBSEQUENT ACCOUNTS") are
delivered. If the Compliance Certificate in respect of that
subsequent Quarterly Period also demonstrates that Total TCN
Group Debt on the relevant Quarter Day is less than 3.5 times
Consolidated Annualised TCN Group Net Operating Cashflow
calculated by reference to the Six Month Period ending on such
subsequent Quarter Day then such suspended obligations shall be
extinguished; if not, then such suspended obligations shall take
effect as of the date of delivery of the Subsequent Accounts but
otherwise in accordance with paragraph (a) above.
6.5 Amounts payable on prepayment
Any prepayment under this Agreement shall be made together with: (a)
accrued interest to the date of prepayment (calculated, in the case of
any prepayment of a Bank's Contribution pursuant to clause 6.4(b), and
in respect of the period during which the relevant substitute basis has
applied by virtue of clause 5.8(b), at a rate per annum equal to the
rate certified by such Bank in accordance with clause 5.8(b)); (b) any
additional amount payable under clause 8.7 or 15.2; and (c) all other
sums payable by the Borrower to the relevant Bank or the Banks (as the
case may be) under this Agreement including, without limitation, any
accrued commitment commission payable under clause 7.1(c) and any
amounts payable under clause 14.
6.6 Notice of prepayment
No prepayment may be effected unless the Borrower shall have given the
Agent at least two Banking Days' notice of its intention to make such
prepayment. Every notice of prepayment shall be effective only on
actual receipt by the Agent, shall be irrevocable and shall oblige the
Borrower to make such prepayment on the date specified. No amount
prepaid after the end of the Revolving Period may be reborrowed. The
Borrower may not prepay the Loan or any part thereof save as expressly
provided in this Agreement.
6.7 Cancellation of Commitments
The Borrower may at any time by notice to the Agent (effective only on
actual receipt) cancel with effect from a date not less than two
Banking Days after the receipt by the Agent of such notice the whole or
any part (being (pound)10,000,000 or any larger sum which is an
integral multiple of (pound)2,000,000) of the total of the Commitments
of all of the Banks which is not then outstanding or requested in a
Drawdown Notice in respect of which an Advance has not then been made.
Any such notice of cancellation, once given, shall be irrevocable and
upon such cancellation taking effect the Commitment of each of the
Banks shall be reduced proportionately.
7 FEES AND EXPENSES
7.1 Fees
The Borrower agrees to pay to the Agent whether or not any part of the
Commitments is ever advanced:
(a) Front end fee
on the date of this Agreement, for the account of the Arrangers,
an up-front fee of an amount agreed between the Borrower and the
Arrangers and set out in a letter of even date herewith;
(b) Agency fee
an agency fee of an amount agreed between the Borrower and the
Agent and set out in a letter of even date herewith; and
(c) Commitment commission
in arrears on each Quarter Day after the date of this Agreement and
on the last day of the Revolving Period, for the account of each
Bank, commitment commission computed from the date of this
Agreement as set out below on the daily undrawn and uncancelled
amount of such Bank's Commitment provided that commitment
commission shall cease to be payable to any Bank which shall be
in breach of its obligation to make Revolving Advances under
this Agreement with effect from the date of such breach and for
so long as such breach is continuing.
(1) (2)
PERIOD COMMITMENT COMMISSION
date of this Agreement to (and including) 0.75 per cent.
30 September 1998 per annum
from (and including) 1 October 1998 to (and 1 per cent.
including) 31 March 1999 per annum
from (and including) 1 April 1999 to (and 1.5 per cent.
including) 30 June 1999 per annum
from (and including) 1 July 1999 50% of the applicable Margin
7.2 Expenses
The Borrower agrees to pay to the Agent within 30 days from the date on
which the Agent makes demand on the Borrower for payment of the same:
(a) all reasonable out-of-pocket expenses (including legal, other
professional, printing and out-of-pocket expenses) incurred by
the Agent, the Arrangers and the Security Trustee in connection
with the negotiation, preparation (including reasonable due
diligence), syndication and execution of this Agreement and the
Security Documents and of any amendment or extension of or the
granting of any waiver or consent under this Agreement or any
Security Document together with interest at the rate referred to
in clause 5.6 from the date falling 30 days after the date of
demand for payment of such expenses to the date of payment (as
well after as before judgment); and
(b) all expenses (including legal and out-of-pocket expenses)
incurred by the Agent, the Arrangers, the Security Trustee and
the Banks or any of them in contemplation of, or otherwise in
connection with, the enforcement of, or preservation of any
rights under, this Agreement or any Security Document, or
otherwise in respect of the moneys owing under this Agreement,
together with interest at the rate referred to in clause 5.6
from the date falling 30 days after the date of demand for
payment of such expenses to the date of payment (as well after
as before judgment).
7.3 Value Added Tax
All fees and expenses payable pursuant to this clause 7 shall be paid
together with Value Added Tax (if any) properly chargeable thereon.
7.4 Stamp and other duties
The Borrower agrees (i) to pay all stamp, documentary, registration or
other like duties or taxes (including any duties or taxes payable by
the Agent, the Arrangers, the Security Trustee and the Banks) imposed
on or in connection with this Agreement, any Security Document or the
Loan and (ii) to indemnify the Agent, the Arrangers, the Security
Trustee and the Banks against any liability arising by reason of any
delay or omission by the Borrower to pay such duties or taxes.
8 PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
8.1 No set-off or counterclaim; distribution to the Banks
All payments to be made by the Borrower under this Agreement shall be
made in full, without any set-off or counterclaim whatsoever and,
subject as provided in clause 8.7, free and clear of any deductions or
withholdings, in Sterling on the due date to the account of the Agent
at such bank in London as the Agent may from time to time specify for
this purpose. Save as otherwise expressly provided by this Agreement
such payments shall be for the account of the Banks and the Agent shall
forthwith distribute such payments in like funds as are received by the
Agent to the Banks rateably in accordance with their Commitments and/or
Contributions, as the case may be.
8.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrower under this
Agreement shall be remitted in Sterling on the date of the relevant
Advance to the account of the Agent at such bank in London as the Agent
may have notified to the Banks and shall be paid by the Agent on such
date in like funds as are received by the Agent to the account of the
Borrower specified in the relevant Drawdown Notice.
8.3 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume that the payment will
be made when due and may (but shall not be obliged to) make such sum
available to the person so entitled. If it proves to be the case that
such payment was not made to the Agent, then the person to whom such
sum was so made available shall on request refund such sum to the Agent
together with interest thereon sufficient to compensate the Agent for
the cost of making available such sum up to the date of such repayment
and the person by whom such sum was payable shall indemnify the Agent
for any and all loss or expense which the Agent may sustain or incur as
a consequence of such sum not having been paid on its due date.
8.4 Non-Banking Days
When any payment under this Agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be extended
to the next following Banking Day unless such Banking Day falls in the
next calendar month in which case payment shall be made on the
immediately preceding Banking Day. If any date or day specifically
referred to in this Agreement (being a date for the making of any
payment under this Agreement) is not a Banking Day all references
thereto shall be deemed to be references to the immediately preceding
Banking Day.
8.5 Calculations
All interest and other payments of an annual nature under this
Agreement or to be calculated on an annual basis shall accrue from day
to day and be calculated on the basis of actual days elapsed and a 365
day year.
8.6 Certificates conclusive
Any certificate or determination of the Agent, any Arranger, the
Security Trustee or any Bank as to any rate of interest or any amount
payable under this Agreement shall, in the absence of manifest error,
be conclusive and binding on each TCN Entity and (in the case of a
certificate or determination by the Agent) on the Banks.
8.7 Grossing-up for Taxes
If at any time the Borrower is required to make any deduction or
withholding in respect of Taxes from any payment due under this
Agreement for the account of any Bank, any Arranger, the Security
Trustee or the Agent (or if the Agent is required to make any such
deduction or withholding from a payment to any Arranger, the Security
Trustee or a Bank), the sum due from the Borrower in respect of such
payment shall, subject to clause 8.8 and 8.9, be increased to the
extent necessary to ensure that, after the making of such deduction or
withholding, each Bank, any Arranger, the Security Trustee and the
Agent receives on the due date for such payment (and retains, free from
any liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made and the Borrower shall indemnify
each Bank, each Arranger, the Security Trustee and the Agent against
any losses or costs incurred by any of them by reason of any failure of
the Borrower to make any such deduction or withholding or by reason of
any increased payment not being made on the due date for such payment.
The Borrower shall promptly deliver to the Agent copies of (or, where
required, originals of) any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any
deduction or withholding as aforesaid.
8.8 Exemption
The Borrower is not obliged to pay any additional amount pursuant to
clause 8.7 above in respect of any deduction or withholding which would
not have been required if the relevant Bank had obtained any exemption
(including, for the avoidance of doubt, any exemption under a double
tax agreement) which it is able to or capable of obtaining. The
Borrower shall use reasonable endeavours to expedite any application
for exemption made by the relevant Bank.
8.9 Qualifying Banks
Each Bank confirms to the Borrower that on the date on which it becomes
a party to this Agreement that it is a Qualifying Bank and agrees
promptly to notify the Borrower if it ceases to be a Qualifying Bank.
If any Bank is not or ceases to be a Qualifying Bank, then (save in
circumstances where such Bank has ceased to be a Qualifying Bank by
reason of any change in any law, directive or regulation or in its
application or interpretation, in each case taking effect after the
date of this Agreement) the Borrower shall not be liable to pay to that
bank under clause 8.7 any sum in excess of the sum it would have been
obliged to pay if that Bank had been, or had not ceased to be, a
Qualifying Bank (and in the case of a Qualifying Bank under paragraph
(b) of the definition of "Qualifying Bank", on the assumption that the
Borrower has been directed by the United Kingdom Inland Revenue by a
notice in writing given under the Double Taxation Relief (Taxes on
Income) (General) Regulations 1970 that it shall make payments under
this Agreement to that Bank without deduction or withholding in respect
of UK tax).
8.10 Collecting Agent Rules
Each Bank confirms in favour of the Agent (on the date hereof or, in
the case of a Bank which becomes a party hereto pursuant to an
assignment or transfer, on the date on which the relevant assignment or
transfer becomes effective) that either:
(a) it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to the principal and interest payable by
the Agent to it under this Agreement; or
(b) it is a Bank as defined in section 840A of the Income and
Corporation Taxes Act 1998 and is beneficially entitled to the
principal and interest payable by the Agent to it under this
Agreement,
and each Bank shall promptly notify the Agent if there is any change in
its position from that set out above.
8.11 Claw-back of Tax benefit
If following any such deduction or withholding as is referred to in
clause 8.7 from any payment by the Borrower, the Agent, any Arranger,
the Security Trustee or any Bank shall receive or be granted a credit
against or remission for any taxes payable by it, the Agent, any
Arranger, the Security Trustee or such Bank shall, subject to the
Borrower having made any increased payment in accordance with clause
8.7 and to the extent that the Agent, such Arranger, the Security
Trustee or such Bank can do so without prejudicing the retention of the
amount of such credit or remission and without prejudice to the right
of the Agent, such Arranger, the Security Trustee or such Bank to
obtain any other relief or allowance which may be available to it,
reimburse the Borrower with such amount as the Agent, such Arranger,
the Security Trustee or such Bank shall in its absolute discretion
certify to be the proportion of such credit or remission as will leave
the Agent, such Arranger, the Security Trustee or such Bank (after such
reimbursement) in no worse position than it would have been in had
there been no such deduction or withholding from the payment by the
Borrower as aforesaid. Such reimbursement shall be made forthwith upon
the Agent, such Arranger, the Security Trustee or such Bank certifying
that the amount of such credit or remission has been received by it
provided that the Agent, the relevant Arranger, the Security Trustee or
the relevant Bank shall not unreasonably delay before so certifying.
Nothing contained in this Agreement shall oblige the Agent, any
Arranger, the Security Trustee or any Bank to disclose to the Borrower,
any other TCN Entity or any other person any information regarding its
tax affairs or tax computations or interfere with the right of the
Agent, such Arranger, the Security Trustee or such Bank to arrange its
tax affairs in whatever manner it thinks fit and, in particular, none
of the Agent, the Arrangers, the Security Trustee or the Banks shall be
under any obligation to claim relief from its corporate profits, tax
liability or similar tax liabilities in respect of such tax in priority
to any other claims, reliefs, credits or deductions available to it.
Without prejudice to the generality of the foregoing, none of the
Borrower or any other TCN Entity shall by virtue of this clause 8.9, be
entitled to enquire about the Agent's, any Arranger's, the Security
Trustee's or any Bank's tax affairs.
8.12 Bank accounts
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Agent shall maintain
a control account showing the Loan and other sums owing by the Borrower
under this Agreement and all payments in respect thereof made by the
Borrower from time to time. The control account shall be prima facie
evidence as to the amount from time to time owing by the Borrower under
this Agreement.
8.13 Partial payments
If, on any date on which a payment is due to be made by the Borrower
under this Agreement, the amount received by the Agent from the
Borrower falls short of the total amount of the payment due to be made
by the Borrower on such date then, without prejudice to any rights or
remedies available to the Agent and the Banks under this Agreement, the
Agent shall apply the amount actually received from the Borrower in or
towards discharge of the obligations of the Borrower under this
Agreement in the following order, notwithstanding any appropriation
made, or purported to be made, by the Borrower:
(a) first, in or towards payment to the Arrangers, of any portion of
the front end fee payable under clause 7.1(a) which shall have
become due but remains unpaid;
(b) secondly, in or towards payment to the Agent, the Arrangers, the
Security Trustee and the Banks, on a pro rata basis, of any
unpaid fees, costs and expenses of the Agent, the Arrangers, the
Security Trustee and the Banks under this Agreement and any
portion of the agency fee payable under clause 7.1(b) which
shall have become due but remains unpaid;
(c) thirdly, in or towards payment to the Banks, on a pro rata
basis, of any accrued commitment commission payable under clause
7.1(c) which shall have become due but remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata
basis, of any accrued interest which shall have become due but
remains unpaid;
(e) fifthly, in or towards payment to the Banks, on a pro rata
basis, of any principal which shall have become due but remains
unpaid;
(f) sixthly, in or towards payment of any other sum which shall have
become due but remains unpaid (and, if more than one such sum so
remains unpaid, on a pro rata basis).
The order of application set out in this clause 8.13 may be varied by
the Agent if all Banks so direct.
9 REPRESENTATIONS AND WARRANTIES
9.1 Repeated representations and warranties
Each TCN Entity severally represents and warrants in respect of itself
and, in the case of the Borrower, each other member of the TCN Group to
each of the Banks, the Arrangers, the Security Trustee and the Agent
that:
(a) Due incorporation of the Borrower and the Charging Subsidiaries
the Borrower, each Charging Subsidiary and each other Subsidiary
of the Borrower are duly incorporated and validly existing under
the laws of the respective countries of their incorporation as
limited liability companies and have power to carry on their
respective business as they are now being and hereafter proposed
to be conducted and to own their respective property and other
assets;
(b) Power of the Borrower and each Charging Subsidiary
the Borrower and each Charging Subsidiary have all requisite
power to execute, deliver and perform their respective
obligations under this Agreement and the Security Documents to
which they are party including, in the case of the Borrower to
borrow the Commitments; compliance has been made with all
necessary requirements and all necessary corporate, shareholder
or other action has been taken by the Borrower and each Charging
Subsidiary to authorise the execution, delivery and performance
of this Agreement and the Security Documents to which they are a
party; no limitation on the powers of the Borrower to borrow
will be exceeded as a result of borrowings under this Agreement
and notwithstanding the generality of the foregoing, each
Charging Subsidiary (where necessary) has amended its Articles
of Association to permit:
(i) any transfer of its shares in favour of the Security
Trustee (or its nominee) pursuant to any Security
Document; and
(ii) any transfer of its shares where such transfer is duly
executed by the Security Trustee (or its nominee)
pursuant to any power of sale under any Security
Document;
(c) Due formation of Charging Partnerships
each Charging Partnership is a general or limited partnership
duly formed, validly existing and in good standing under the
laws of the State of Colorado or England and having other TCN
Entities (being in the case of the Charging Partnerships formed
in the State of Colorado, the TCN Entities that have executed or
are expected to execute the Pledge and Security Agreements) as
its only partners (there being no outstanding rights to acquire
further interests therein) and has provided to the Agent a true,
correct and complete copy of the partnership agreement pursuant
to which it was formed and currently exists, as amended to date.
Each Charging Partnership has the power and authority to own its
properties and to carry out its business as it is now being and
is hereafter proposed to be conducted. Each Charging Partnership
is duly qualified, validly existing and in good standing and
authorised to do business in each jurisdiction in which the
character of its properties or the nature of its business
requires such qualification or authorisation;
(d) Power of the Charging Partnerships
each Charging Partnership has all requisite power to execute,
deliver and perform its obligations under this Agreement and the
Security Documents to which it is a party, compliance has been
made with all necessary requirements and all necessary action
has been taken to authorise the execution, delivery and
performance by each Charging Partnership of this Agreement and
the Security Documents to which it is a party; no resolution
(other than resolutions that have already been adopted) is
required pursuant to the terms of any partnership agreement
forming any Charging Partnership to authorise the execution,
delivery and performance by it of this Agreement and the
Security Documents to which it is a party;
(e) Binding Obligations
this Agreement constitutes valid and legally binding obligations
of each TCN Entity enforceable in accordance with its terms
subject to the qualifications contained in the legal opinions
referred to in Schedule 3 which relate to this Agreement. The
Security Documents to which they are a party constitute valid
and legally binding obligations of each TCN Entity enforceable
in accordance with their respective terms subject to the
qualifications contained in the legal opinions referred to in
Schedule 3 which relate to the relevant Security Document and
for this purpose any statement contained in the qualifications
to any such legal opinion that no opinion is given or expressed
in relation to any particular matter shall be deemed to be a
qualification of such opinion as regards such matter;
(f) No conflict with other obligations
the execution and delivery of, the performance of their
respective obligations under, and compliance with the provisions
of, this Agreement by each TCN Entity and the Security Documents
to which they are a party by each TCN Entity will not (i)
contravene in any material respect any existing applicable law,
statue, rule or regulation or any judgment, decree or permit to
which any TCN Entity is subject, (ii) (in the case of the
Borrower and each Charging Subsidiary) contravene or conflict
with any provision of the Memorandum and Articles of Association
of the Borrower or any Charging Subsidiary, (iii) (in the case
of each Charging Partnership) contravene or conflict with any
provision of the partnership agreement of any Charging
Partnership, (iv) breach in any material respect any term of the
Licences or the Necessary Authorisations, (v) conflict with in
any material respect, or result in any breach of any of the
terms of, or constitute a default under any agreement (including
any partnership agreements) to which any TCN Entity is a party
or is subject or by which it or any of its property is bound or
(vi) result in the creation or imposition of or oblige any TCN
Entity, any Subsidiary or Associated Partnership of the Borrower
or any of their respective Associated Companies or Associated
Partnerships to create any Encumbrance (other than those created
by the Security Documents) on any TCN Entity, any Subsidiary or
Associated Partnership of the Borrower's or any of their
respective Associated Companies' or Associated Partnerships'
undertakings, assets, rights or revenues;
(g) No litigation
no litigation, arbitration or administrative proceeding is
taking place, pending or, to the knowledge of the officers of
any TCN Entity (as the case may be), threatened against any TCN
Entity or Telewest which (if adversely determined) would or is
reasonably likely, in the opinion of the Agent, to have a
Material Adverse Effect;
(h) Financial statements
(i) the audited financial statements of the Telewest Group,
the TCN Group and the Borrower in respect of the
financial year ended on 31 December 1996 as delivered to
the Agent have been prepared in accordance with GAAP
which principles have (save, in relation to any
repetition of this warranty pursuant to this Agreement,
where the Borrower is permitted to prepare financial
statements on a New Basis and is not required to prepare
financial statements on the Original Basis (each as
defined in clause 10.1(i))) been consistently applied
and present fairly and accurately the financial position
of each such entity as at such date and the results of
the operations of each such entity respectively for the
financial year ended on such date and, as at such date,
no such entity had any significant liabilities
(contingent or otherwise) nor any significant unrealised
or anticipated losses, which, in any such case, are not
disclosed by, or reserved against in, such financial
statements;
(ii) the pro forma consolidated financial projections for the
financial years ending 31 December 1998 to 31 December
2006 inclusive for the TCN Group and the operating
statistics projections for each Region for such
financial years, and the Long Range Plan have been
prepared based upon historical financial information and
upon the assumptions set forth therein, which
assumptions were reasonable both when made and are
reasonable on the date hereof;
(i) No filing required
it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement or
any of the Security Documents that any of them or any other
instrument be notarised, filed, recorded, registered or enrolled
in any court or public office (save for (i) the registration of
the Debenture, the Pledge and Security Agreements, the Telewest
Loan Assignment, the Telewest National Network Licence
Assignment and the Scottish Security Documents pursuant to
Section 395 or 410 Companies Xxx 0000, to the extent required
thereunder and, in the case of (1) the Debenture, pursuant to
the Land Registration Xxx 0000 and the Land Charges Act 1925 and
regulations made thereunder and (2) the Standard Securities, the
recording thereof in the Register of Sasines or registration
thereof in the Land Register for Scotland (as appropriate) and
(ii) the filing of UCC-1 Financing Statements and continuation
statements with respect to the Pledge and Security Agreements
pursuant to the Colorado Uniform Commercial Code);
(j) Choice of law
the choice by each TCN Entity of English law to govern this
Agreement and the Security Documents to which they are a party
(other than the Pledge and Security Agreements and the
Reimbursement Agreement, under which Colorado law is to govern
and the Scottish Security Documents, under which Scots law is to
govern) and the submission by such TCN Entity to the
jurisdiction of the English courts, are valid and binding
subject to the qualifications contained in the legal opinions
referred to in Schedule 3 which relate to this Agreement or the
Security Documents and for this purpose any statement contained
in the qualifications to any such legal opinion that no opinion
is given or expressed in relation to any particular matter shall
be deemed to be a qualification of such opinion as regards such
matter;
(k) Legal and beneficial owners
subject to any Permitted Encumbrances, the TCN Entities are the
legal and beneficial owners of and have good and marketable
title to all their respective properties and other material
assets free from any Encumbrances;
(l) No material adverse change
there has been no adverse change in the financial position of
the TCN Group from that set forth in the financial statements
referred to in clause 9.1(h)(i) and there has been no adverse
change in the operations or business prospects of the TCN Group
from that set forth in such financial statements which, in
either case, would or is reasonably likely, in the opinion of
the Agent, to have a Material Financial Adverse Effect;
(m) Solvency
after giving effect to the transactions contemplated hereby, the
Advances to be made hereunder and the application of the
proceeds thereof, and taking into account the execution,
delivery and effectiveness of the Reimbursement Agreement, (i)
on a pro forma basis, the fair value and the present fair
saleable value of each Associated Partnership's assets will
exceed that Associated Partnership's stated liabilities and
identified contingent liabilities, (ii) each Associated
Partnership will have the ability to pay its debts as they
become absolute or mature, and (iii) the capital or assets
remaining in each Associated Partnership after consummation of
the transactions contemplated hereby will not be unreasonably
small to conduct that Associated Partnership's business as it is
now conducted and is proposed to be conducted during the term
hereof;
(n) Compliance with Environmental Laws and Licences
each member of the TCN Group:
(i) complies and has at all times complied with all
Environmental Laws and Environmental Licences and all
other laws, regulations and judgments (other than
Telecommunications and Cable Laws) the breach of which
would or is reasonably likely to have a Material
Financial Adverse Effect; and
(ii) has obtained and maintains in full force and effect all
Environmental Licences, and there are no facts or
circumstances entitling any such Environmental Licences
to be revoked, suspended, amended, varied, withdrawn or
not renewed where such revocation, suspension,
amendment, variation, withdrawal or non-renewal, would
or is reasonably likely to have a Material Financial
Adverse Effect;
(o) Environmental Claim
no Environmental Claim is pending or has been made or threatened
against any member of the TCN Group or any of their respective
officers or any occupier of any property owned or leased by any
member of the TCN Group and no member of the TCN Group has any
reason to believe that it or, in the case of the Borrower, any
of its Subsidiaries or Associated Partnerships has or is likely
to have any liability in relation to Environmental Matters which
would or is reasonably likely to have a Material Financial
Adverse Effect;
(p) Deposit of Relevant Substance
to the best of its knowledge and belief, no Relevant Substance
has been deposited, disposed of, kept, treated, imported,
exported, transported, processed, manufactured, used, collected,
sorted or produced at any time, or is present in the environment
(whether or not on property owned, leased, occupied or
controlled by any member of the TCN Group) in circumstances
which are likely to result in an Environmental Claim against any
member of the TCN Group which would, or is reasonably likely to
have a Material Financial Adverse Effect;
(q) Disclosure of inspection results
full details have been given to the Agent of any inspections,
investigations, studies, audits, tests, reviews or other
analyses in relation to Environmental Matters relating to any
member of the TCN Group or to the best of the knowledge of any
member of the TCN Group (as the case may be) any property now
owned, leased or occupied by any member of the TCN Group and of
all Environmental Licences which disclose any matters which
would or would be reasonably likely to have a Material Financial
Adverse Effect;
(r) Intellectual Property Rights
(i) the Intellectual Property Rights owned by each member of
the TCN Group are free from any Encumbrance (save for
those created or to be created by or pursuant to the
Security Documents) and any other rights or interests in
favour of third parties;
(ii) the Intellectual Property Rights owned by each member of
the TCN Group are all the Intellectual Property Rights
required by them in order to carry on, maintain and
operate in all material respects their respective
businesses, properties and assets and no member of the
TCN Group in carrying on its business infringes any
Intellectual Property Rights of any third party where
any action taken by such third party in respect of any
such infringement would or is reasonably likely to have
a Material Financial Adverse Effect; and
(iii) no Intellectual Property Rights owned by each member of
the TCN Group are being infringed, nor is there any
threatened infringement of any such Intellectual
Property Rights which, in either case would or is
reasonably likely to have a Material Financial Adverse
Effect; and
(s) Copyright matters
each member of the TCN Group has obtained all consents and taken
all other action required in connection with the secondary
transmission by it of any broadcast television signals and no
member of the TCN Group has any knowledge, nor is it aware of
any claim, that it is or may be liable to any person for any
copyright infringement of any nature whatsoever as a result of
the operation of its business which liability in the opinion of
the Agent would or is reasonably likely to have a Material
Financial Adverse Effect.
9.2 Further Representation and Warranties
Each TCN Entity severally further represents and warrants in respect of
itself and, in the case of the Borrower, each other member of the TCN
Group to each of the Banks, the Arrangers, the Security Trustee and the
Agent that:
(a) Principal Agreements
(i) the Principal Agreements which have been entered into on or
prior to the date of this Agreement are in full force and effect
and (ii) to the best of its knowledge and belief after due
enquiry, (1) no party is in breach of the terms thereof, (2)
there is no dispute subsisting between the parties thereto and
(3) no amendments have been made thereto (save for any
amendments thereto referred to in schedule 10 to this
Agreement);
(b) Licences and Necessary Authorisations
the Licences are in full force and effect and each TCN Entity
(as the case may be) is in compliance in all material respects
with all provisions thereof. Each TCN Entity has secured all the
Necessary Authorisations, all such Necessary Authorisations are
in full force and effect and each TCN Entity is in compliance in
all material respects with all provisions thereof. To the best
of the knowledge of the TCN Entity, neither the Licences nor any
of the Necessary Authorisations are the subject of any pending
or threatened attack or revocation;
(c) Consents obtained
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public
bodies or authorities or courts (other than the Licences and the
Necessary Authorisations) required by each TCN Entity to
authorise, or required by each TCN Entity in connection with,
the execution, delivery, validity, enforceability or
admissibility in evidence of this Agreement and the Security
Documents to which they are a party or the performance by each
TCN Entity of their respective obligations under this Agreement
and the Security Documents (other than (i) the registration of
the Debenture, the Pledge and Security Agreements, the Telewest
Loan Assignment, the Telewest National Network Licence
Assignment and the Scottish Security Documents pursuant to
Section 395 or 410 of the Companies Xxx 0000, to the extent
required thereunder and, in the case of (1) the Debenture,
pursuant to the Land Registration Xxx 0000 and the Land Charges
Act 1925 and regulations made thereunder and (2) the Standard
Securities, the recording thereof in the Register of Sasines or
registration thereof in the Land Register for Scotland (as
appropriate) and (ii) the filing of UCC-1 Financing Statements
with respect to the Pledge and Security Agreements pursuant to
the Colorado Uniform Commercial Code) has been obtained or made
and is in full force and effect and there has been no material
default in the observance of the conditions or restrictions (if
any) imposed in, or in connection with, any of the same;
(d) Contractual commitments
no dividends of the Borrower or repayments of the capital
contributions made by Telewest to the Borrower or any other
rights or benefits have been declared, made or paid by the
Borrower and no member of the TCN Group has entered into any
contractual commitments of a material nature (other than (i) the
Principal Agreements, (ii) for the purpose of carrying out the
business of constructing, installing and operating cable
television and telecommunications systems in the TCN Franchises
or such other business as is permitted by the terms of this
Agreement or (iii) contractual commitments arising pursuant to
or constituting Permitted Borrowings, Permitted Disposals,
Permitted Guarantees, Permitted Intra-TCN Group Transactions,
Permitted Investments or Permitted Encumbrances);
(e) No withholding Taxes
as at the date of this Agreement, on the basis that all of the
Banks are Qualifying Banks (and in the case of a Qualifying Bank
under paragraph (b) of the definition of "Qualifying Bank", on
the assumption that the Borrower has been directed by the United
Kingdom Inland Revenue by a notice in writing given under the
Double Taxation Relief (Taxes on Income) (General) Regulations
1970 that it shall make payments under this Agreement to that
Bank without deduction or withholding in respect of UK tax), no
Taxes are imposed by withholding or otherwise on any payment to
be made to the Agent, the Arrangers, the Security Trustee or the
Banks by any TCN Entity under this Agreement or any Security
Document to which any of them is a party or are imposed on or by
virtue of the execution or delivery by any TCN Entity of this
Agreement or any Security Document to which any of them is a
party or any document or instrument to be executed or delivered
under this Agreement or any such Security Document (other than
stamp duty payable on any Security Document);
(f) Telecommunications and Cable Laws
each member of the TCN Group complies and has at all times
complied in all material respects with all Telecommunications
and Cable Laws but excluding, for these purposes only, breaches
of Telecommunications and Cable Laws which have been expressly
waived by the relevant regulatory authority;
(g) No Default
no Default has occurred and is continuing which has not been
expressly waived;
(h) Long Range Plan
to the best of the Borrower's knowledge and belief after due
enquiry, as at the date of the Long Range Plan all opinions,
projections and forecasts contained therein and the assumptions
on which such opinions, projections and forecasts were based
were arrived at after due and careful consideration and enquiry
and represent the views of the Borrower as at the date of the
Long Range Plan; none of the opinions, projections and forecasts
contained in the Long Range Plan (and the assumptions on which
such opinions, projections and forecasts were made) were or are
misleading in any material respect either as at the date of the
Long Range Plan or as the date of this Agreement.
No warranty or representation is made in respect of any
opinions, projections, forecasts or circumstances relating to
the cable and telecommunications industry as a whole
("Information"), (ii) any person other than Telewest, the
Borrower and members of the TCN Group or (iii) any Information
which is in the public domain or which is identified in the Long
Range Plan as having been obtained from or made by a source, or
being those of a person, other than the Borrower, any other
member of the TCN Group or Telewest;
(i) Carry on business solely in UK
each of the TCN Entities (i) does not employ any employees in
the State of Colorado or elsewhere in the United States of
America and (ii) carries on business solely in, and its
principal places of business, books and records and the property
(other than the interests in the Original Charging Partnerships)
subject to the Security Documents are located in, the United
Kingdom (except that, in the case of any Charging Partnership
formed in the State of Colorado, if it maintains an office in
the United States of America, it maintains such office in the
State of Colorado). Control and management of each of the TCN
Entities takes place outside the United States of America; and
(j) Immaterial Group Entities
each member of the TCN Group (other than Cable Guide Limited
(registered no. 2025654) and each of the Acceding TCN Entities)
which is not an Immaterial Group Entity is a party to this
Agreement and each Original Non-Charging Subsidiary (other than
Cable Guide Limited and each of the Acceding TCN Entities) is an
Immaterial Group Entity.
9.3 Repetition
The representations and warranties in clause 9.1 (and so that (i) the
representation and warranty in clause 9.1(h)(i) shall for this purpose
refer to the then latest audited financial statements of the Borrower
or the latest consolidated financial statements of the TCN Group or the
Telewest Group (as applicable) verified by the auditors of the TCN
Group and delivered to the Agent under clause 10.1, (ii) the
representation and warranty contained in clause 9.1(h)(ii) shall for
this purpose refer to the then latest pro forma consolidated financial
projections of the TCN Group and the then latest operating statistics
projections for each Region and shall not include a representation or
warranty as to the Long Range Plan, and (iii) the representation and
warranty in clause 9.1(l) shall for this purpose refer to the latest
audited financial statements of the TCN Group delivered to the Agent
under clause 10.1) shall be deemed to be repeated by each TCN Entity in
respect of itself on and as of each Interest Payment Date and the date
on which each Advance is made under this Agreement. Additionally, the
Borrower shall be deemed to represent and warrant as at each such date
in respect of the then latest audited and/or verified financial
statements delivered to the Agent under clause 10.1(f) that (A) such
financial statements have been prepared in accordance with GAAP which
have been consistently applied (save as provided for in Clause 10.1(i))
and present fairly and accurately the financial position of the
Borrower and the consolidated financial position of the TCN Group and
the Telewest Group respectively as at the dates to which such financial
statements were made up and the results of the operations of the
Borrower and the consolidated results of the operations of the TCN
Group and the Telewest Group respectively for the financial year ended
on such date and that as at such date, neither the Borrower nor any
member of the TCN Group nor the Telewest Group had any significant
liabilities (contingent or otherwise) which are not disclosed by, or
reserved against in, such financial statements (or the notes thereto)
and neither the TCN Group nor the Telewest Group had any unrealised or
anticipated losses and (B) there has been no adverse change in the
financial position of the Borrower or the consolidated financial
position of the TCN Group or the Telewest Group from that set forth in
the latest set of financial statements delivered pursuant to clause
10.1(f) and there has been no adverse change in the operations or
business prospects of the Borrower or the TCN Group or the Telewest
Group from that set forth in such financial statements which, in either
case, would or is reasonably likely to have a Material Financial
Adverse Effect.
10 POSITIVE COVENANTS
10.1 Covenants
Each TCN Entity jointly and severally undertakes with each of the
Banks, each of the Arrangers, the Security Trustee and the Agent that
they will from the date of this Agreement and so long as any monies are
owing under this Agreement or any part of the Commitments remains
outstanding:
(a) Notice of Default, etc.
promptly inform the Agent of (i) any occurrence of which it
becomes aware which would or is reasonably likely to have a
Material Adverse Effect (ii) any Default and any potential
breach of any of the undertakings set out in clause 12
forthwith upon becoming aware thereof and will from time to
time, if so requested by the Agent, confirm to the Agent in
writing that, save as otherwise stated in such confirmation,
no Default has occurred and is continuing, (iii) any lapse,
suspension or termination of or refusal by any person to renew
or extend any Licence or Necessary Authorisation or any breach
of any Licence or Necessary Authorisation where any such
breach would or is reasonably likely to have a Material
Adverse Effect, (iv) (to the extent known to any TCN Entity)
the commencement of all proceedings and investigations by or
before any governmental body and all actions and proceedings
in any court or before any arbitrator where any such
proceedings, investigations or actions would, if adversely
determined, have a Material Adverse Effect (v) any application
of which it becomes aware for any other licence or franchise
agreement by means of cable television systems (including
satellite master antennae television systems and multi-point
microwave distribution systems) with respect to the territory
covered by the Licences where any such application, if
successful, would or is reasonably likely to have a Material
Adverse Effect and (vi) any breach of any Telecommunications
and Cable Laws by any member of the TCN Group which would or
is reasonably likely to have a Material Adverse Effect.
(b) Consents and authorisations
obtain or cause to be obtained (i) every consent,
authorisation, licence (other than a Licence or a renewal or
extension thereof) or approval of, or registration with or
declaration to, governmental or public bodies or authorities
or courts and (ii) every notarisation, filing, recording,
registration or enrolment in any court or public office in the
United Kingdom (in any such case) required by any TCN Entity
or Telewest to authorise the execution, delivery, validity,
enforceability or admissibility in evidence of this Agreement
and the Security Documents or the performance by any TCN
Entity or Telewest of their respective obligations under this
Agreement and the Security Documents to which they are a
party;
(c) Licences
(i) obtain or cause to be obtained every Licence and ensure
that (A) where there are any Subscribers within the
relevant TCN Franchise subscribing for services covered
by a Licence, (1) such Licence is not revoked,
cancelled, suspended, withdrawn, terminated, expires or
otherwise ceases to be in full force and effect unless
the same is, prior to or contemporaneously with such
event, renewed or replaced and (2) none of the DTI, ITC,
OFTEL nor any other relevant authority issues any notice
in respect of any TCN Franchise informing Telewest or
any TCN Entity that it has or will (whether or not
following the failure to satisfy certain conditions)
revoke, cancel, suspend, withdraw, terminate or not
permit the renewal of such Licence (whether or not such
notice gives Telewest or any TCN Entity a period within
which to remedy the matter which gave rise to such
notice) and (B) such Licence is not modified and no TCN
Entity commits any breach of the terms or conditions
thereof (including, without limitation, any failure to
meet the milestones referred to therein) where any such
modification, breach or failure would or is reasonably
likely, in the opinion of the Agent, to have a Material
Financial Adverse Effect;
(ii) apply to extend or renew each Licence no later than 12
months before the date on which the same is scheduled to
expire and take all steps required by Telecommunications
and Cable Laws and all other steps reasonably necessary
to effect the extension or renewal of the same for a
period extending to at least 30 June 2008;
(d) Necessary Authorisations
obtain or cause to be obtained every Necessary Authorisation
and ensure that (i) none of the Necessary Authorisations is
revoked, cancelled, suspended, withdrawn, terminated, expires
and is not renewed or otherwise ceases to be in full force and
effect and (ii) no Necessary Authorisation is modified and no
TCN Entity commits any breach of the terms or conditions of
any Necessary Authorisation which, in the case of any of the
actions or events referred to in either (i) or (ii), would or
is reasonably likely, in the opinion of the Agent, to have a
Material Adverse Effect;
(e) Business of the Borrower and the Charging Subsidiaries
in the case of the Charging Subsidiaries and Charging
Partnerships, engage in the business of acting as the holder
of shares and/or partnership interests in other TCN Entities
and/or the business of constructing, installing, operating and
utilising cable television and telecommunications systems in
the TCN Franchises and in no other activities save for any
directly related business reasonably considered to be
financially beneficial to such business; in the case of the
Borrower engage in the business of acting as the holding
company of its Subsidiaries and Associated Partnerships (which
shall include the raising of Permitted Borrowings and the
onlending of such Borrowed Money to TCN Entities or to
Telewest in accordance with the provisions of this Agreement)
and in no other activities;
(f) Financial statements
prepare financial statements of the Borrower and consolidated
financial statements of the Telewest Group and the TCN Group
in accordance with GAAP and cause such financial statements to
be reported on by their respective auditors and deliver to the
Agent sufficient copies of the same for distribution to all of
the Banks, unless such Bank is also a bank under the Senior
Loan Agreement and such document is deliverable to it under
the Senior Loan Agreement, as soon as practicable but not
later than 180 days after the end of the financial year to
which they relate;
(g) Quarterly Management Accounts
in respect of each Quarterly Period, prepare unaudited
consolidated Quarterly Management Accounts for the TCN Group
and the Telewest Group in each case containing information of
the same type and to the same level of detail as in the format
agreed with the Arrangers (including, without limitation, a
profit and loss account, balance sheet, cash flow statement
and, in relation to each Region, a summary of operating
statistics in the agreed form and, in the case of the last
Quarterly Period of each financial year, a profit and loss
account, balance sheet and cash flow statement for that
financial year in the agreed form) or omitting any such
information or detail or containing such other information or
to such other level of detail or containing such other
information or to such other level of detail as may, from time
to time, be approved by the Agent (acting on the instructions
of the Majority Banks) in writing and deliver a copy of the
same to the Agent for distribution to all of the Banks as soon
as practicable but not later than 30 days (in the case of the
last Quarterly Period of each financial year, 50 days) after
the Quarterly Period to which they relate;
(h) Monthly Management Accounts
in respect of each calendar month ending during the Revolving
Period (and in respect of each calendar month after the end of
the Revolving Period for which the Borrower so chooses),
prepare unaudited consolidated Monthly Management Accounts for
the TCN Group in each case containing information of the same
type and to the same level of detail as in the format agreed
with the Arrangers (including, without limitation, a profit
and loss account, balance sheet and cash flow statement) or
omitting any such information or detail or containing such
other information or to such other level of detail or
containing such other information or to such other level of
detail as may, from time to time, be approved by the Agent
(acting on the instructions of the Majority Banks) in writing
and deliver a copy of the same to the Agent for distribution
to all of the Banks as soon as practicable but not later than
30 days (in the case of the last calendar month of each
financial year 50 days) after the calendar month to which they
relate;
(i) Change in basis of accounts
the Borrower shall ensure that all financial statements
delivered under Clause 10.1(f) are prepared in accordance with
GAAP and in accordance with the accounting principles and
practices used in the preparation of the financial statements
referred to in clause 9.1(h)(i) and the 1998 Budget (the
"ORIGINAL BASIS") consistently applied in respect of each
financial year unless to do so would be inconsistent with then
current GAAP (the "NEW BASIS"). If the preparation of
financial statements on the Original Basis is contrary to New
Basis then the Borrower shall promptly notify the Agent in
writing of the relevant change and (at the option of the
Borrower) shall either (1) prepare and deliver to the Agent
audited financial statements on both the Original Basis and
the New Basis (or shall prepare and deliver financial
statements on the New Basis only but shall also prepare and
deliver an audited reconciliation statement (a "RECONCILIATION
STATEMENT") showing those adjustments necessary in order to
reconcile the financial statements produced on the New Basis
to the Original Basis) or (2) request the Agent to enter into
good faith negotiations for such amendment (if any) as are
necessary to the covenants contained in Clause 12.1 and any
other provisions of this Agreement affected by such change, in
which event the Agent will enter into such negotiations for a
period of not more than 28 days. If agreement is reached
between the Borrower and the Agent (acting on the instructions
of the Majority Banks) within such period as to the amendment
of any such covenants or provisions, then the parties hereto
will enter into such documentation and take such other steps
as are required to put such amendments into effect following
which the Borrower shall then be obliged to produce financial
statements on the New Basis only. If no such agreement is
reached then the Borrower shall be obliged to prepare and
deliver financial statements on both the Original Basis and
the New Basis (or shall prepare and deliver audited financial
statements on the New Basis accompanied by a Reconciliation
Statement).
Where the Borrower is under an obligation to deliver financial
statements under clause 10.1(f) on both the Original Basis and
the New Basis (or on the New Basis but accompanied by a
Reconciliation Statement), Monthly Management Accounts and
Quarterly Management Accounts shall also be delivered on both
bases or on the New Basis but accompanied by a Reconciliation
Statement.
All financial statements, Quarterly Management Accounts,
Monthly Management Accounts and Reconciliation Statements
delivered pursuant to this clause 10.1(i) shall be delivered
within the relevant time period set out in clause 10.1.
The provisions of this clause 10.1(i) shall also apply,
mutatis mutandis, to the preparation and delivery of the
Annual Budget under clause 10.1(j)(a)(iii);
(j) Delivery of reports
deliver to the Agent, for distribution to the Banks (in the
case of a Compliance Certificate issued by the auditors of the
TCN Group) sufficient copies for all of the Banks, unless such
Bank is also a bank under the Senior Loan Agreement and such
document is deliverable to it under the Senior Loan Agreement,
or (in any other case):
(a) each of the following documents, in each case at the
time of issue thereof or (in the case of the
Compliance Certificates referred to in (ii) below)
together with the financial statements prepared in
respect of each financial year and Quarterly
Management Accounts prepared in respect of each
Quarterly Period pursuant to clause 10.1(g) in
respect of the financial period to which such
Compliance Certificate relates:
(i) every document issued by the Borrower to its
shareholders (in their capacity as a
shareholder) or issued by the Borrower or any of
its Subsidiaries or Associated Partnerships to
its creditors generally;
(ii) a Compliance Certificate stating that the
Borrower and each other member of the TCN Group
as at the last day of the financial period to
which such financial statements or Quarterly
Management Accounts relate were in compliance
with the relevant covenants and undertakings in
clause 12 (or if it was not in compliance
indicating the extent of the breach);
(iii) an Annual Budget for each financial year for the
TCN Group no later than 45 days after the
beginning of such financial year; and
(iv) no later than 90 days after the end of each
financial year, for the avoidance of doubt, not
including the financial year ending 31st
December 1997, revised financial projections and
revised projections for operating statistics in
relation to the TCN Group containing information
of the same type and to the same level of detail
as the operational statistics projections
contained in the Long Range Plan, such
projections to extend to at least the earlier of
(a) ten years from the end of such financial
year and (b) 31 December 2007 and to contain
details of the assumptions on the basis of which
such projections have been prepared and an
explanation of any discrepancies from the most
recently delivered financial projections and
projections for operating statistics delivered
under this sub-paragraph (j)(iv) (or, in the
case of the first such financial projections,
from the base case financial projections or
operating statistics projections (as the case
may be) contained in the Long Range Plan); and
(b) sufficient copies for all of the Banks of every document
or announcement issued by Telewest to its shareholders
generally or made available by Telewest to the public
where any such document or announcement relates to the
financial position or prospects of Telewest;
(k) Financial Year End
maintain a financial year end of 31 December for each TCN
Entity;
(l) Authorised Officers
ensure that any new or replacement Authorised Officer has
provided the Agent with evidence satisfactory to it of such new
officer(s)' authority and a specimen of his or their
signature(s) prior to signing any Compliance Certificates,
Drawdown Notices, Rollover Notices, Conversion Notices or any
other notices, requests or confirmations referred to in this
Agreement or relating to the facility granted pursuant to this
Agreement;
(m) Auditors
ensure that KPMG Peat Marwick is appointed as auditors of each
TCN Entity and not change such appointment without appointing a
major firm of recognised international standing and repute;
(n) Provision of Further Information
notify the Agent of any change to the business of any TCN Entity
where due to such change such business would thereafter be
carried on in a different Region providing details of such
change as soon as practicable after making such change and
provide the Agent with a copy of (i) each Principal Agreement
entered into after the date of this Agreement and (ii) any
material report, notice or other communication relating to the
Licences, the Necessary Authorisations and such financial and
other information concerning each TCN Entity and their
respective affairs as the Agent or any Bank (acting through the
Agent) may from time to time reasonably require;
(o) Insurance
maintain insurance cover in accordance with the terms and
conditions of the Security Documents and ensure that such
insurance cover is governed by English law;
(p) Inspection
permit representatives of the Agent or any of the Banks upon
three Banking Days' prior written notice to the Borrower and
after having made arrangements with the Borrower so to do to (a)
visit and inspect the properties of any TCN Entity during normal
business hours, (b) inspect and make extracts from and copies of
its books and records and (c) discuss with its principal
officers and auditors, its business, assets, liabilities,
financial position, results of operations and business
prospects;
(q) Notification of Environmental Claim and Expenditure
promptly on becoming aware of it inform the Agent of any
Environmental Claim which has been made or threatened against
any member of the TCN Group or any occupier of any property
owned or leased by any member of the TCN Group or any
requirement by any Environmental Licence or applicable
Environmental Laws for any member of the TCN Group to make any
investment or incur any expenditure in excess of (pound)500,000
in aggregate in any calendar year or to take or desist from
taking any action which would or is reasonably likely, if
substantiated, to have a Material Financial Adverse Effect;
(r) Delivery of Environmental Licences and other information
promptly on receipt provide the Agent with copies of all
material Environmental Licences and the terms and conditions
thereof and any material amendments thereto;
(s) Compliance with laws and regulations
comply with the terms and conditions of all laws (other than
Telecommunications and Cable Laws, the Licences and the
Necessary Authorisations including any milestone requirements in
respect thereof), regulations, agreements, licences and
concessions including, without limitation, all Environmental
Laws and all Environmental Licences if the failure to comply
therewith, would or is reasonably likely, in the opinion of the
Agent, to have a Material Financial Adverse Effect;
(t) Relevant Substance
notify the Agent forthwith upon becoming aware of any Relevant
Substance at or brought on to any property owned, leased or
occupied by any member of the TCN Group which is likely to give
rise to an Environmental Claim which would or is reasonably
likely to have a Material Financial Adverse Effect and take or
procure the taking of all necessary action to deal with, remedy
or remove from such property or prevent the incursion of (as the
case may be) that Relevant Substance in order to prevent such an
Environmental Claim and in a manner that complies with all
requirements of Environmental Law;
(u) Taxes
file or cause to be filed all tax returns required to be filed
in all jurisdictions in which it is situated or carries on
business or is otherwise subject to Taxation and will pay all
Taxes shown to be due and payable on such returns or any
assessments made against it within the period stipulated for
such payment (other than those being contested in good faith and
where such payment may be lawfully withheld);
(v) Cost capitalisation policy
maintain a cost capitalisation policy consistent with the cost
capitalisation policy used in the preparation of the financial
statements referred to in clause 9.1(h)(i) or such other cost
capitalisation policy as may be approved by the auditors and the
Agent (acting on the instructions of the Majority Banks) from
time to time;
(w) Use of Proceeds
ensure that the Borrower uses the Loan exclusively for the
purposes specified in clause 1.1;
(x) New TCN Entities
it will and will procure that each Subsidiary or Associated
Partnership that is or becomes a member of the TCN Group (other
than an Immaterial Group Entity unless such Immaterial Group
Entity no longer complies with the definition of Immaterial
Group Entity) and which is not already a party to this Agreement
promptly upon such Subsidiary or Associated Partnership becoming
a member of the TCN Group, executes and delivers a Supplemental
Deed and provides the Agent with such evidence as it may
reasonably request as to the power and authority of such party
to enter into such Supplemental Deed and that such Supplemental
Deed constitutes (subject to any qualifications contained in any
legal opinions delivered in connection therewith and reasonably
acceptable to the Majority Banks and for this purpose any
statement contained in the qualification to any such legal
opinion that no opinion is given or expressed in relation to any
particular matter shall be deemed to be a qualification of such
opinion as regards such matter) valid and legally binding
obligations of such party enforceable in accordance with its
terms. The parties hereto agree that upon the execution and
delivery of such Supplemental Deed by all parties thereto such
Subsidiary or Associated Partnership shall become a party to
this Agreement as a TCN Entity and a party to each relevant
Security Document as a chargor;
(y) Maintain Operating Capacity
ensure that the TCN Group will maintain:
(i) managerial, subscriber and technical services from time
to time sufficient, in the reasonable opinion of the
Borrower to meet the projected demand from Subscribers
for cable television and telephony services at that
time; and
(ii) switch capacity from time to time sufficient, based on
the projections most recently delivered under Clause
10.1(j)(a)(iv) (or, if none, the projections contained
in the Long Range Plan), to meet the projected demand
from Subscribers for cable telephony services at that
time;
(z) Reimbursement Agreement
comply with their respective obligations under the Reimbursement
Agreement and not assign or transfer all or any part of their
respective rights and/or obligations under the Reimbursement
Agreement or amend, vary or waive all or any of the provisions
of the Reimbursement Agreement;
(aa) Security Documents
provide to the Security Trustee within six months of the date
of this Agreement, the Debenture, the Deed of Subordination,
the Telewest Loan Assignment, the Telewest National Network
Licence Assignment, the Share Charge and the Security Trust
Deed, each duly executed by each party thereto other than the
Security Trustee;
(bb) 1998 Financial Statements
deliver to the Agent sufficient copies for all the Banks of
consolidated financial statements of both the Telewest Group
and the TCN Group in respect of the financial year ending 31st
December, 1998 within 120 days of the end of such financial
year and reported on by their respective auditors so that the
report of the auditors on such consolidated financial
statements is not qualified in any way whatsoever except where
the qualification is of a technical nature and the remedy for
the matter giving rise to such qualification would have no
effect on the results of the Telewest Group or the TCN Group,
as the case may be for the period to which such accounts
relate or on the financial position of the Telewest Group or
the TCN Group, as the case may be, as at the end of such
periods; and
(cc) Acceding TCN Entities
ensure that:
(i) the Acceding TCN Entities accede to this Agreement and
the relevant Security Documents within 14 days of the
date hereof, and the parties hereto acknowledge that
this shall be in accordance with and in due satisfaction
of the covenant set out in Clause 10.1(x) hereof; and
(ii) within 28 days of the date hereof, the articles of the
Borrower and the Acceding TCN Entities shall be amended
in a similar manner to the equivalent amendment to the
articles to certain TCN Entities effected at or about
the date of the Senior Loan Agreement in order to
prevent the directors of the Borrower or the relevant
Acceding TCN Entity refusing to register any transfer of
the shares in the Borrower or the relevant Acceding TCN
Entity charged pursuant to any relevant Security
Document.
11 NEGATIVE COVENANTS
11.1 Covenants
Each TCN Entity jointly and severally undertakes with each of the
Banks, each of the Arrangers, the Security Trustee and the Agent from
the date of this Agreement and so long as any monies are owing under
this Agreement or any of the Commitments remain outstanding that,
without the prior written consent of the Agent acting on the
instructions of the Majority Banks:
(a) Negative Pledge
they will not permit any Encumbrance (other than Permitted
Encumbrances) by any member of the TCN Group to subsist, arise
or be created or extended over all or any part of their
respective present or future undertakings, assets, rights or
revenues to secure or prefer any present or future Indebtedness
of any member of the TCN Group or any other person;
(b) No Merger
they will procure that no member of the TCN Group merges or
consolidates with any other company or person;
(c) Disposals
they will procure that no TCN Entity sells, transfers, leases,
lends or otherwise disposes of or ceases to exercise control
over the whole or any part of their present or future
undertakings, assets, rights or revenues whether by one or a
series of transactions related or not other than Permitted
Disposals, provided that in the case of any Permitted Intra-TCN
Group Transaction which involves any asset of any nature being
transferred by any means whatsoever (directly or indirectly) by
the Borrower, an Original Charging Subsidiary or an Original
Charging Partnership to another TCN Entity (not being the
Borrower, an Original Charging Subsidiary or an Original
Charging Partnership), the relevant transfer must be made
expressly subject to the security interests granted under the
Security Documents;
(d) Borrowed Money
they will procure that no member of the TCN Group creates,
assumes, incurs or otherwise permits to be outstanding any
Borrowed Money other than Permitted Borrowings;
(e) Guarantees
they will procure that no member of the TCN Group incurs any
obligations or assumes any liability under any guarantee other
than Permitted Guarantees;
(f) Issue of Shares
neither the Borrower nor any other member of the TCN Group
issues any shares of any class provided that the Borrower may
issue shares to Telewest and any member of the Group may issue
shares to any TCN Entity provided that such shares are charged
in favour of the Security Trustee pursuant to the terms of a
Security Document and there are delivered to the Security
Trustee at the same time, if the Borrower is not and may not
be obliged to deliver them under the Senior Loan Agreement or
any security document relating to the Senior Loan Agreement,
the relevant share certificates and blank stock transfer forms
in respect thereof;
(g) Investments
they will procure that no member of the TCN Group (i) makes
any loan or advance to, or enters into any transaction having
the effect of lending money with, any person or otherwise
acquires for a consideration any document evidencing
Indebtedness, capital stock or other securities of any person
or (ii) acquires all or any substantial part of the assets,
property or business of any other person or any assets that
constitute a division or operating unit of the business of any
other person or creates or acquires any Subsidiary or
Associated Partnership other than in the case of any of (i)
and (ii) above, Permitted Investments;
(h) Capital Expenditure
they will procure that no member of the TCN Group incurs any
capital expenditure other than (a) in relation to the business
of constructing, installing, operating and utilising cable
television and telecommunications systems in the area
permitted by the Licences or any directly related business
reasonably considered to be financially beneficial thereto or
(b) in Permitted Investments;
(i) Swaps and Hedging
they will procure that no member of the TCN Group enters into
any interest rate or currency swaps or other hedging
arrangements other than in the case of a TCN Entity (i)
directly relating to the risk management of any Borrowed Money
permitted to subsist by the terms of this Agreement or (ii)
forward foreign exchange contracts entered into in the normal
course of business in relation to future liabilities of such
TCN Entity incurred in relation to the construction,
maintenance or operation of the Cable Systems up to an
aggregate notional principal amount at any time outstanding of
(in respect of all such contracts entered into by TCN
Entities) (pound)80,000,000, for a period not in excess of 15
months and having an average life not in excess of nine
months;
(j) Change of Business
they will procure that the TCN Group (taken as a whole) does
not change the nature of the business carried on by it in any
material respect from that carried on at the date of this
Agreement and that no TCN Entity ceases to carry on a business
where any such cessation would or is reasonably likely to have
a Material Adverse Effect;
(k) Memoranda and Articles of Association; Partnership Agreements
the Borrower will not, and will procure that no Charging
Subsidiary amends its Memorandum or Articles of Association in
any way which would restrict the ability of the Security
Trustee to exercise its rights under the Security Documents in
respect of the shares in such company and no Charging
Partnership will amend its partnership agreement in any way
which would restrict or impair the ability of the Security
Trustee to exercise its rights under the Pledge and Security
Agreements in respect of the partnership interests in such
partnership or otherwise as may be limited or prohibited under
the Pledge and Security Arrangements;
(l) Restricted Payments
they will procure that no member of the TCN Group makes any
Restricted Payment other than Permitted Payments;
(m) Services to Restricted Persons, TCI and US WEST
they will procure that no TCN Entity enters into any
contractual or other arrangements with a Restricted Person or
any of the Ultimate Shareholders or any of their Subsidiaries
or Associated Partnerships other than on bona fide arms length
commercial terms in the ordinary course of trading or
contractual arrangements between Telewest and the Borrower
regulating any Subordinated Debt which is the subject of a
Deed of Subordination;
(n) Liabilities of Restricted Persons
they will procure that no Restricted Person has outstanding
any liabilities to any TCN Entity which, when aggregated with
the liabilities of that Restricted Person to each other TCN
Entity and of each other Restricted Person to each TCN Entity,
exceeds (pound)100,000.
In this clause 11.1(n) "LIABILITIES" of a Restricted Person to
a TCN Entity shall mean liabilities incurred after the date
hereof and shall include, without limitation, (i) any
liabilities of that TCN Entity to a third party entered into
on behalf of that Restricted Person and (ii) any payments made
by that TCN Entity on behalf of that Restricted Person, in
either case where such liabilities or payments have not been
discharged or reimbursed but shall exclude any liabilities of
a Restricted Person to a TCN Entity which are a Permitted
Investment by that TCN Entity in that Restricted Person;
(o) No Carrying on Business in United States
None of the TCN Entities (i) shall employ any employees in the
State of Colorado or elsewhere in the United States and (ii)
shall carry on any business or maintain its principal places
of business, books and records and the property (other than
the interests in the Original Charging Partnerships) subject
to the Security Documents in the United States (except that,
in the case of any Charging Partnership formed in the State of
Colorado, if it maintains an office in the United States of
America, it maintains such an office in the State of
Colorado). Control and management of each of the TCN Entities
shall take place outside the United States of America; and
(p) Senior Loan Agreement
they will not permit:
(i) any increase in the commitments under the Senior Loan
Agreement; and
(ii) the granting of further security thereunder other than
in circumstances where second ranking security or, if
such security is not legally possible, such other
security as is legally possible over the same property
has been granted concurrently to the Security Trustee
for the obligations hereunder.
12 FINANCIAL COVENANTS
12.1 Covenants
Each TCN Entity jointly and severally undertakes with each of the
Banks, the Arrangers, the Security Trustee and the Agent:
(a) Minimum Consolidated TCN Group Net Operating Cash Flow
to ensure that from (and including) the date hereof to (but
excluding) the second consecutive Quarter Day (as shown in the
relevant Compliance Certificates) upon which Total TCN Group
Debt is equal to or less than five times Consolidated
Annualised TCN Group Net Operating Cash Flow (i) on each
Quarter Day as shown in the relevant Compliance Certificate
and (ii) on the last day of each financial year as shown in
the relevant Compliance Certificate, the amount of
Consolidated TCN Group Net Operating Cash Flow on any Quarter
Day set out in column (1) below for the preceding Six Month
Period shall not be less than the amount set out opposite that
Quarter Day in column (2) below:
(1) (2)
QUARTER DAY CONSOLIDATED TCN GROUP NET OPERATING
CASHFLOW
(POUND)000S
31 March 1998 40,000
30 June 1998 46,000
30 September 1998 54,000
31 December 1998 64,000
31 March 1999 71,000
30 June 1999 74,000
30 September 1999 84,000
31 December 1999 98,000
31 March 2000 110,000
30 June 2000 118,000
30 September 2000 129,000
31 December 2000 147,000
31 March 2001 180,800
30 June 2001 204,800
30 September 2001 213,500
31 December 2001 230,900
31 March 2002 260,700
30 June 2002 286,400
30 September 2002 295,200
31 December 2002 304,000
31 March 2003 325,400
30 June 2003 348,800
30 September 2003 359,600
31 December 2003 370,400
31 March 2004 391,100
30 June 2004 413,800
30 September 2004 426,600
31 December 2004 439,400
31 March 2005 451,500
30 June 2005 465,300
30 September 2005 479,700
31 December 2005 494,100
(b) Senior Tranche B Loan/Consolidated Annualised TCN Group Net
Operating Cash Flow
to ensure that (i) on each Quarter Day falling within the
period set out in column (1) below and (ii) on the last day of
each financial year falling within the period set out in
column (1) below the ratio of the Senior Tranche B Loan to
Consolidated Annualised TCN Group Net Operating Cash Flow
calculated by reference to the Six Month Period ending on such
day (as shown in the relevant Compliance Certificate) shall
not exceed the number set out against such period in column
(2) below:
(1) (2)
PERIOD RATIO
from the date of this Agreement to (and 6.5
including) 31 December 1998
from 1 January 1999 to (and including) 6.0
30 June 1999
from 1 July 1999 to (and including) 31 5.0
December 1999
from 1 January 2000 to (and including) 4.0
31 December 2000
thereafter 3.5
(c) Senior Facility Debt Interest Cover
to ensure that (i) on each Quarter Day falling within the
period set out in column (1) below and (ii) on the last day of
each financial year falling within the period set out in
column (1) below the ratio of Consolidated TCN Group Net
Operating Cash Flow in respect of the Six Month Period ending
on such day to Senior Facility Debt Interest Charges for such
Six Month Period shall not be less than the number set out
against such period in column (2) below:
(1) (2)
PERIOD RATIO
from 1 January 1998 to (and including) 31 1.50:1
December 1998
from 1 January 1999 to (and including) 31 2.00:1
December 1999
from 1 January 2000 to (and including) 30 2.50:1
June 2000
from 1 July 2000 to (and including) 31 3.00:1
December 2000
from 1 January 2001 onwards 4.00:1
(d) TCN Group Debt Interest Cover
to ensure that (i) on each Quarter Day falling within the
period set out in column (1) below and (ii) on the last day of
each financial year falling within the period set out in
column (1) below the ratio of Consolidated TCN Group Net
Operating Cash Flow in respect of the Six Month Period ending
on such day to Total TCN Group Cash Paying Debt Interest
Charges during such Six Month Period shall not be less than
the number set out against such period in column (2) below:
(1) (2)
PERIOD RATIO
from 1 January 1998 to (and including) 30 1.00 : 1
June 1998
from 1 July 1998 to (and including) 31 1.20 : 1
December 1998
from 1 January 1999 to (and including) 30 1.25 : 1
June 1999
from 1 July 1999 to (and including) 31 1.35 : 1
December 1999
from 1 January 2000 to (and including) 31 1.50:1
March 2000
from 1 April 2000 to (and including) 30 1.75 : 1
September 2001
from 1 October 2001 to (and including) 31 2.00: 1
March 2002
from 1 April 2002 to (and including) 30 2.25 : 1
June 2002
from 1 July 2002 to (and including) 31 2.50 : 1
December 2002
from 1 January 2003 to (and including) 31 2.75 : 1
March 2003
from 1 April 2003 onwards 3.00 : 1
(e) Telewest Group Debt Interest Cover
to ensure that (i) on each Quarter Day falling within the
period set out in column (1) below and (ii) on the last day of
each financial year falling within the period set out in
column (1) below the ratio of Consolidated Telewest Group Net
Operating Cash Flow in respect of the Six Month Period ending
on such day to Total Telewest Group Cash Paying Debt Interest
Charges during such Six Month Period shall not be less than
the number set out against such period in column (2) below:
(1) (2)
PERIOD RATIO
from 1 January 1998 to (and including) 31 1.00 : 1
December 1998
from 1 January 1999 to (and including) 31 1.25 : 1
December 1999
from 1 January 2000 onwards 1.50 : 1
(f) Pro-Forma Total Telewest Group Debt Service Cover
to ensure that (i) on each Quarter Day falling within the
period set out in column (1) below and (ii) on the last day of
each financial year falling within the period set out in
column (1) below, the ratio of Consolidated Annualised
Telewest Group Net Operating Cash Flow calculated by reference
to the Six Month Period ending on such day to Proforma Total
Telewest Group Debt Service (as shown in the relevant
Compliance Certificate) shall not be less than the number set
against such period in column (2) below:
(1) (2)
PERIOD RATIO
from 1 January 1999 up to (and including) 1.00 : 1
31 December 2001
from 1 January 2002 to (and including) 31 1.20 : 1
December 2002
from 1 January 2003 to (and including) 31 1.40 : 1
December 2003
from 1 January 2004 onwards 1.50 : 1
(g) Pro-forma Total TCN Group Debt Service Cover
to ensure that (i) on each Quarter Day falling within the
period set out in column (1) below and (ii) on the last day of
each financial year falling within the period set out in
column (1) below, the ratio of Consolidated Annualised TCN
Group Net Operating Cash Flow calculated by reference to the
Six Month Period ending on such day to Proforma Total TCN
Group Debt Service (as shown in the relevant Compliance
Certificate) shall not be less than the number set out against
such period in column (2) below:
(1) (2)
PERIOD RATIO
from 1 April 2000 up to (and including) 31 1.00 : 1
December 2001
from 1 January 2002 to (and including) 31 1.20 : 1
December 2002
from 1 January 2003 to (and including) 31 1.40 : 1
December 2003
from 1 January 2004 onwards 1.50 : 1
(h) Total TCN Secured Debt
to ensure that (i) on each Quarter Date falling within the
period set out in column (1) below and (ii) on the last day of
each financial year falling within the period set out in
column (1) below the ratio of Total TCN Secured Debt to
Consolidated Annualised TCN Group Net Operating Cash Flow
calculated by reference to the Six Month Period ending on such
day shall not exceed the number set out against such period in
column (2) below:
(1) (2)
PERIOD RATIO
from 1 July 1999 to (and including) 31 6.0
December 1999
from 1 January 2000 to (and including) 31 5.0
December 2000
from 1 January 2001 to (and including) 30 4.5
June 2001
from 1 July 2001 to (and including) 31 4.0
December 2001
thereafter 3.5
12.2 Auditors certificate
If at any time the Majority Banks do not consider (acting reasonably)
that any figure set out in any Compliance Certificate issued by any
Authorised Officer is correct, they shall be entitled within 30 days of
the date of the delivery of such Compliance Certificate to the Agent
pursuant to clause 10.1 to call for a certificate from the Borrower's
auditors as to such figure. For such purposes the Borrower's auditors
shall act as independent experts and not as arbiters and every such
certificate shall be addressed to the Agent (on behalf of the Banks)
and be at the expense of the Borrower. The Majority Banks may only call
for one such certificate in any calendar year. If the Majority Banks
call for such a certificate all calculations under this Agreement by
reference to the relevant figure shall (i) until the Borrower's
auditors deliver the relevant certificate under this clause 12.2 be
made by reference to the figure set out in the relevant Compliance
Certificate delivered to the Agent under this Agreement and (ii)
following the delivery by the Borrower's auditors of a certificate
under this clause 12.2 be made by reference to such certificate and the
Borrower undertakes forthwith to take all action, including, without
limitation, the prepayment of all or part of the Loan so as to procure
that all action taken on the basis of the relevant Compliance
Certificate which on the basis of such auditors certificate would not
have been permitted is reversed.
13 EVENTS OF DEFAULT
13.1 Events of Default
Each of the following events and circumstances is an Event of Default
(whether or not caused by any reason outside the control of any TCN
Entity):
(a) Non-payment
(i) any principal amount due and payable under this Agreement
is not paid on the due date or (ii) an amount of interest due
and payable under this Agreement is not paid within 3 Banking
Days of the due date or (iii) any other sum due and payable
under this Agreement is not paid within 5 Banking Days of the
due date, and, in each such case, in the manner stipulated in
this Agreement; or
(b) Breach of certain obligations
(i) any TCN Entity commits any breach of the undertakings
contained in clauses 10.1(a), (c)(i)(A) and (B), (e),
(k) and (cc), 11.1(a), (b), (c), (f), (g), (h), (i),
(j), (k) and (l), and 12.1; or
(ii) any TCN Entity commits any breach of the undertakings
contained in clauses 11.1(d) and (e) and, in respect of
any such breach where the principal amount of the
relevant Borrowed Money or guarantee does not exceed
(pound)1,000,000, such breach is not remedied within
five Banking Days of such breach; or
(c) Breach of other obligations
any TCN Entity or Telewest commits any breach of or omits to
observe any of the obligations or undertakings expressed to be
assumed by them under this Agreement (other than failure to
pay any sum when due or any breach of the undertakings
referred to in (b)) above or any of the Security Documents
and, in respect of any such breach or omission which in the
opinion of the Majority Banks is capable of remedy, such
remedial action as the Majority Banks shall require is not
carried out within 28 days of the Agent notifying the Borrower
of such default and of such remedial action; or
(d) Misrepresentation
any representation or warranty made or deemed to be made or
repeated by or in respect of any TCN Entity or Telewest in or
pursuant to this Agreement or the Security Documents or in any
notice, certificate or statement referred to in or delivered
under this Agreement or the Security Documents is or proves to
have been incorrect or misleading in any material respect on
the date on which it was made or deemed to be made or
repeated; or
(e) Challenge to security
any Security Document is not or ceases to be effective (unless
by reason of the Banks' or the Security Trustee's failure to
file any required UCC Statements in the United States) or any
TCN Entity or Telewest shall in any way challenge, or any
proceedings shall in any way be brought to challenge (and in
the case of a proceeding brought by someone other than any TCN
Entity or Telewest shall continue unstayed for 30 days) the
prior status of the charges created by the Security Documents
or the validity or enforceability of the Security Documents
Provided that the creation or existence of the Permitted
Encumbrances shall not be deemed to be a challenge to the
prior status of such charges for the purposes of this clause
13.1(e); or
(f) Cross-default
(i) Borrowed Money of any member of the TCN Group or Telewest
(which, in aggregate and including for these purposes any
Borrowed Money referred to in clause 13.1(f)(ii) below,
exceeds (pound)7,500,000) is not paid when due (or within any
applicable grace period expressly contained in the agreement
relating to such Borrowed Money in its original terms) or
becomes due or (ii) any creditor of any member of the TCN
Group, or Telewest becomes entitled to declare any such
Borrowed Money in excess of (pound)7,500,000 (in aggregate)
due and payable prior to the date when it would otherwise have
become due; or
(g) Hedging Default
an event entitling the relevant counterparty to terminate any
arrangements in relation to interest rate hedging permitted
pursuant to clause 11.1(i) or any other interest rate or
currency swap or other hedging arrangements entered into by
any member of the TCN Group occurs and the aggregate notional
principal amounts of the swaps or other hedging arrangements
entitled to be so terminated exceeds (pound)25,000,000; or
(h) Appointment of receivers and managers
(i) any administrative or other receiver is appointed of any
member of the TCN Group (other than an Immaterial Group
Entity), or Telewest or any part of their respective assets
and/or undertakings or (ii) any other legal proceedings are
taken which are not irrevocably discharged or withdrawn within
28 days of the commencement thereof to enforce any Encumbrance
over all or any part of the assets of any member of the TCN
Group or Telewest; or
(i) Insolvency
any member of the TCN Group (other than an Immaterial Group
Entity) or Telewest is deemed unable to pay its debts within
the meaning of sections 123(1)(e) or (2) of the Insolvency Xxx
0000 or any member of the TCN Group, (other than an Immaterial
Group Entity) or Telewest otherwise becomes insolvent or stops
or suspends making payments (whether of principal or interest)
with respect to all or any class of its debts or is unable or
announces an intention so to do or admits inability to pay its
debts as they fall due; or
(j) Legal process
any judgment or order made against any member of the TCN Group
(other than an Immaterial Group Entity) or Telewest is not
stayed or complied with within 28 days or a creditor attaches
or takes possession of, or a distress, execution,
sequestration, diligence (other than on the dependence of an
action) or other process is levied or enforced upon or sued
out against, any material part of the undertaking, assets,
rights or revenues of any member of the TCN Group (other than
an Immaterial Group Entity) or Telewest and is not discharged
within 28 days; or
(k) Compositions
any steps are taken or negotiations commenced, by any member
of the TCN Group (other than an Immaterial Group Entity) or
Telewest or by their respective creditors with a view to
proposing any kind of composition, compromise or arrangement
involving such company and any group or class of its creditors
generally; or
(l) Winding-up
(i) any member of the TCN Group (other than an Immaterial
Group Entity) or Telewest takes any action or any legal
proceedings are started (not being action or proceedings which
can be demonstrated to the satisfaction of the Agent by
providing an opinion of a leading firm of London solicitors to
that effect, is frivolous, vexatious or an abuse of the
process of the court or relates to a claim to which such
person has a good defence and which is being vigorously
contested by such body) for any member of the TCN Group (other
than an Immaterial Group Entity) or Telewest to be adjudicated
or found bankrupt or insolvent (other than for the purpose of
an amalgamation or reconstruction previously approved in
writing by the Agent acting on the instructions of the
Majority Banks) or (ii) an order is made or resolution passed
for the winding-up of any other member of the TCN Group (other
than an Immaterial Group Entity) or Telewest or a notice is
issued convening a meeting for the purpose of passing any such
resolution; or
(m) Administration
any petition is presented or other step is taken for the
purpose of the appointment of an administrator of any member
of the TCN Group (other than an Immaterial Group Entity) or
Telewest or an administration order is made in relation to any
member of the TCN Group (other than an Immaterial Group
Entity) or Telewest; or
(n) Analogous proceedings
there occurs, in relation to any member of the TCN Group
(other than an Immaterial Group Entity) or Telewest in any
country or territory in which any of them carries on business
or to the jurisdiction of which courts any part of their
respective assets is subject, any event which, in the
reasonable opinion of the Agent, appears in that country or
territory to correspond with, or have an effect equivalent or
similar to, any of those mentioned in clauses 13.1(h) to (m)
inclusive or any member of the TCN Group or Telewest (subject
always to equivalent grace periods and de minimis amounts as
are referred to in such clauses being exceeded) otherwise
becomes subject, in any such country or territory, to the
operation of any law relating to insolvency, bankruptcy or
liquidation; or
(o) Change of control of Telewest
at any time prior to the second consecutive Quarter Day in
respect of which the relevant Compliance Certificates
demonstrate that each of the ratios of (A) Total TCN Group
Debt to Consolidated Annualised TCN Group Net Operating Cash
Flow and (B) Total Telewest Group Debt to Consolidated
Annualised Telewest Group Net Operating Cash Flow is less than
or equal to 3.0 times, either:
(i) TCI and US WEST (directly or indirectly) cease to hold
at least (1) if TCI or US WEST have at any time disposed
of any of their voting or economic interest in Telewest
Group to any third party (not being TCI, US WEST or any
entity controlled, directly or indirectly, by either of
them or by both of them together) 40 per cent. or (2)
otherwise, 30 per cent. of the voting and economic
interest in Telewest; or
(ii) any person or persons acting together in concert (other
than, for these purposes, TCI, US WEST, SBC and/or Cox
and/or any entities controlled, directly or indirectly,
by any of them or by any two or more of them together or
which controls any one or more of them) acquire either
(1) a greater voting or economic interest in Telewest
than TCI and US WEST (together, and directly or
indirectly) or (2) 40 per cent. of the voting and
economic interest in Telewest.
For these purposes persons "acting together in concert" means
persons who pursuant to an agreement or understanding (whether
formal or informal) actively co-operate together with a view
to acquiring all or any part of the voting and economic
interest in Telewest and those persons who are presumed to be
acting in concert for the purposes of the City Code on
Take-overs and Mergers shall also be deemed to be acting in
concert for these purposes; or
(p) Change of control of the Borrower or any Charging Subsidiary or
Charging Partnerships
(i) any Charging Subsidiary (other than an Immaterial Group
Entity and Telewest Communications (London South)
Limited) ceases to be a wholly owned and controlled
Subsidiary of the Borrower or any Charging Partnership
ceases to have as its sole partners members of the TCN
Group; or
(ii) the Borrower ceases to be a wholly owned Subsidiary of
Telewest; or
(q) Principal Agreements
(i) any Principal Agreement is terminated, suspended,
revoked or cancelled or otherwise ceases to be in full
force and effect unless services of a similar nature to
those provided pursuant to such Principal Agreement are
at all times provided to the TCN Group on similar
commercial terms or on terms no less beneficial to the
relevant member of the TCN Group save where any such
services are provided on more onerous terms to the
relevant member of the TCN Group due to the mandatory
requirements of OFTEL, the Office of Fair Trading, the
Department of Trade and Industry, the European
Commission or any other regulatory body and any such
termination, suspension, revocation, cancellation or
cessation would have a Material Financial Adverse
Effect; or
(ii) any alteration or variation is made to any term of any
Principal Agreement which would have a Material
Financial Adverse Effect; or
(iii) any party breaches any term of or repudiates any of its
obligations under any of the Principal Agreements where
such breach or repudiation would have a Material
Financial Adverse Effect; or
(r) Unlawfulness
it becomes unlawful at any time for the Borrower, any TCN
Entity or Telewest to perform any of their respective material
(in the opinion of the Majority Banks) obligations under this
Agreement or the Security Documents or any of the material (in
the opinion of the Majority Banks) obligations of any TCN
Entity or Telewest under this Agreement and the Security
Documents becomes unenforceable in any way or there ceases to
be a second priority charge over the relevant property or
assets of the Borrower, any TCN Entity or Telewest as intended
and created by the Security Documents save for Permitted
Encumbrances; or
(s) Environmental matters
as a result of any Environmental Law: (a) the Agent, any of
the Arrangers, the Security Trustee or any of the Banks
becomes, in the opinion of the Agent, subject to a material
obligation (actual or contingent, in the case of any
contingent obligation, being one which, at the relevant time,
would be likely to arise) in relation to any Relevant
Substance on or from any property, owned, occupied or leased
by any member of the TCN Group or Telewest; or (b) the rights
and claims of the Agent, any of the Arrangers, the Security
Trustee, or any of the Banks under this Agreement or any of
the Security Documents become subordinated to the claims and
rights of any competent agency of the United Kingdom or the
European Community; or
(t) Telecommunications and Cable Laws
any TCN Entity fails to comply with any term or condition of
any Telecommunications and Cable Law where such non-compliance
would or is reasonably likely to have a Material Adverse
Effect, in the opinion of the Agent,; or
(u) Repudiation
any TCN Entity or Telewest repudiates this Agreement or any
Security Document to which it is a party or does or causes or
permits to be done any act or thing evidencing an intention to
repudiate this Agreement or any such Security Document; or
(v) Seizure
all or a material part of the undertakings, assets, rights or
revenues of or shares or other ownership interests in the TCN
Group (taken as a whole) or Telewest are seized, nationalised,
expropriated or compulsorily acquired by or under the
authority of any government;
(w) Material events
any other event occurs or circumstances arise which in the
opinion of the Agent acting on the instructions of the
Majority Banks is likely materially adversely to affect the
ability of the TCN Group (taken as a whole) to fulfil all or
any of its obligations under this Agreement or any Security
Document.
13.2 Acceleration
(A) If at any time or during any period, (i) Telewest or any member
of the TCN Group (other than an Immaterial Group Entity) shall
reside or have a domicile, a place of business or a property in
the United States (to the extent that such residence, domicile,
place of business or property is sufficient for a person to
become a "debtor" under section 109(a) of the U.S. Federal
Bankruptcy Code) and (ii) an Event of Default specified in
clauses 13.1(h) to (n) shall have occurred and be continuing in
respect of Telewest or any such member of the TCN Group, as
applicable, in furtherance of which Event of Default an order
for relief with respect to Telewest or such member of the TCN
Group, as applicable, shall actually be (or shall be deemed to
have been) entered under the U.S. Federal Bankruptcy Code, then
the obligation of each Bank to make its Commitment available
shall be automatically terminated and the Loan and all interest
and commitment commission accrued and all other sums payable
under this Agreement immediately shall become due and payable.
(B) At any time after the happening of any Event of Default (other
than in the circumstances set out in sub-clause (A) above), so
long as the same is continuing and so long as either (1) the
agent under the Senior Loan Agreement has accelerated the Senior
Loan under clause 13.2 of the Senior Loan Agreement or (2) 365
days have elapsed since the occurrence of the Event of Default,
the Agent may, and if so requested by the Majority Banks shall,
without prejudice to any other rights of the Banks, by notice to
the Borrower declare that:
(a) the obligation of each Bank to make its Commitment
available shall be terminated, whereupon the
Commitments shall be reduced to zero forthwith;
and/or
(b) the Loan and all interest and commitment commission
accrued and all other sums payable under this
Agreement have become due and payable, whereupon the
same shall, immediately, or on demand or otherwise in
accordance with the terms of such notice, become due
and payable; and/or
(c) it and/or the Security Trustee shall exercise any of
the rights granted to the Agent, the Security Trustee
or the Banks under the Security Documents.
13.3 On demand basis
If, pursuant to clause 13.2(B)(b), the Agent declares the Loan to be
due and payable on demand then, at any time thereafter, the Agent may
(and, if so instructed by the Majority Banks, shall) by written notice
to the Borrower: (a) call for repayment of the Loan on such date as may
be specified in such notice whereupon the Loan shall become due and
payable on the date so specified together with all interest and
commitment commission accrued and all other sums payable under this
Agreement or (b) withdraw such declaration with effect from the date
specified in such notice.
14 INDEMNITIES
14.1 Miscellaneous Indemnities
The Borrower shall on demand indemnify each Bank, each Arranger, the
Security Trustee and the Agent, without prejudice to any of their other
rights under this Agreement, against any loss (including in the case of
(a) or (b) below loss of Margin) or expense which such Bank, such
Arranger, the Security Trustee or the Agent shall certify as sustained
or incurred by it as a consequence of:
(a) any default in payment by the Borrower of any sum under this
Agreement when due;
(b) the occurrence of any other Event of Default;
(c) any repayment or prepayment of the Loan or part thereof being
made under clause 6 or 15.1 otherwise than on the last day of an
Interest Period relating to the part of the Loan repaid or
prepaid; or
(d) any Advance not being made for any reason (excluding any default
by the Agent or any Bank) after a Drawdown Notice has been
given,
including, but not limited to, any loss or expense sustained or
incurred by such Bank in maintaining or funding its Contribution or any
part thereof or in liquidating or re-employing deposits from third
parties acquired or contracted for to fund its Contribution or any part
thereof or any other amount owing to such Bank.
14.2 Currency Indemnity
If any sum due from the Borrower under this Agreement or any order or
judgment given or made in relation hereto 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 Borrower, (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, the Borrower agrees to indemnify
and hold harmless the Agent, each Arranger, the Security Trustee, and
each Bank from and against any loss suffered as a result of any
difference between (i) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (ii) the rate or rates of exchange at which the Agent,
such Arranger, the Security Trustee or such Bank may in the ordinary
course of business purchase the first currency with the second currency
upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgment, claim or proof. Any amount due from the
Borrower under this clause 14.2 shall be due as a separate debt and
shall not be affected by judgment being obtained for any other sums due
under or in respect of this Agreement and the term "rate of exchange"
includes any premium and costs of exchange payable in connection with
the purchase of the first currency with the second currency.
14.3 Environmental Indemnity
The Borrower agrees to indemnify on demand each Bank, each Arranger,
the Security Trustee and the Agent, and their respective officers,
employees, agents and delegates (together the "INDEMNIFIED PARTIES") in
respect of which each Bank, each Arranger, the Security Trustee and the
Agent holds this indemnity on trust, without prejudice to any of their
other rights under this Agreement, against any loss, liability, action,
claim, demand, cost, expense, fine or other outgoing whatsoever whether
in contract, tort, delict or otherwise and whether arising at common
law, in equity or by statute which the relevant Indemnified Party shall
certify as sustained or incurred by it at any time as a consequence of,
or relating to, or arising directly or indirectly out of, an
Environmental Claims made or asserted against such Indemnified Party
which would not have arisen if this Agreement had not been executed and
which was not caused by the negligence or wilful default of the
relevant Indemnified Party.
15 UNLAWFULNESS AND INCREASED COSTS; MITIGATION
15.1 Unlawfulness
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Advances or to maintain its Commitment or fund or
maintain its Contribution, such Bank shall promptly, through the Agent,
notify the Borrower whereupon (a) such Bank's Commitment shall be
reduced to zero and (b) the Borrower shall be obliged to prepay the
Contribution of such Bank on the earlier of (i) the date falling 30
days after the date of receipt by the Borrower of the relevant notice
pursuant to this clause or (ii) the latest date permitted by the
relevant law or regulation. Without prejudice to the reduction of such
Bank's Commitment to zero or the obligations of the Borrower to make
such repayment, the Borrower, the Agent and such Bank shall negotiate
for a period not exceeding 14 days with a view to such Bank making
available its Commitment and/or funding or maintaining its Contribution
in whole or in part in a manner which is not unlawful.
15.2 Increased Costs
If the result of any change in, or in the interpretation or application
of, or the introduction of, any law or regulation, request or
requirement (whether or not having the force of law, but, if not having
the force of law, with which the relevant Bank or, as the case may be,
its holding company habitually complies) including, without limitation,
those relating to Taxation, capital adequacy, liquidity, reserve
assets, cash ratio deposits and special deposits is to:
(a) subject any Bank to Taxes or change the basis of Taxation of any
Bank with respect to any payment under this Agreement (other
than Taxes or Taxation on the overall net income, profits or
gains of such Bank imposed in the jurisdiction in which its
principal or lending office under this Agreement is located and
other than Taxes currently payable by such Bank on amounts
received by it under this Agreement but only to the extent so
payable at the date hereof); and/or
(b) increase the cost to, or impose an additional cost on, any Bank
or its holding company in making or keeping available all or
part of such Bank's Commitment or maintaining or funding such
Bank's Contribution; and/or
(c) reduce the amount payable or the effective return to any Bank
under this Agreement; and/or
(d) reduce any Bank's or its holding company's rate of return on its
overall capital by reason of a change in the manner in which it
is required to allocate capital resources to such Bank's
obligations under this Agreement; and/or
(e) require any Bank or its holding company to make any additional
payment or forego (to a greater extent than at the date hereof)
a return calculated by reference to or on any amount received or
receivable by such Bank under this Agreement; and/or
(f) require any Bank or its holding company to incur or sustain a
loss (including a loss of future potential profits) additional
to that incurred or sustained at the date hereof by reason of
being obliged to deduct a greater part of such Bank's Commitment
or Contribution from its capital for regulatory purposes, than
is required to be deducted at the date hereof
then and in each such case (but subject to clauses 15.3 and 15.4):
(i) such Bank shall notify the Borrower through the Agent in
writing of such event promptly upon its becoming aware
of the same; and
(ii) the Borrower agrees to pay on demand, made at any time,
whether or not such Bank's Contribution has been repaid,
to the Agent for the account of such Bank the amount
which such Bank specifies (in a certificate setting
forth the basis of the computation of such amount but
not including any matters which such Bank or its holding
company regards as confidential) is required to
compensate such Bank and/or (if and to the extent that,
such holding company has passed the cost of the same on
to such Bank) its holding company for such liability to
Taxes, increased or additional cost, reduction, payment
or foregone return.
15.3 Exceptions
Nothing in this clause shall entitle any Bank to compensation for any
such increased cost, reduction, payment or foregone return (a) to the
extent that the same is taken into account in calculating the
Additional Cost or (b) to the extent that the same is the subject of an
additional payment under clause 8.7.
15.4 Further Exception
Nothing in this clause shall entitle any Bank to compensation for any
such increased cost, reduction, payment or foregone return which arises
as a consequence of any law or regulation implementing the proposals as
currently drafted for international convergence of capital measurement
and capital standards published by the Basle Committee on Banking
Regulations and Supervisory Practices in July 1988.
15.5 Mitigation
If, in respect of any Bank, circumstances arise which would, or would
upon the giving of notice, result in:
(a) the Borrower being required to make an increased payment to such
Bank pursuant to clause 8.7;
(b) the reduction of such Bank's Commitment to zero or the Borrower
being required to prepay such Bank's Contribution pursuant to
clause 15.1; or
(c) the Borrower being required to make a payment to such Bank to
compensate such Bank for an increased cost, reduction, payment
or foregone return pursuant to clause 15.2(ii),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under clauses 8 and 15, such Bank shall, in
consultation with the Agent, endeavour to take such reasonable steps as
may be open to it to mitigate or remove such circumstances including
(without limitation) the transfer of its rights and obligations under
this Agreement to another bank or financial institution acceptable to
the Borrower or a change of lending office of such Bank to one
acceptable to the Borrower unless, in either case, to do so might (in
the opinion of such Bank) be prejudicial to such Bank or be in conflict
with such Bank's general banking policies or involve such Bank in
expense or an increased administration burden.
16 SET-OFF AND PRO RATA PAYMENTS
16.1 Set-off
The Borrower authorises each Bank to apply any credit balance to which
the Borrower is then entitled on any account of the Borrower with such
Bank at any of its branches in or towards satisfaction of any sum then
due and payable from the Borrower to such Bank under this Agreement.
For this purpose each Bank is authorised to purchase with the moneys
standing to the credit of such account such other currencies as may be
necessary to effect such application. No Bank shall be obliged to
exercise any right given to it by this clause. Each Bank shall notify
the Agent and the Borrower forthwith upon the exercise or purported
exercise of any right of set-off giving full details in relation
thereto and the Agent shall inform the other Banks.
16.2 Pro Rata Payments
(a) If at any time any Bank (the "RECOVERING BANK") receives or
recovers any amount owing to it by the Borrower under this
Agreement by direct payment, set-off or in any manner (but
excluding any recoveries by virtue of any cash management or
interest netting arrangements operated by any Bank in its
capacity as a provider of day to day banking services to the TCN
Group to the extent that such arrangements are permitted by this
Agreement) other than by payment through the Agent pursuant to
clause 8.1 or 8.11 (not being a payment received from an
Assignee, a Substitute or a Sub-Participant), the Recovering
Bank shall, within two Banking Days of such receipt or recovery
(a "RELEVANT RECEIPT") notify the Agent of the amount of the
Relevant Receipt. If the Relevant Receipt exceeds the amount
which the Recovering Bank would have received if the Relevant
Receipt had been received by the Agent and distributed pursuant
to clause 8.1 or 8.11 (as the case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount equal
to the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the
Borrower and shall distribute the same to the Banks
(other than the Recovering Bank) in accordance with
clause 8.11, and
(iii) as between the Borrower and the Recovering Bank the
excess amount so re-distributed shall be treated as not
having been paid but the obligations of the Borrower to
the other Banks shall, to the extent of the amounts so
re-distributed to them, be treated as discharged.
(b) If any part of the Relevant Receipt subsequently has to be
wholly or partly refunded by the Recovering Bank (whether to a
liquidator or otherwise) each Bank to which any part of such
Relevant Receipt was so re-distributed shall on request from the
Recovering Bank repay to the Recovering Bank such Bank's pro
rata share of the amount which has to be refunded by the
Recovering Bank.
(c) Each Bank shall on request supply to the Agent such information
as the Agent may from time to time request for the purpose of
this clause 16.2.
(d) Notwithstanding the foregoing provisions of this clause 16.2 no
Recovering Bank shall be obliged to share any Relevant Receipt
which it receives or recovers pursuant to legal proceedings
taken by it to recover any sums owing to it under this Agreement
with any other party which has a legal right to, but does not,
either join in such proceedings or commence and diligently
pursue separate proceedings to enforce its rights in the same or
another court (unless the proceedings instituted by the
Recovering Bank are instituted by it without prior notice having
been given to such party through the Agent).
16.3 No Release
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 16.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 16.2.
16.4 No Charge
The provisions of this clause 16 shall not, and shall not be construed
so as to, constitute a charge by a Bank over all or any part of a sum
received or recovered by it in the circumstances mentioned in clause
16.2.
17 ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES
17.1 Benefit and Burden
This Agreement shall be binding upon, and enure for the benefit of, the
Banks, the Arrangers, the Agent, the Security Trustee, the TCN Entities
and their respective successors.
17.2 No Assignment by Borrower
None of the TCN Entities may assign or transfer any of its rights or
obligations under this Agreement.
17.3 Assignment by Banks
Each Bank (an "ASSIGNOR BANK") may assign all or any part (being at
least (pound)2,000,000 or, less than (pound)2,000,000 if the Bank is a
bank under the Senior Loan Agreement and the amount represents its
entire Commitment) of its rights in respect of its Contribution to any
Qualifying Bank (an "ASSIGNEE") with the prior written consent of the
Borrower (which shall not be unreasonably withheld or delayed) provided
that no such consent is necessary if (i) such Assignee is a wholly
owned Subsidiary of such Assignor Bank or a person of whom such
Assignor Bank is a wholly owned Subsidiary or (ii) a bank under the
Senior Loan Agreement. No Bank may assign all or any part of its rights
in respect of its Contribution to any person which is not a Qualifying
Bank.
17.4 Substitution
Each Bank (a "TRANSFEROR BANK") may transfer, by way of novation, all
or any part (being at least (pound)2,000,000 or, less than
(pound)2,000,000 if the Bank is a bank under the Senior Loan Agreement
and the amount represents its entire Commitment) of its rights,
benefits and/or obligations under this Agreement and the Security Trust
Deed to any Qualifying Bank (a "SUBSTITUTE") with the prior written
consent of the Borrower (which shall not be unreasonably withheld or
delayed) provided that no such consent is necessary if such Substitute
is a wholly-owned Subsidiary (being a Qualifying Bank) of such
Transferor Bank or a person (being a Qualifying Bank) of whom such
Transferor Bank is a wholly-owned Subsidiary if any such transfer would
not give rise to any obligation to make any payment on the part of the
Borrower which it would not have had to make at such time but for such
transfer. Any such novation shall be effected upon five Banking Days'
prior notice by delivery to the Agent of a duly completed Substitution
Certificate duly executed by such Bank, the Substitute and the Agent
(for itself, the Arrangers, the Security Trustee, the Borrower, the
Charging Subsidiaries and the other Banks). On the effective date
specified in a Substitution Certificate so executed and delivered, to
the extent that they are expressed in such Substitution Certificate to
be the subject of the novation effected pursuant to this clause 17.4:
(a) the existing parties to this Agreement and the Bank party to the
relevant Substitution Certificate shall be released from their
respective obligations towards one another under this Agreement
and the Security Trust Deed ("DISCHARGED OBLIGATIONS") and their
respective rights against one another under this Agreement
("DISCHARGED RIGHTS") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the Security
Trust Deed (other than the Bank party to such Substitution
Certificate) shall assume obligations towards each other which
differ from the discharged obligations only insofar as they are
owed to or assumed by such Substitute instead of to or by such
Bank;
(c) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the Security
Trust Deed (other than the Bank party to such Substitution
Certificate) shall acquire rights against each other which
differ from the discharged rights only insofar as they are
exercisable by or against such Substitute instead of by or
against such Bank
and, on the date upon which such novation takes effect the Substitute
shall pay to the Agent for its own account a fee of (pound)500. The
Agent shall promptly notify the Borrower of the receipt by it of any
Substitution Certificate and deliver a copy thereof to the Borrower.
17.5 Reliance on Substitution Certificate
The Agent, the Banks, the Arrangers, the Security Trustee and each TCN
Entity shall be fully entitled to rely on any Substitution Certificate
delivered to the Agent in accordance with the foregoing provisions of
this clause 17 which is complete and regular on its face as regards its
contents and purportedly signed on behalf of the relevant Bank and the
Substitute and none of the Agent, the Banks, the Arrangers, the
Security Trustee or each TCN Entity shall have any liability or
responsibility to any party as a consequence of placing reliance on and
acting in accordance with any such Substitute Certificate if it proves
to be the case that the same was not authentic or duly authorised.
17.6 Authorisation of Agent
Each TCN Entity, each Arranger, the Security Trustee and each Bank
irrevocably authorises the Agent to counter-sign each Substitution
Certificate on its behalf without any further consent of, or
consultation with such TCN Entity, such Arranger, the Security Trustee
or such Bank except, in the case of the Borrower, the consent required
pursuant to clause 17.3 or 17.4.
17.7 Construction of certain references
If any Bank assigns all or any part of its rights or novates all or any
part of its rights, benefits and obligations as provided in clause 17.3
or 17.4 all relevant references in this Agreement to such Bank shall
thereafter be construed as a reference to such Bank and/or its Assignee
or Substitute (as the case may be) to the extent of their respective
interests.
17.8 Lending offices
Each Bank shall lend through its office at the address specified in
Schedule 1 or, as the case may be, in any relevant Substitution
Certificate or through any other office located in the United Kingdom
of such Bank selected from time to time by such Bank through which such
Bank wishes to lend for the purposes of this Agreement. If the office
through which a Bank is lending is changed pursuant to this clause
17.8, such Bank shall notify the Agent promptly of such change.
17.9 Disclosure of information
Save as permitted pursuant to the terms of this Agreement or the
relevant Security Document any information furnished pursuant to this
Agreement or any Security Document to which the Borrower or any other
TCN Entity (as the case may be) is a party to the Agent, the Arranger,
the Security Trustee or the Banks shall be kept confidential by the
recipient and the Agent, the Arrangers, the Security Trustee and the
Banks, save that the provisions of this clause 17.9 shall not apply:
(a) to any information already known to the recipient;
(b) to any information subsequently received by the recipient which
it would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge
otherwise than as a result of a breach by any person of this
clause 17.9 or of any confidentiality undertaking entered into
pursuant to clause 17.11; and
(d) to any extent that the recipient is required to disclose the
same pursuant to any law or order of any court or order or
request of any governmental agency with whose instructions the
recipient habitually complies.
17.10 Sub-participation
No Bank may enter into any sub-participation arrangements in relation
to all or any part of its rights and obligations under this Agreement
with any person without the consent of the Borrower and the Agent.
17.11 Confidentiality undertaking
Any Bank, the Security Trustee, any Arranger or the Agent may, having
obtained the prior consent of the Borrower (such consent not to be
unreasonably withheld) disclose to a prospective Assignee or Substitute
or to any other person who may propose entering into contractual
relations with such Bank, the Security Trustee, any Arranger or the
Agent in relation to this Agreement or any Security Document any
information referred to in clause 17.9 subject to the prospective
Assignee or Substitute or other person first entering into a
confidentiality undertaking with the Borrower and the other TCN
Entities in substantially the same terms as clause 17.9 and this clause
17.11.
18 ARRANGERS, AGENT AND REFERENCE BANKS
18.1 Appointment of Agent
Each Bank irrevocably appoints the Agent as its agent for the purposes
of this Agreement and any relevant Security Document and authorises the
Agent (whether or not by or through employees or agents) to take such
action on such Bank's behalf and to exercise such rights, remedies,
powers and discretions as are specifically delegated to the Agent by
this Agreement and/or any relevant Security Document, together with
such powers and discretions as are reasonably incidental thereto. None
of the Agent, the Arrangers or the Security Trustee shall, however,
have any duties, obligations or liabilities to the Banks beyond those
expressly stated in this Agreement and/or the Security Documents.
18.2 Amendments to this Agreement
(a) Subject to clause 18.2(b) and 18.2(c) and save where otherwise
provided in this Agreement, the Agent may, with the consent of
the Majority Banks (or if and to the extent expressly authorised
by the other provision of this Agreement), amend, modify or
otherwise vary or waive breaches of, or defaults under, or
otherwise excuse performance of, any provision of this Agreement
or any other Security Document entered into in favour of the
Agent. Any such action so authorised and effected by the Agent
shall be promptly notified to the Banks by the Agent and shall
be binding on all of the Banks.
(b) Except with the prior written consent of all of the Banks, the
Agent shall not have authority on behalf of the Banks (A) to
agree with any TCN Entity any amendment to this Agreement or to
grant waivers in respect of breaches of or defaults under this
Agreement or to excuse performance of this Agreement which would
(i) reduce the Margin, (ii) extend the due date or reduce the
amount of any payment of principal, interest or other amount
payable under this Agreement, (iii) change the currency in which
any amount is payable under this Agreement, (iv) increase any
Bank's Commitment, (v) change the definition of "Majority Banks"
in clause 1.2, (vi) change clauses 3.3, 4.2, 4.3, 15.2, 16.2 or
17.2, (vii) change this clause 18.2, (viii) change clause
11.1(p) (B) to release any asset of whatever nature that is
subject to a Security Document unless such release is to permit
the disposal or other dealing with such asset in accordance with
the terms of this Agreement or the relevant Security Document,
(C) to release any TCN Entity (other than an Immaterial Group
Entity) from all of its obligations under this Agreement and the
Security Documents or (D) to agree with any TCN Entity any
increase in the Commitments under the Senior Loan Agreement.
(c) Each TCN Entity (other than TCN) irrevocably appoints TCN to act
on its behalf as its agent in relation to this Agreement and any
amendment agreement relating hereto and irrevocably authorises
TCN to execute on its behalf any amendments to this Agreement
without further reference to or the consent of such TCN Entity
and to give any waivers, consents and notices in relation to
this Agreement and any amendment agreement relating hereto and
to take any other action in relation to this Agreement and any
amendment agreement relating hereto.
(d) Except with the prior written consent of the Senior Agent, the
Agent shall not have authority on behalf of the Banks (A) to
agree to any reduction in the term of this Agreement or (B) to
agree to any waiver or reduction of the 365 day period in clause
13.2(B).
18.3 Rights of Agent, Security Trustee and each Arranger as Bank; no
partnership
With respect to its own Commitment and Contribution (if any) the Agent,
the Security Trustee and each Arranger shall have the same rights and
powers under this Agreement as any other Bank and may exercise the same
as though it were not performing the duties and functions delegated to
it under this Agreement and/or the Security Documents and the term
"Banks" shall, unless the context clearly otherwise indicates, include
the Agent, the Security Trustee, each Arranger in its individual
capacity as a Bank. This Agreement shall not and shall not be construed
so as to constitute a partnership between the parties or any of them.
18.4 No liability of the Arrangers, the Security Trustee and Agent
None of the Arrangers, the Security Trustee or the Agent shall:
(a) be obliged to request any certificate or opinion under clause 10
or 12 or to make any enquiry as to the use of the proceeds of
the Loan unless (in the case of the Agent) so required in
writing by any Bank, in which case the Agent shall promptly make
the appropriate request of the Borrower, or be obliged to make
any enquiry as to any default by the Borrower in the performance
or observance of any of the provisions of this Agreement or as
to the existence of a Default unless (in the case of the Agent)
the Agent has actual knowledge thereof or has been notified in
writing thereof by a Bank, in which case the Agent shall
promptly notify the Banks of the relevant event or circumstance;
or
(b) be liable to any Bank for any action taken or omitted under or
in connection with this Agreement or the Loan unless caused by
their or its gross negligence or wilful misconduct.
For the purpose of this clause 18 neither the Agent nor the Security
Trustee shall be treated as having actual knowledge of any matter of
which the corporate finance or any other division outside the corporate
lending or loan administration departments of the person for the time
being acting as the Agent or the Security Trustee, as the case may be,
may become aware in the context of corporate finance or advisory
activities from time to time undertaken by the Agent or the Security
Trustee, as the case may be, for any TCN Entity, Telewest, any
Affiliate, any Ultimate Shareholder or any of their respective
Subsidiaries, Associated Partnerships or Affiliates.
18.5 Agent's duty to notify and take action
The Agent shall:
(a) promptly notify each Bank of the contents of each notice,
certificate or other document received by the Agent from the
Borrower under or pursuant to clause 11 and provide each Bank
with a copy of each set of financial statements, Monthly
Management Accounts or Quarterly Management Accounts delivered
to the Agent under clause 10.1(f), (g) or (h) unless such Bank
is also a bank under the Senior Loan Agreement and such document
is deliverable to it under the Senior Loan Agreement; and
(b) (subject to its being indemnified to its satisfaction) take such
action or, as the case may be, refrain from taking such action
with respect to any Default of which the Agent has actual
knowledge as the Majority Banks or Banks (as the case may be)
may reasonably direct.
18.6 Identity of the Banks
The Agent may deem and treat (a) each Bank as the person entitled to
the benefit of the Contribution of such Bank for all purposes of this
Agreement unless and until a notice of assignment of such Bank's
Contribution or any part thereof or a Substitution Certificate shall
have been filed with the Agent, and (b) the office set opposite the
name of each Bank in Part D of Schedule 1 or, as the case may be, in
any relevant Substitution Certificate as such Bank's lending office
unless and until a written notice of change of lending office shall
have been received by the Agent; and the Agent may act upon any such
notice unless and until the same is superseded by a further such
notice.
18.7 Non-reliance on the Arrangers, the Security Trustee or the Agent
Each Bank acknowledges that it has not relied on any statement,
opinion, forecast or other representation made by the Arrangers, the
Security Trustee or the Agent to induce it to enter into this Agreement
an that it has made and will continue to make, without reliance on the
Agent, the Arrangers or the Security Trustee and based on such
documents as it considers appropriate, its own appraisal of the
creditworthiness of each TCN Entity and Telewest and its own
independent investigation of the financial condition and affairs of
each TCN Entity and Telewest in connection with the making and
continuation of the Loan under this Agreement. None of the Arrangers,
the Security Trustee or the Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide
any Bank with any credit or other information with respect to any TCN
Entity or Telewest, whether coming into their or its possession before
the making of any Advance or at any time or times thereafter, other
than (in the case of the Agent) as provided in clause 18.5(a).
18.8 No Responsibility on Arrangers, Security Trustee or Agent for
Borrower's, etc. performance
None of the Arrangers, the Security Trustee or the Agent shall have any
responsibility to any Bank on account of the failure of any TCN Entity
or Telewest, to perform their respective obligations under this
Agreement or the Security Documents or for the financial condition of
any TCN Entity or Telewest, or for the completeness or accuracy of any
statements, representations or warranties in this Agreement, the
Security Documents or any document delivered under this Agreement, the
Security Documents or for the execution, effectiveness, adequacy,
genuineness, validity, enforceability or admissibility in evidence of
this Agreement or the Security Documents or of any certificate, report
or other document executed or delivered under this Agreement or the
Security Documents or otherwise in connection with the Loan or its
negotiation or for acting (or, as the case may be, refraining from
acting) in accordance with the instructions of the Majority Banks or
all of the Banks (as the case may be). The Arrangers, the Security
Trustee and the Agent shall be entitled to rely on any communication,
instrument or document believed by them or it to be genuine and correct
and to have been signed or sent by the proper person and shall be
entitled to rely as to legal or other professional matters on opinions
and statements of any legal or other professional advisers selected or
approved by them or it.
18.9 Other dealings
The Arrangers, the Security Trustee and the Agent may, without any
liability to account to the Banks, accept deposits from, lend money to,
and generally engage in any kind of banking or trust business with,
each TCN Entity, Telewest or any of their respective Subsidiaries,
Associated Partnerships or Affiliates or any of the Banks as if they or
it were not an Arranger, the Security Trustee or the Agent (as the case
may be).
18.10 Reimbursement and indemnity by Banks
Each Bank shall reimburse the Arrangers, the Security Trustee and the
Agent (rateably in accordance with such Bank's Commitment, at any time
before the making of the first Advance or if no Advance is then
outstanding, or Contribution, at any other time) to the extent that
such Arranger, the Security Trustee or the Agent is not reimbursed by
the Borrower, for the charges and expenses incurred by such Arranger,
the Security Trustee and the Agent in connection with the negotiation,
preparation, syndication and execution of this Agreement and/or in
contemplation of, or otherwise in connection with, the enforcement of,
or the preservation of any rights under, or in carrying out its duties
under, this Agreement and/or the Security Documents including (in each
case) the fees and expenses of legal or other professional advisers.
Each Bank shall indemnify the Agent and the Security Trustee (rateably
in accordance with such Bank's Commitment, at any time before the
making of the first Advance or if no Advance is then outstanding, or
Contribution, at any other time) against all liabilities, damages,
costs and claims whatsoever incurred by the Agent or the Security
Trustee (as the case may be) in connection with this Agreement and/or
the Security Documents or any document or report referred to in this
Agreement or the performance of its duties under this Agreement and/or
the Security Documents or any action taken or omitted by the Agent or
the Security Trustee (as the case may be) under this Agreement and/or
the Security Documents, unless such liabilities, damages, costs or
claims arise from the Agent's or the Security Trustee's (as the case
may be) own gross negligence or wilful misconduct.
18.11 Retirement of Agent
(a) The Agent may retire from its appointment as Agent under this
Agreement and/or the relevant Security Documents having given to
the Borrower and each of the Banks not less than 30 days' notice
of its intention to do so, provided that no such retirement
shall take effect unless there has been appointed by the Banks
(after consultation with the Borrower) as a successor agent:
(i) a Bank; or
(ii) any other reputable and experienced financial
institution with offices in London nominated and
accepted by the Majority Banks and to which the Borrower
has given its consent (such consent not to be
unreasonably withheld or delayed); or, failing such
nomination;
(iii) any reputable and experienced bank or financial
institution with offices in London nominated by the
Agent and to which the Borrower has given its consent
(such consent not to be unreasonably withheld or
delayed).
(b) All of the Banks (other than the Agent, in its capacity as a
Bank) may, having given to the Agent not less than 30 days'
notice of the intention to do so, remove the Agent from its
appointment as such under the Agreement. The removal shall
automatically be of effect on the expiry of the notice save,
where the Banks (other than the Agent, in its capacity as a
Bank) shall have failed to appoint a successor agent falling
within the requirements of clause 18.11(a) (i) or (ii), in which
case the removal shall be deferred until such appointment is
made. The Banks (other than the Agent, in its capacity as a
Bank) shall immediately notify the Agent in writing of their
making such appointment.
(c) Upon any such successor as aforesaid being appointed, the
retiring Agent shall be discharged from any further obligation
under this Agreement and/or the relevant Security Documents and
its successor and each of the other parties to this Agreement
and/or the relevant Security Documents shall have the same
rights and obligations among themselves as they would have had
if such successor had been a party to this Agreement and/or the
relevant Security Documents in place of the retiring Agent.
18.12 Change of Reference Banks
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (b) the Commitment (if any) of any Reference Bank is reduced
to zero in accordance with clause 6.4 or 15.1, (c) a Reference Bank
assigns and/or novates the whole of its rights and obligations (if any)
as a Bank under this Agreement or (d) any Reference Bank ceases to
provide quotations to the Agent for the purposes of determining LIBOR,
the Agent may, acting on the instructions of the Majority Banks,
terminate the appointment of such Reference Bank and after consultation
with the Borrower appoint another Bank to replace such Reference Bank.
18.13 Security Documents
Each Bank acknowledges and agrees to the terms and conditions of the
Security Documents and the Security Trustee and the Banks agree that
the Banks will, subject to the terms of the Security Trust Deed, be
entitled to all the rights and subject to the liabilities and
obligations of the Banks under the Debenture and any other Security
Document entered into by the Security Trustee for the benefit of the
Banks.
19 NOTICES AND OTHER MATTERS
19.1 Notices
Every notice, request, demand or other communication under this
Agreement shall, if addressed to the Borrower, be copied to Telewest
and, if addressed to any other TCN Entity, be copied to the Borrower
and Telewest, and shall:
(a) be in writing delivered personally or by first-class prepaid
letter (airmail if applicable and available), telex or telefax
(confirmed in the case of a telefax, by first-class prepaid
letter (airmail if available)):
(b) be deemed to have been received, subject as otherwise provided
in this Agreement, in the case of a letter, when delivered
personally or 3 days (7 days in the case of a letter posted from
one country to another) after it has been put into the post and,
in the case of a telex or telefax, at the time of despatch with,
in the case of telex, confirmed answerback of the addressee
appearing at the beginning and end of the transmission or it the
case of a telefax, with confirmation by the sender's facsimile
machine that the message has been received at the correct
facsimile number (provided that if the date of delivery or
despatch is not a business day in the country of the addressee
or if the time of despatch of any telex or telefax is after the
close of business in the country of the addressee it shall be
deemed to have been received at the opening of business on the
next such business day); and
(c) be sent:
(i) to the Borrower and each other TCN Entity at:
c/o Telewest Communications plc
Xxxxxxx Xxxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxx
Xxxxxx XX00 0XX
Telefax:.01483 750901
Attention: Vice-President - Treasury
(ii) to the Agent and the Security Trustee at:
Xxxxxx Xxxxx
00-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax:.0171 638 0006
Attention: Director, Communications Finance
(iii) to each Arranger and each Bank at its address, telex
number or telefax number specified in Part D of Schedule
1 or in any relevant Substitution Certificate
or to such other address, telex number or telefax number as is
notified by the Borrower, a TCN Entity, the Agent, an
Arranger, the Security Trustee or a Bank (as the case may be)
to the other parties to this Agreement.
19.2 Notices through the Agent
Every notice, request, demand or other communication under this
Agreement to be given by any TCN Entity to any other party shall be
given to the Agent for onward transmission as appropriate and to be
given to any TCN Entity shall (except as otherwise provided in this
Agreement) be given by the Agent.
19.3 No implied waivers, remedies cumulative
No failure or delay on the part of the Agent, the Arrangers, the
Security Trustee, the Banks or any of them to exercise any power, right
or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise by the Agent, the Arrangers, the
Security Trustee, the Banks or any of them of any power, right or
remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy. The remedies provided in this
Agreement are cumulative and are not exclusive of any remedies provided
by law.
19.4 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
20 GOVERNING LAW AND JURISDICTION
20.1 Law
This Agreement is governed by and shall be construed in accordance with
English law.
20.2 Submission to jurisdiction
Each TCN Entity agrees for the benefit of the Agent, the Arrangers, the
Security Trustee and the Banks that any legal action or proceedings in
connection with this Agreement against any TCN Entity or any of their
respective assets may be brought in the English courts. Each TCN Entity
irrevocably and unconditionally submit to the jurisdiction of such
courts and in the case of TCN Entities which are not incorporated or
organised under the laws of England, irrevocably designate, appoint and
empower Legibus Secretaries Limited at present of 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX to receive for them and on their behalf,
service of process issued out of the English courts in any legal action
or proceedings arising out of or in connection with this Agreement. The
submission to such jurisdiction shall not (and shall not be construed
so as to) limit the right of the Agent, the Arrangers, the Security
Trustee or the Banks to take proceedings against any TCN Entity to
enforce any judgment obtained in any court referred to in this clause
20.2 in any jurisdiction in which any of the assets of any TCN Entity
are situated, nor shall the taking of proceedings in any one or more
jurisdiction referred to in this clause 20.2 preclude the taking of
proceedings in any other such jurisdiction, whether concurrently or
not.
20.3 Inconvenient forum
Each TCN Entity irrevocably waives any objection they may have now or
hereafter to the laying of venue of any action or proceeding in any
court or jurisdiction referred to in clause 20.2 and any claim they may
have now or hereafter that any action or proceeding brought in such
courts or jurisdiction has been brought in an inconvenient forum.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
SCHEDULE 1
PART A
THE ORIGINAL CHARGING SUBSIDIARIES
========================================================================== ===================================
(1) (2)
COMPANY NAME COMPANY NUMBER
========================================================================== ===================================
Telewest Communications Group Limited 2514287
========================================================================== ===================================
Telewest Communications Cable Limited 2883742
========================================================================== ===================================
Telewest Communications Holdings Limited (formerly called Telewest 2982404
Holdings Limited)
========================================================================== ===================================
Telewest Parliamentary Holdings Limited 251 4316
========================================================================== ===================================
Theseus No 1 Limited 2994027
========================================================================== ===================================
Theseus No. 2 Limited 2994061
========================================================================== ===================================
The Cable Equipment Store Limited 2693805
========================================================================== ===================================
Telewest Communications (Cotswolds) Limited (formerly called United 1743081
Artists Communications (Cotswolds) Limited)
========================================================================== ===================================
Telewest Communications (Nominees) Limited (formerly called United 2318746
Artists Communications (Nominees) Limited)
========================================================================== ===================================
Telewest Communications (North East) Limited (formerly called United 2378214
Artists Communications (North East) Limited)
========================================================================== ===================================
Telewest Communications (South East) Limited (formerly called United 2270764
Artists Communications (South East) Limited)
========================================================================== ===================================
Telewest Communications (South Thames Estuary) Limited (formerly called 2270763
United Artists Communications (South Thames Estuary) Limited)
========================================================================== ===================================
Telewest Communications (Tyneside) Limited (formerly called United 2407676
Artists Communications (Tyneside) Limited)
========================================================================== ===================================
Telewest Communications (Midlands and North West) Limited (formerly 2795350
called SBC Cable Comms (UK) Limited)
========================================================================== ===================================
Southwestern Xxxx International Holdings Limited 2378768
========================================================================== ===================================
Telewest Communications (Midlands) Limited (formerly called Midlands 1882074
Cable Communications Limited)
========================================================================== ===================================
Telewest Communications (Telford) Limited (formerly called Telford 2389377
Telecommunications Limited)
========================================================================== ===================================
Telewest Communications (North West) Limited (formerly called North 2321124
West Cable Communications Limited)
========================================================================== ===================================
========================================================================== ===================================
Telewest Communications (Wigan) Limited (formerly called Cable 2451112
Communications Wigan Limited)
========================================================================== ===================================
Telewest Communications (Central Lancashire) Limited (formerly called 1737862
Cable Communications (Central Lancashire) Limited)
========================================================================== ===================================
Telewest Communications (Liverpool) Limited (formerly called Cable 1615567
Communications (Liverpool) Limited)
========================================================================== ===================================
Telewest Communications (St. Helens & Knowsley) Limited (formerly 2466599
called Cable Communications (St. Helens & Knowsley) Limited)
========================================================================== ===================================
Telewest Communications (East Lothian & Fife) Limited (formerly called SC150057
Telewest (Motherwell) Limited)
========================================================================== ===================================
Telewest Communications (London South) Limited (formerly called United 1697437
Artists Communications (London South) Limited)
========================================================================== ===================================
Telewest Communications (South West) Limited (formerly called United 2271287
Artists Communications (Avon) Limited)
========================================================================== ===================================
Telewest Communications (Dundee & Perth) Limited (formerly called SC096816
Tayside Cable Systems Limited)
========================================================================== ===================================
Telewest Communications (Glenrothes) Limited (formerly called Kingdom SC119523
Cablevision Limited)
========================================================================== ===================================
Telewest Communications (Motherwell) Limited (formerly called Scotcable SC121617
(Motherwell) Limited)
========================================================================== ===================================
Telewest Communications (Cumbernauld) Limited (formerly called Scotcable SC121614
(Cumbernauld) Limited)
========================================================================== ===================================
Telewest Communications (Dumbarton) Limited (formerly called Scotcable SC121700
(Dumbarton) Limited)
========================================================================== ===================================
Telewest Communications (Falkirk) Limited (formerly called Cable North SC122481
(Forth District) Limited)
========================================================================== ===================================
Telewest Communications (Scotland) Limited (formerly called Xxxxxx XX00000
Artists Communications (Scotland) Limited)
========================================================================== ===================================
Telewest Communications (Scotland Holdings) Limited (formerly called SC150058
Telewest Scotland Holdings Limited)
========================================================================== ===================================
Telewest Communications (Internet) Limited 03141035
========================================================================== ===================================
Telewest Communications (Southport) Limited (formerly called Telewest 03085912
(Southport) Limited)
========================================================================== ===================================
Crystal Palace Radio Limited 01459745
========================================================================== ===================================
Avon Cable Investments Limited 2487110
========================================================================== ===================================
Telewest Communications (Worcester) Limited (formerly called Telewest 02475098
(Worcester) Limited)
========================================================================== ===================================
PART B
THE ORIGINAL CHARGING PARTNERSHIPS
============================================================= =======================================================
(1) (2)
PARTNERSHIP NAME PRINCIPAL PLACE OF BUSINESS
============================================================= =======================================================
Cotswolds Cable Limited Partnership Concord House,
Staverton Technology Park,
Staverton,
Cheltenham,
Gloucestershire GL51 6TQ
============================================================= =======================================================
Estuaries Cable Limited Partnership Xxxxxxxxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxx Xxxx,
Xxxxxxxx,
Xxxxx XX0 0XX
============================================================= =======================================================
TCI/US WEST Cable Communications Group Xxxxxxx Xxxxxxxx Xxxx,
Xxxxxx Xxxxx,
Xxxxxx,
Xxxxxx XX00 0XX
============================================================= =======================================================
Tyneside Cable Limited Partnership Communications House,
1 Duke's Way West,
Team Valley,
Gateshead,
County Xxxxxx XX00 0XX
============================================================= =======================================================
Telewest Communications (North East) Partnership (formerly Communications House,
called United Artists Communications (North East) 1 Duke's Way West,
Partnership) Team Valley,
Gateshead,
County Xxxxxx XX00 0XX
============================================================= =======================================================
Telewest Communications (South East) Partnership (formerly Communications House, Scimitar Park,
called United Artists Communications (South East) Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx) Xxxxx XX0 0XX
============================================================= =======================================================
London South Cable Partnership Communications Centre, 0 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxx
============================================================= =======================================================
Avon Cable Limited Partnership 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxx XX00 0XX
============================================================= =======================================================
Edinburgh Cable Limited Partnership 0 Xxxxx Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX
============================================================= =======================================================
United Cable (London South) Limited Partnership Communications Centre,
0 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxx
============================================================= =======================================================
============================================================= =======================================================
Avon Cable Joint Venture 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxx XX00 0XX
============================================================= =======================================================
Telewest (London South) Joint Venture (formerly called Communications Centre,
London South Joint Venture) 0 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxx
============================================================= =======================================================
Telewest Communications (Cotswolds) Venture (formerly Network Centre,
called United Artists Communications (Cotswolds) Venture) Xxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxxxx XX00 0XX
============================================================= =======================================================
Telewest Communications (Scotland) Venture (formerly called 0 Xxxxx Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX
United Artists Communications (Scotland) Venture)
============================================================= =======================================================
PART C
THE ORIGINAL NON-CHARGING SUBSIDIARIES
========================================================================= ====================================
(1) (2)
COMPANY NAME COMPANY NUMBER
========================================================================= ====================================
Cable Communications (Telecomm) Limited 02423585
========================================================================= ====================================
Cable Communications Limited 01860121
========================================================================= ====================================
Telewest Communications (Fylde & Wyre) Limited (formerly called Cable 02935056
Communications Fylde & Wyre Limited)
========================================================================= ====================================
Telewest Share Trust Limited 02472760
========================================================================= ====================================
Telewest Trustees Limited 03071066
========================================================================= ====================================
Crystalvision Productions Limited 01947225
========================================================================= xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxx Xxxx Xxxxxxxxxxx Xxxxxxx XX00000
========================================================================= xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxxxx Xxxxxxxxxxx Xxxxxxx XX000000
========================================================================= xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxxxxxx Xxxxxxx XX00000
========================================================================= ====================================
Cable Interactive Limited (formerly called Cable Communications South 03006851
East Staffordshire Limited)
========================================================================= ====================================
Cable on Demand Limited (formerly called Cable Communications 03039816
Shrewsbury Limited)
========================================================================= xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxx XX000000
========================================================================= ====================================
Dundee Cable and Satellite Limited SC093114
========================================================================= ====================================
Cable Guide Limited 02025654
========================================================================= ====================================
PART D
THE BANKS AND THEIR COMMITMENTS
NAME ADDRESS AND TELEX AND FACSIMILE NUMBERS COMMITMENT
(POUND)
The Bank of New York Company, Inc. 00 Xxxxxxxx Xxxxxx 00,000,000
Xxxxxx
X0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attention: Loans Administration
CIBC Wood Gundy plc Cottons Centre 11,150,000
Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attention: Xxxxxx Xxxx
The Xxxxx Manhattan Bank Chaseside 11,150,000
Bournemouth
Dorset
Tel: 00000 000000
Fax: 00000 000000
Attention: European Loans
National Westminster Bank plc 000 Xxxxxxxxxxx 11,150,000
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Telex: 882121
Attention: Portfolio Management
The Toronto-Dominion Bank Triton Court 11,150,000
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000/8225
Fax: 0000 000 0000
Telex: 883391 TORDOMC
Attention: Xxxxx Xxxxx
NationsBank N.A. (London Branch) New Broad Street House 7,500,000
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000/2476
Fax: 0000 000 0000
Attention: Xxxx Xxxxxxx/
Xxxxx Xxxxxxxxx
Bank Boston, N.A. 00 Xxxxxxxx Xxxxxx 5,000,000
XX Xxx 000
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Telex: 886705/885125
Attention: Xxxxxx Xxxxx/Xxxx Xxxxx
Bankers Trust Company 0 Xxxxxx Xxxxxx 5,000,000
Xxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 0171 982 2599
Fax: 0171 982 1182
Telex: 883341
Attention: Xxxxxxx Xxxxxxxxx
Banque Paribas 00 Xxxxxxxx Xxxxxx 0,000,000
Xxxxxx XX0 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attention: Xxx Xxxxxxxxxxxx
Barclays Bank PLC Structured Finance 5,000,000
Barclays Capital
5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attention: Head of Asset Management
The British Linen Bank Limited XX Xxx 00 5,000,000
0 Xxxxxxxx Xxxxxx
Xxxxxxxxx XX0 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Telex: 727221
Attention: Xxxxxx X. Xxxxxx
Deutsche Bank AG, London Branch 6 Bishopsgate 5,000,000
Xxxxxx XX0X 0XX
Tel: 0000 000 0000/7267
Fax: 0000 000 0000
Attention: Xxxxxx Xxxxxxxx/
Xxxxxx Xxxxx
MeesPierson N.V. Camomile Court 5,000,000
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attention: Mrs Xxxxxx Cuffling
N M Rothschild & Sons Limited New Court 1,750,000
Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attention: Xxxxxx Xxxxxx
--------------------
100,000,000
--------------------
SCHEDULE 2
PART A
FORM OF DRAWDOWN NOTICE
To: The Toronto-Dominion Bank
Triton Court
00-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Supervisor, Banking Services [Date]
(POUND)100,000,000 LOAN FACILITY
LOAN AGREEMENT DATED O, 1998
(AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED
OR REPLACED THE "LOAN AGREEMENT")
1. We refer to the above Loan Agreement and hereby give you notice that we
wish to draw a Revolving Advance of (pound)[ ] on [ ] and select a Term
for such Revolving Advance of [ ] months. The funds should be credited
to [NAME AND NUMBER OF ACCOUNT] with [BANK IN LONDON].
2. We confirm that:
(i) no event or circumstance has occurred and is continuing
which constitutes a Default;
(ii) the representations and warranties referred to in clause
9.3 including those deemed to be made by the Borrower
pursuant to such clause are (subject as provided in
clause 9.3) true and correct at the date hereof as if
each was made with respect to the facts and
circumstances existing at the date hereof; and
(iii) the borrowing to be effected by such Revolving Advance
will be within our powers, has been validly authorised
by appropriate action and will not cause any limit on
our borrowings (whether imposed by statute, regulation,
agreement or otherwise) to be exceeded.
3. We confirm that Consolidated Annualised TCN Group Net Operating Cash
Flow in the most recently delivered Monthly Management Accounts was [
].
4. We further confirm that the ratio of the Total TCN Secured Debt
(including, for these purposes, the amount of the Advance the subject
of this notice) to Consolidated Annualised TCN Group Net Operating Cash
Flow as calculated from the most recently delivered Monthly Management
Accounts delivered to the Agent under this Agreement was [ ].
Words and expressions defined in the Loan Agreement shall have the same meanings
where used herein.
For and on behalf of
TELEWEST COMMUNICATIONS NETWORKS LIMITED
..................................................
Authorised Officer
SCHEDULE 2
PART B
FORM OF ROLLOVER NOTICE
To: The Toronto-Dominion Bank
Triton Court
00-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Supervisor, Banking Services [Date]
(POUND)100,000,000 LOAN FACILITY
LOAN AGREEMENT DATED O 1998
(AS FROM TIME AMENDED, VARIED, EXTENDED, RESTATED
OR REPLACED THE "LOAN AGREEMENT")
We refer to the above Loan Agreement and hereby give you notice that we wish to
draw a Revolving Advance of (pound)[ ] on [ ] and select a Term for such
Revolving Advance of [ ] months. The funds should be applied in repayment [in
part] of the Revolving Advance of (pound)[ ] which falls due to be repaid on the
same day in accordance with clause 4.10 of the Loan Agreement.
Words and expressions defined in the Loan Agreement shall have the same meanings
when used herein.
For and on behalf of
TELEWEST COMMUNICATIONS NETWORKS LIMITED
...........................
Authorised Officer
SCHEDULE 3
DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT
(a) Copies, certified as true, complete and up-to-date copies by the
Company Secretary of the Borrower, of the Memorandum and Articles of
Association of the Borrower.
(b) A copy certified as a true copy by the Company Secretary of Resolutions
of the Board of Directors of the Borrower evidencing approval of this
Agreement and any Security Document to which it is a party and
authorising its appropriate officers to execute and deliver this
Agreement, each Security Document to which it is a party and to give
all notices and take all other action required by the Borrower under
this Agreement and each Security Document to which it is a party.
(c) A copy, certified as a true copy by the Company Secretary, of
Resolutions of the Board of Directors of Telewest evidencing approval
of the Share Charge, the Deed of Subordination, the Telewest National
Network Licence Assignment, and the Telewest Loan Assignment and
authorising its appropriate officers to execute and deliver the Share
Charge, the Deed of Subordination, the Telewest National Network
Licence Assignment, the Telewest Loan Assignment and to give all
notices and to take all action required by it under the Share Charge,
the Deed of Subordination, the Telewest National Network Licence
Assignment, and the Telewest Loan Assignment.
(d) Specimen signatures, authenticated by the relevant Company Secretary,
of the persons authorised in the Resolutions of the Board of Directors
referred to in paragraphs (b) and (c) above.
(e) Copies, certified as true copies by the relevant duly authorised
officer from Legibus Secretaries Limited as agents for receipt of
service of process referred to in this Agreement and/or the Security
Documents of acknowledgement of appointment as such.
(f) The Deed of Subordination, the Share Charge, the Telewest National
Network Licence Assignment and the Telewest Loan Assignment having been
duly executed and delivered by Telewest.
(g) The Security Documents having been duly executed and delivered by the
Borrower and the other applicable TCN Entities.
(h) A notice in the form attached to the Debenture having been given to
each insurer of all or any of the material assets of the Borrower and
each TCN Entity and the same having been agreed and accepted by each
relevant insurer.
(i) A copy, certified as a true copy by the Company Secretary of Telewest,
of the National Network Licence.
(j) An opinion of Xxxxxx Xxxx, solicitors to the Agent, dated no earlier
than 15 days prior to the date of this Agreement.
(k) A letter, addressed to the Agent and the Banks, from KPMG Peat Marwick
stating that in KPMG Peat Marwick's opinion the financial projections
and underlying accounting assumptions of the Long Range Plan delivered
to the Arrangers prior to the date of this Agreement are reasonable.
(l) A copy of the budget of the TCN Group for the period commencing on 1
January 1998 and ending on 31 December 1998.
(m) A copy, certified as a true copy by a Director of the Borrower, of the
Long Range Plan.
(n) A letter from a director of Telewest confirming that as of the first
Drawdown Date any borrowing limit set out in Telewest's Articles of
Association will not be exceeded by the borrowing by the Borrower of
all the Commitments.
(o) Either (i) a letter from a director or the Company Secretary of
Telewest confirming that the Memorandum and Articles of Association of
each Original Charging Subsidiary or Partnership Agreement of each
Original Charging Partnership have not been amended from the date of
the Senior Loan Agreement; or (ii) copies, certified as true copies by
the relevant Company Secretary of the relevant revised Memorandum and
Articles of Association.
(p) A copy certified as a true copy by the Company Secretary of Resolutions
of the Board of Directors of each Original Charging Subsidiary and by a
Partnership Secretary of Resolutions of the Partners of each Original
Charging Partnership evidencing approval of this Agreement, and any
Security Document to which it is a party and authorising its
appropriate officers to execute and deliver this Agreement and the
Security Documents to which it is a party and to give all notices and
take all other action required by each such Original Charging
Subsidiary or, as the case may be, such Original Charging Partnership
under this Agreement and each Security Document to which it is a party
together with a copy of the resolutions of the authorised
representative of each General Partner of each Charging Partnership
evidencing approval of this Agreement and any Security Document to
which it is a party certified as a true copy by a responsible officer
of such General Partner and certifying as to the authority of such
authorised representative.
(q) Specimen signatures certified by the relevant Company Secretary or
Partnership Secretary of the persons authorised by the resolutions
referred to in paragraph (p) above.
(r) Opinions of legal counsel to the Agent in the jurisdiction of
incorporation or formation of each Original Charging Subsidiary and
each Original Charging Partnership dated no earlier than 15 days prior
to the date hereof including an opinion from Xxxxxxxx & Xxxxxxxx
together with an opinion from Xxxxxxx and Xxxxxx L.L.C., special legal
counsel to the Borrower in Denver, Colorado, dated no earlier than 15
days prior to the date hereof.
(s) A Pledge and Security Agreement with respect to each of the Original
Charging Partnerships organised under the laws of one of the United
States of America in each case duly executed and delivered by each and
every of the partners in such Original Charging Partnership.
(t) Certificates of valid existence by the appropriate State in relation to
each of the Original Charging Partnerships that is a limited
partnership and is organised under the laws of one of the United States
of America.
(u) Receipt of all regulatory consents and letters (in the agreed form) and
the effecting of all registrations required in connection with this
Agreement and the Security Documents, including letters from the ITC,
OFTEL and the DTI.
(v) Confirmation from an authorised officer of the Borrower that no member
of the Telewest Group is in default under any existing financing
arrangements including the Senior Securities and the Senior Loan
Agreement.
(w) A UCC-1 financing statement executed by each of the partners in each of
the Original Charging Partnerships that is organised under the laws of
one of the United States of America with respect to their respective
pledges under the Pledge and Security Agreements.
(x) Certified copies of those charges detailed in schedule 8 and underlying
loan documentation, together with a notice to each party secured by an
existing encumbrance, such notice to be in a form agreed between the
Borrower and the Agent, and any acknowledgements of such notices which
the Borrower has, using its reasonable endeavours, been able to
procure.
(y) Certified copies of Telewest/TCN Loan Agreement and the 1997 Telewest
Letter Agreement.
(z) Confirmation from the Company Secretary of the Borrower that there are
no outstanding Encumbrances or Borrowings other than Permitted
Encumbrances/Permitted Borrowings.
(aa) Confirmation from the Senior Agent that the amendments to the Senior
Loan Agreement set out in the Senior Loan Amendment Agreement have
become effective.
SCHEDULE 4
CALCULATION OF ADDITIONAL COST
1 The Additional Cost for any period is calculated in accordance with the
following formula:
BY + L(Y-X) + S(Y-Z)
------------------------
100 - (B+S) per cent. per annum
where on the day of application of the formula:
B is the percentage of the Agent's eligible liabilities which
the Bank of England then requires the Agent to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the percentage rate at which Sterling deposits are offered
by the Agent to leading banks in the London interbank market
at or about 11 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which (as a result
of the requirements of the Bank of England) the Agent
maintains as secured money with members of the London Discount
Market Association or in certain marketable or callable
securities approved by the Bank of England;
X is the percentage rate at which secured Sterling investments
may be placed by the Agent with members of the London Discount
Market Association at or about 11 a.m. on that day for the
relevant period or, if greater, the rate at which Sterling
bills of exchange (of a tenor equal to the duration of the
relevant period) eligible for rediscounting at the Bank of
England can be discounted in the London Discount Market at or
about 11 a.m. on that day;
S is the percentage of the Agent's eligible liabilities which
the Bank of England requires the Agent to place as a special
deposit; and
Z is the interest rate expressed as a percentage per annum
allowed by the Bank of England on special deposits.
2 For the purposes of this Schedule 4:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(b) "RELEVANT PERIOD" in relation to each period for which
Additional Cost falls to be calculated means:
(i) if it is 3 months or less, that period; or
(ii) if it is more than 3 months, 3 months.
3 In the application of the formula, B, Y, L, X, S and Z are included in
the formula as percentages, e.g. if B = 0.5 per cent. and Y = 15 per
cent. BY is calculated as 0.5 x 15.
4 The formula is applied on the first day of each relevant period. Each
amount is rounded up (if necessary) to the nearest four decimal places.
5 If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation
with all of the Banks) shall notify the Borrower of the manner in which
the Additional Cost will subsequently be calculated. The manner of
calculation so notified by the Agent shall, in the absence of manifest
error, be binding on all the parties.
SCHEDULE 5
FORM OF SUBSTITUTION CERTIFICATE
BANKS ARE ADVISED NOT TO EMPLOY SUBSTITUTION CERTIFICATES OR OTHERWISE TO ASSIGN
OR TRANSFER INTERESTS IN THE AGREEMENT WITHOUT FIRST ENSURING THAT THE
TRANSACTION COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING THE
FINANCIAL SERVICES XXX 0000 AND REGULATIONS MADE THEREUNDER.
To: The Toronto-Dominion Bank
Triton Court
00-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Director, Communications Finance
[Date]
SUBSTITUTION CERTIFICATE
This Substitution Certificate relates to a Loan Agreement (as from time to time
amended, varied, extended, restated or replaced (the "AGREEMENT") dated o 1998
between Telewest Communications Networks Limited as Borrower (1), the
Subsidiaries of the Borrower whose respective names and registered numbers are
set out in part A of Schedule 1 thereto, (2), the Associated Partnerships of the
Borrower whose respective names and principal places of business are set out in
part B of Schedule 1 thereto, (3), the Arrangers (4), the banks and financial
institutions whose respective names and addresses are set out in Part D of
Schedule 1 thereto as Banks (5), the Agent (6) and the Security Trustee (7).
Terms defined in the Agreement shall have the same meaning in this Substitution
Certificate.
1 [Existing Bank] (the "EXISTING BANK") (a) confirms the accuracy of the
summary of its participation in the Agreement set out in the Schedule
hereto; and (b) requests [Substitute Bank] (the "SUBSTITUTE") to accept
by way of novation the portion of such participation specified in the
schedule hereto by countersigning and delivering this Substitution
Certificate to the Agent at its address for the service of notices
specified in the Agreement.
2 The Substitute hereby requests the Agent (on behalf of itself, the
Arrangers, the Security Trustee, the Borrower, the other TCN Entities
and the Banks) to accept this Substitution Certificate as being
delivered to the Agent pursuant to and for the purposes of clause 17.4
of the Agreement, so as to take effect in accordance with the
respective terms thereof on [date of transfer] (the "EFFECTIVE DATE")
or on such later date as may be determined in accordance with the terms
thereof.
3 The Agent (on behalf of itself, the Arrangers, the Security Trustee,
the Borrower, the other TCN Entities and the Banks) confirms the
novation effected by this Substitution Certificate pursuant to and for
the purposes of clause 17.4 of the Agreement so as to take effect in
accordance with the terms thereof.
4 The Substitute confirms:
(a) that it has received a copy of the Agreement, the Security
Documents and all other documentation and information required
by it in connection with the transactions contemplated by this
Substitution Certificate;
(b) that it has made and will continue to make its own assessment
of the validity, enforceability and sufficiency of this
Agreement and the Security Documents and the Substitution
Certificate and has not relied and will not rely on the
Existing Bank, any Arranger, the Security Trustee, any other
Bank or the Agent or any statements made by any of them in
that respect;
(c) that it has made and will continue to make its own credit
assessment of the Borrower, each other TCN Entity and Telewest
and has not relied and will not rely on the Existing Bank, any
Arranger, the Security Trustee, any other Bank or any
statements made by any of them in that respect;
(d) accordingly, none of the Existing Bank, any Arranger, the
Security Trustee, any other Bank or the Agent shall have any
liability or responsibility to the Substitute in respect of
any of the foregoing matters; and
(e) it is a Qualifying Bank.
5 Execution of this Substitution Certificate by the Substitute
constitutes its representation to the Existing Bank and all other
parties to the Agreement and the Security Trust Deed that it has power
to become party to the Agreement and the Security Trust Deed as a Bank
on the terms herein and therein set out and has taken all necessary
steps to authorise execution and delivery of this Substitution
Certificate.
6 The Existing Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement or the Security Documents
or any document relating thereto and assumes no responsibility for the
financial condition of the Borrower, each other TCN Entity and Telewest
or any other party to the Agreement or the Security Documents or for
the performance and observance by the Borrower, each other TCN Entity
and Telewest or any other such party of any of its obligations under
the Agreement or the Security Documents or any document relating
thereto and any and all such conditions and warranties, whether express
or implied by law or otherwise, are hereby excluded.
7 The Substitute hereby undertakes to the Existing Bank, the Borrower,
the other TCN Entities, the Arrangers, the Security Trustee, the other
Banks and the Agent that it will perform in accordance with their terms
all those obligations which by the respective terms of the Agreement
and the Security Documents will be assumed by it after acceptance of
this Substitution Certificate by the Agent.
8 This Substitution Certificate and the rights and obligations of the
parties hereunder are governed by and shall be construed in accordance
with English law.
NOTE: This Substitution Certificate is not a security, bond, note,
debenture, investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
THE SCHEDULE
AMOUNT OF CONTRIBUTION NEXT INTEREST PAYMENT DATE(S) PORTION NOVATED
((POUND))
AMOUNT OF COMMITMENT PORTION NOVATED ((POUND))
ADMINISTRATIVE DETAILS OF SUBSTITUTE
Lending office:
Account for payments:
Telephone:
Telex:
Fax:
Attention:
[Existing Bank] [Substitute]
By: By:
Date: Date:
The Agent
By:
Date:
on its own behalf
and on behalf of the Borrower, the other TCN Entities, the Arrangers, the
Security Trustee, and the Banks.
SCHEDULE 6
PART A
FORM OF COMPLIANCE CERTIFICATE TO BE ISSUED BY AN
AUTHORISED OFFICER OF THE BORROWER
CIBC Wood Gundy plc
Xxxxxxx Xxxxxx.
Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Attention: Supervisor, Banking Services [Date]
Dear Sirs
TELEWEST COMMUNICATIONS NETWORKS LIMITED
(POUND)100,000,000 LOAN FACILITY, LOAN AGREEMENT DATED O 1998
(AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED OR REPLACED
(THE "LOAN AGREEMENT")
We refer to the Loan Agreement and deliver this Certificate in respect of the
Quarterly Period ended [ ] pursuant to clause 10.1(j)(a)(ii) thereof. Terms
defined in the Loan Agreement shall have the same meaning when used in this
Certificate. Net Operating Cashflow shall herein be defined as "NOCF".
We confirm that on or as of the last day of the Quarterly Period ending [ ]:
1 Consolidated TCN Group NOCF for the Six Month Period ended [ ] was [ ].
2 *Consolidated Annualised TCN Group NOCF for the Six Month Period ended
[ ], was [ ].
3 *Senior Tranche B Loan as at [ ] was [ ].
4 *Senior Facility Debt Interest Charges for the Six Month Period ended [
] was [ ].
5 *Total TCN Group Cash Paying Debt Interest Charges for the Six Month
Period ended [ ] was [ ].
6 *Consolidated Telewest Group NOCF for the Six Month Period ended [ ]
was [ ].
7 *Total Telewest Group Cash Paying Debt Interest Charges for the Six
Month Period ended [ ] was [ ].
8 **On the basis of projections provided by Telewest management,
Pro-forma Total Telewest Group Debt Service for the twelve months
commencing [ ] is [ ].
9 ****On the basis of projections provided by Telewest management,
Proforma Total TCN Group Debt Service for the twelve months commencing
[ ].
10 ***Total TCN Secured Debt for the Six Month Period ended [ ] was [ ].
===
Based on the above, we confirm that on [ ]:
(1) *Senior Tranche B Loan divided by Consolidated Annualised TCN Group
NOCF was [ x].
(2) *Consolidated TCN Group NOCF divided by Senior Facility Debt Interest
Charges was [ x].
(3) *Consolidated TCN Group NOCF divided by Total TCN Group Cash Paying
Debt Interest Charges was [ x].
(4) *Consolidated Telewest Group NOCF divided by Total Telewest Group Cash
Paying Debt Interest Charges was [ x].
(5) **Consolidated Annualised Telewest Group NOCF divided by Proforma Total
Telewest Group Debt Service was [ x].
(6) ****Consolidated Annualised TCN Group NOCF divided by Proforma Total
TCN Group Debt Service was [ x].
(7) ***Total TCN Secured Debt divided by Consolidated Annualised TCN Group
NOCF was [ x].
Based on the above, we confirm that the Borrower was in compliance with the
undertakings set out in clause 12.1(a) to (g) as at [ ].
We also confirm that the representations and warranties referred to in clause
9.3 including those deemed to be made by the Borrower pursuant to such clause
are (subject as provided in clause 9.3) true and correct at the date hereof as
if each was made with respect to the facts and circumstances existing at the
date hereof.
FOR AND ON BEHALF OF
TELEWEST COMMUNICATIONS
NETWORKS LIMITED
..........................................................
Authorised Officer
* To be reported with effect from 31 March 1998
** To be reported with effect from 31 March 1999
*** To be reported with effect from 30 September 1999
**** To be reported with effect from 30 June 2000
PART B
FORM OF COMPLIANCE CERTIFICATE TO BE ISSUED BY THE
AUDITORS OF THE TCN GROUP
Dear Sirs
TELEWEST COMMUNICATIONS NETWORKS LIMITED
(POUND)100,000,000 LOAN FACILITY, LOAN AGREEMENT DATED O 1998
AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED OR REPLACED
(THE "LOAN AGREEMENT")
We refer to the Loan Agreement and, in accordance with our instructions, deliver
this Certificate in respect of the financial year ended 31 December [ ] pursuant
to clause 10.1(j)(a)(ii) thereof. Terms defined in the Loan Agreement shall have
the same meaning when used in this Certificate. Net Operating CashFlow shall be
defined as "NOCF".
On the basis of the consolidated audited accounts of the Borrower and Telewest
for the financial year ended 31 December [ ] and on the basis of unaudited
management accounts for the six month period ended 30 June [ ], we confirm that:
1 Consolidated TCN Group NOCF for the Six Month Period ended [ ] was [ ].
2 *Consolidated Annualised TCN Group NOCF for the Six Month Period ended
[ ], was [ ].
3 *Senior Tranche B Loan as at [ ] was [ ].
4 *Senior Facility Debt Interest Charges for the Six Month Period ended [
] was [ ].
5 *Total TCN Group Cash Paying Debt Interest Charges for the Six Month
Period ended 31 December [ ] was [ ].
6 *Consolidated Telewest Group NOCF for the Six Month Period ended [ ]
was [ ].
7 *Total Telewest Group Cash Paying Debt Interest Charges for the Six
Month Period ended [ ] was [ ].
8 **On the basis of projections provided by Telewest management,
Pro-forma Total Telewest Group Debt Service for the twelve months
commencing [ ] is [ ].
9 ****On the basis of projections provided by Telewest management,
Proforma Total TCN Group Debt Service for the twelve months commencing
[ ].
10 ***Total TCN Secured Debt for the Six Month Period ended [ ] was [ ].
===
Based on the above, we confirm that on [ ]:
(A) *Senior Tranche B Loan divided by Consolidated Annualised TCN Group
NOCF was [ x].
(B) *Consolidated TCN Group NOCF divided by Senior Facility Debt Interest
Charges was [ x].
(C) *Consolidated TCN Group NOCF divided by Total TCN Group Cash Paying
Debt Interest Charges was [ x].
(D) *Consolidated Telewest Group NOCF divided by Total Telewest Group Cash
Paying Debt Interest Charges was [ x].
(E) **Consolidated Annualised Telewest Group NOCF divided by Proforma Total
Telewest Group Debt Service was [ x].
(F) ****Consolidated Annualised TCN Group NOCF divided by Proforma Total
TCN Group Debt Service was [ x].
(G) ***Total TCN Secured Debt divided by Consolidated Annualised TCN Group
NOCF was [ x].
Based on the above, we confirm that the Borrower was in compliance with the
undertakings set out in clause 12.1(a) to (g) as at [ ].
FOR AND ON BEHALF OF
..........................................................
Auditors
* To be reported with effect from 31 March 1998
** To be reported with effect from 31 March 1999
*** To be reported with effect from 30 September 1999
**** To be reported with effect from 30 June 2000
SCHEDULE 7
FORM OF DEED OF SUBORDINATION
DATED O
TELEWEST COMMUNICATIONS PLC
and
THE TORONTO-DOMINION BANK
as Security Trustee
---------------------------------------------
DEED OF SUBORDINATION
---------------------------------------------
THIS DEED OF SUBORDINATION is dated o, 1998 and made
BETWEEN:
(1) TELEWEST COMMUNICATIONS PLC (Company No. 2983307) whose registered
office is at Genesis Business Xxxx, Xxxxxx Drive, Woking, Surrey XX00
0XX (the "CREDITOR"); and
(2) THE TORONTO-DOMINION BANK of Triton Court, 00-00 Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX in its capacity as Security Trustee for the
Beneficiaries (as defined below) (in this capacity, the "SECURITY
TRUSTEE").
WHEREAS
(A) By an agreement dated o, 1998 (as from time amended, varied, extended,
restated or replaced the "LOAN AGREEMENT") and made between Telewest
Communications Networks Limited as Borrower (1), certain Subsidiaries
of the Borrower (2), certain Associated Partnerships of the Borrower
(3), the Arrangers (4), the banks and financial institutions whose
names and addresses are set out in Part D of Schedule 1 thereto, (5)
the Agent (6) and the Security Trustee (7), the Banks agreed, upon and
subject to the terms and conditions of the Loan Agreement, to make
available to the Borrower a revolving credit facility converting to a
reducing term loan of up to(pound)100,000,000.
(B) The execution of this Deed is one of the conditions precedent to the
obligation of each Bank to make its Commitment available under the Loan
Agreement.
NOW IT IS AGREED as follows:
1 INTERPRETATION
1.1 Definitions
In this Deed, unless the context otherwise requires:
"BENEFICIARIES" has the meaning ascribed thereto in the Security Trust
Deed;
"COLLATERAL INSTRUMENTS" means the Security Documents, any guarantees
and any other documents or instruments (including, without limitation,
any other document or instrument creating or evidencing a mortgage,
charge (whether fixed or floating), pledge, lien, hypothecation,
assignment, trust arrangement or security interest of any kind) which
contain or evidence an obligation (with or without security) to pay,
discharge or be responsible directly or indirectly for any of the
Secured Liabilities under or pursuant to the Loan Agreement;
"INCAPACITY" means in relation to a person the death, bankruptcy,
insolvency, liquidation, dissolution, winding-up, administration,
receivership, amalgamation, reconstruction or other incapacity of that
person whatsoever (and, in the case of a partnership, includes the
termination or change in the composition of such partnership);
"INSOLVENCY EVENT" means, in relation to the Borrower or any of its
Subsidiaries or Associated Partnerships (other than any Immaterial
Group Entities) any of the events or circumstances described in clause
13.1(h) to (n) inclusive of the Loan Agreement;
"INSOLVENCY PROCEEDINGS" means winding-up, dissolution, liquidation,
receivership, administration, voluntary arrangements, proceedings under
Title 11 of the United States Bankruptcy Code or any proceedings in any
jurisdiction which correspond with or have an effect equivalent to any
of the same;
"LIABILITIES" means all obligations and liabilities whatsoever, whether
express or implied, whether as principal or surety, whether present or
future, actual or contingent, whether joint or several, in whatever
style, name or form and in whatever currency denominated;
"PERMITTED AMOUNTS" means all amounts which the Borrower or any of its
Subsidiaries are permitted to pay pursuant to Clauses 11.1(l), (m) and
(n) of the Loan Agreement;
"SECURED LIABILITIES" means all obligations, present, future or
contingent, joint or several, of any TCN Entity pursuant to the Loan
Agreement and/or any Security Document;
"SECURITY PROVIDER" means any person who has or may at any time
hereafter enter into a Collateral Instrument;
"SENIOR DEED OF SUBORDINATION" means the deed of subordination in a
substantially similar form to this deed entered into by the Creditor
pursuant to the Senior Loan Agreement; and
"SENIOR SECURED LIABILITIES" means all obligations, present, future or
contingent, joint or several, of any TCN Entity or Telewest pursuant to
the Senior Loan Agreement and/or any Senior Security Document.
1.2 Defined Expressions
Unless the context requires or unless otherwise defined in this Deed,
words and expressions defined in the Loan Agreement shall have the same
meaning when used in this Deed (including its Recitals).
1.3 Headings
Clause headings are inserted for convenience of reference only and
shall be ignored in the interpretation of this Deed.
1.4 Construction of certain terms
In this Deed, unless the context otherwise requires:
(a) references to clauses are to be construed as references to the clauses
of this Deed;
(b) reference to (or to any specified provision of) this Deed or any other
document shall be construed as references to this Deed, that provision
or that document as in force for the time being and as amended in
accordance with the terms thereof or, as the case may be, with the
agreement of the relevant parties and (where such consent is, by the
terms of this Deed or the relevant document, required to be obtained as
a condition to such amendment being permitted) the prior written
consent of the Agent, the Security Trustee, all of the Banks, the
Majority Banks or the Beneficiaries (as the case may be);
(c) references to a "regulation" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not
having the force of law) of any agency, authority, central bank or
government department or any self-regulatory or other national or
supra-national authority;
(d) words importing the plural shall include the singular and vice versa;
(e) references to a time of day are to London time;
(f) references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons
or any State or any agency thereof;
(g) reference to "set-off" includes retention, compensation and balancing
of accounts under Scots law;
(h) references to a "guarantee" include references to an indemnity or other
assurance against financial loss including, without limitation, an
obligation to purchase assets as a consequence of default by any other
person to pay any Indebtedness and "guaranteed" shall be construed
accordingly; and
(i) references to any enactment shall be deemed to include references to
such enactment as replaced, amended or re-enacted from time to time.
1.5 Effect as a deed
This Deed is intended to take effect as a deed notwithstanding that the
Security Trustee and/or the Creditor may have executed it under hand
only.
1.6 Successors and assigns
The expressions "BENEFICIARY", "SECURITY TRUSTEE", "BORROWER", "TCN
ENTITY", "AGENT", "Arranger", "BANK", "SECURITY PROVIDER" and
"CREDITOR" include, where the context admits, their respective
successors, permitted assigns, in the case of the Banks, their
Assignees and Substitutes, in the case of the Security Trustee such
other person as may from time to time be appointed as Security Trustee
for the Beneficiaries pursuant to the terms of the Security Trust Deed
and, in the case of the Agent, such other person as may from time to
time be appointed as Agent pursuant to clause 18.11 of the Loan
Agreement.
2 RESTRICTED PAYMENTS
The Creditor undertakes with the Security Trustee that so long as any
of the Secured Liabilities remain outstanding:
(a) it will not, and will procure that none of its Subsidiaries or
Associated Partnerships (which are not TCN Entities) demand, take,
accept or receive, by set-off or in any other manner, any Restricted
Payment other than a Permitted Amount;
(b) it will not, and will procure that none of its Subsidiaries or
Associated Partnerships (which are not TCN Entities) take, accept,
receive or permit to exist any Encumbrance over all or any part of the
present or future undertakings, assets, rights or revenues of any
member of the TCN Group to secure any Restricted Payment;
(c) it will not, and will procure that none of its Subsidiaries, or
Associated Partnerships (which are not TCN Entities) assign, transfer,
create any Encumbrance over or otherwise dispose of any Restricted
Payment other than a Permitted Amount; and
(d) it will not, and will procure that none of its Subsidiaries or
Associated Partnerships (which are not TCN Entities) commence any
proceedings against any member of the TCN Group in respect of any
Restricted Payment, (including, without limitation, any action or step
with a view to winding-up any member of the TCN Group).
3 SUBORDINATION
3.1 Insolvency Events
Upon an Insolvency Event occurring in respect of any TCN Entity:
(a) the claims of the Creditor in respect of any Restricted Payment owed by
that TCN Entity other than any Permitted Amounts shall be postponed in
all respects to the Secured Liabilities;
(b) at any time after the Senior Deed of Subordination has been terminated:
(i) the Creditor shall not, unless otherwise directed by the
Security Trustee, prove in any Insolvency Proceedings for any
Restricted Payment, other than the Permitted Amounts until the
Secured Liabilities have first been irrevocably paid or
discharged in full (and for all purposes any payment or
distribution of assets (whether in cash, property, securities
or otherwise) received by the Security Trustee or any of the
Beneficiaries shall only be taken to discharge the Secured
Liabilities to the extent of the actual amount received);
(ii) if the Creditor is directed by the Security Trustee to prove
in any Insolvency Proceedings for all or any part of any
Restricted Payment, other than any Permitted Amounts then it
shall act in accordance with such directions and shall procure
that any resultant payment or distribution of assets (whether
in cash, property, securities or otherwise) shall be made by
the liquidator of any member of the TCN Group or, as the case
may be, any other person making the payment or distribution of
assets (whether in cash, property, securities or otherwise) to
the Security Trustee to the extent necessary to repay all the
Secured Liabilities in full; and
(iii) at any time after the Senior Deed of Subordination has been
terminated the Creditor hereby irrevocably authorises and
directs the Security Trustee to submit any proof and/or to
instruct the relevant liquidator or other person to make any
payment or distribution of assets (whether in cash, property,
securities or otherwise) in accordance with the foregoing.
3.2 Payments contrary to this Deed
At any time after the Senior Deed of Subordination has been terminated
and in the event of:
(a) any payment or distribution of assets (whether in cash, property,
securities or otherwise) being made to or right of set-off being
exercised by the Creditor contrary to the provisions of this Deed; or
(b) any payment or distribution of assets (whether in cash, property,
securities or otherwise) being made by a liquidator or any other person
to the Creditor rather than to the Security Trustee as required by
clause 3.1,
the Creditor shall forthwith pay to the Security Trustee an amount
equal to the payment or distribution of assets (whether in cash,
property, securities or otherwise) which shall have been so received by
it up to an aggregate amount equal to the Secured Liabilities or, as
the case may be, in the case of set-off, an amount equal to the sum
set-off up to an aggregate amount equal to the Secured Liabilities and,
until such payment to the Security Trustee, the Creditor will hold such
sums on trust for the Security Trustee (provided that, for the
avoidance of doubt, this clause 3.2 shall not oblige the Creditor to
create any Encumbrance in favour of the Security Trustee over such
money or other property) and any sums so paid to the Security Trustee
shall be applied in accordance with the terms of the Security Trust
Deed.
3.3 Subrogation
If the Secured Liabilities are partially paid out of any proceeds
received in respect of or on account of any Restricted Payment, the
Creditor will not be subrogated to the Secured Liabilities so paid (or
any Collateral Instrument) until the Secured Liabilities have been
irrevocably paid in full.
4 CONTINUING OBLIGATIONS
4.1 Continuing obligations
The obligations of the Creditor hereunder shall be continuing
obligations and shall be and remain fully effective until this Deed is
formally released following the discharge in full of the Secured
Liabilities notwithstanding any intermediate reduction or settlement of
the Secured Liabilities or any part thereof and notwithstanding any
increase in or variation of the Secured Liabilities or any variation,
extension or supplement to the Loan Agreement or any Security
Documents.
4.2 Statements of accounts
Any statement of account of any TCN Entity, signed as correct by an
officer of the Security Trustee, showing the amount of the Secured
Liabilities shall be prima facie evidence of the amount of the Secured
Liabilities.
4.3 Continuing security and other matters
This Deed shall:
(a) secure the ultimate balance from time to time of the Secured
Liabilities and shall be a continuing security, notwithstanding any
settlement of account or other matter whatsoever;
(b) be in addition to any present or future Collateral Instrument, right or
remedy held by or available to the Security Trustee, the Beneficiaries
or any of them; and
(c) not be in any prejudiced by the existence of any such Collateral
Instrument, rights or remedies or by the same becoming wholly or in
part void, voidable or unenforceable on any ground whatsoever or by the
Security Trustee, the Beneficiaries or any of them dealing with,
exchanging, varying or failing to perfect or enforce any of the same or
giving time for payment or indulgence or compounding with the Borrower
or any Security Provider.
4.4 Liability unconditional
The liability of the Creditor shall not be affected, discharged or
reduced by reason of:
(a) the Incapacity or any change in the name, style or constitution of the
Borrower or any other Security Provider;
(b) the Security Trustee, the Beneficiaries or any of them granting any
time, indulgence or concession to, or compounding with, discharging,
releasing or varying the liability of, the Borrower or any other
Security Provider or renewing, determining, varying or increasing any
accommodation, facility or transaction or otherwise dealing with the
same in any manner whatsoever or concurring in, accepting or varying
any compromise, arrangement or settlement or omitting to claim or
enforce payment from the Borrower or any other Security Provider; or
(c) any act or omission which but for this provision might operate to
exonerate the Creditor.
4.5 Collateral Instruments
None of the Beneficiaries or the Security Trustee shall be obliged to
make any claim or demand on the Borrower or any other Security Provider
or to resort to any Collateral Instrument or other means of payment now
or hereafter held by or available to them or it before enforcing this
Deed and no action taken or omitted by the Security Trustee or any
Beneficiary in connection with any such Collateral Instrument or other
means of payment shall discharge, reduce, prejudice or affect the
liability of the Creditor under this Deed nor shall the Security
Trustee or any Beneficiary be obliged to account for any money or other
property received or recovered in consequence of any enforcement or
realisation of any such Collateral Instrument or other means of
payment.
4.6 Suspense accounts
Any money received in connection with this Deed (whether before or
after any Incapacity of the Borrower, any other Security Provider or
the Creditor) may be placed to the credit of an interest bearing
suspense account with a view to preserving the rights of the Security
Trustee and each Beneficiary to prove for the whole of their respective
claims against the Borrower or any other person liable or may be
applied in or towards satisfaction of such of the Secured Liabilities
as the Security Trustee may from time to time determine in accordance
with the terms of the Security Trust Deed (which determination shall,
save in the case of manifest error, be conclusive). Interest shall
accrue on monies from time to time standing to the credit of any
suspense account at the rate agreed between the Security Trustee and
the Creditor at the relevant time or, failing such agreement, the
Security Trustee's overnight deposit rate from time to time and shall
be credited to such suspense account or may be applied in or towards
satisfaction of such of the Secured Liabilities as the Security Trustee
may from time to time determine in accordance with the terms of the
Security Trust Deed (which determination shall, save in the case of
manifest error, be conclusive).
4.7 Settlements conditional
Any release, discharge or settlement between the Creditor and the
Security Trustee or any of the Beneficiaries shall be conditional upon
no security, disposition or payment to the Security Trustee, or any of
the Beneficiaries by the Borrower or any other person liable being
void, set aside or ordered to be refunded pursuant to any enactment or
law relating to bankruptcy, liquidation, administration or insolvency
or for any other reason whatsoever and if such condition shall not be
fulfilled the Security Trustee shall be entitled to enforce this Deed
subsequently as if such release, discharge or settlement had not
occurred and any such payment had not been made.
4.8 Retention of this Deed
Notwithstanding any other provision of this Deed, this Deed shall not
be released, the Security Trustee shall be entitled to retain this Deed
and all the provisions of this Deed shall remain in full force and
effect until the irrevocable payment or discharge in full of all the
Secured Liabilities. Following the irrevocable payment or discharge in
full of all the Secured Liabilities, the Security Trustee shall
forthwith release this Deed (and to effect or evidence such release
shall execute such documents (at the cost of the Creditor) as the
Creditor may reasonably require) and deliver this Deed, together with
such documents, to the Creditor.
5 REPRESENTATIONS AND WARRANTIES
5.1 Representation and warranties
The Creditor represents and warrants to the Security Trustee that:
(a) Due Incorporation
it is duly incorporated, validly existing as a limited
liability company and has all requisite corporate power and
authority to own its property and other assets and to carry on
its business as it is now being conducted and is authorised to
do business in each jurisdiction where such qualification or
authorisation is required, except where the failure to so
qualify, to be so authorised or to be in good standing would
not have a material adverse effect on the ability of the
Creditor to perform any of its obligations under this Deed;
(b) Power of the Creditor
the Creditor has all requisite power to execute, deliver and
perform its obligations under this Deed and compliance has
been made with all necessary requirements and all necessary
action has been taken to authorise the execution, delivery and
performance of the same;
(c) Binding obligations
this Deed constitutes valid and legally binding obligations of
the Creditor enforceable in accordance with its terms subject
to the qualifications contained in the legal opinions referred
to in schedule 3 to the Loan Agreement which relate to this
Deed and for this purpose any statement contained in the
qualifications to any such legal opinion which relate to this
Deed that no opinion is given or expressed in relation to any
particular matter shall be deemed to be a qualification of
such opinion as regards such matter;
(d) No conflict with other obligations
the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, this
Deed by the Creditor, will not (i) contravene any existing
applicable law, statute, rule or regulation or any judgment,
decree or permit to which the Creditor is subject except where
such contravention would not or would not be likely to have a
material adverse effect on the ability of the Creditor to
perform any of its obligations under or otherwise to comply
with the terms of this Deed, (ii) contravene or conflict with
any provision of the Memorandum and Articles of Association of
the Creditor, (iii) breach any term of the Licences or the
Necessary Authorisations, (iv) conflict with, or result in any
breach of any of the terms of, or constitute a default under,
any agreement to which the Creditor is a party or is subject
or by which it or any of its property is bound except where
such breach or default would not or would not be likely to
have a material adverse effect on the ability of the Creditor
to perform any of its obligations under or otherwise to comply
with the terms of this Deed or (v) result in the creation or
imposition of or oblige the Creditor to create any Encumbrance
(other than those created by the Security Documents) on any of
the Creditor's material undertakings, assets, rights or
revenues;
(e) No litigation
no litigation, arbitration or administrative proceeding is
taking place, pending or, to the knowledge of the officers of
the Creditor threatened against the Creditor which would or is
reasonably likely to have a material adverse effect on the
ability of the Creditor to fulfil its obligations under this
Deed;
(f) No filing required
it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Deed that
this Deed or any other instrument be notarised, filed,
recorded, registered or enrolled in any court or public office
in the United Kingdom or that any stamp, registration or
similar tax or charge be paid in the United Kingdom on or in
relation to this Deed;
(g) Choice of law
the choice by the Creditor of English law to govern this Deed
is valid and binding;
(h) Consents obtained
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public
bodies or authorities or courts required by the Creditor (i)
to authorise the execution and delivery of this Deed or the
performance by the Creditor of its obligations under this Deed
or (ii) to ensure the validity, enforceability or
admissibility in evidence of this Deed or the performance by
the Creditor of its obligations under this Deed has been
obtained or made and is in full force and effect and there has
been no material default in the observance of the conditions
or restrictions (if any) imposed in, or in connection with,
any of the same which would, in any such case, adversely
affect the execution, delivery, validity, enforceability or
admissibility in evidence of this Deed or the performance by
the Creditor of its obligations under this Deed.
5.2 Repetition
The representations and warranties in clause 5.1 shall be deemed to be
repeated by the Creditor in respect of itself and its Subsidiaries on
and as of each Interest Payment Date and the date on which each
Revolving Advance is made under the Loan Agreement.
6 COVENANTS
6.1 Covenants by Telewest
The Creditor hereby undertakes with the Security Trustee that from the
date of this Deed and so long as any of the Secured Obligations remain
outstanding or any Beneficiary remains under any commitment to any TCN
Entity:
(a) New Debt
all Borrowed Money (excluding, for the avoidance of doubt, any
security given by Telewest pursuant to the Senior Loan
Agreement) incurred or assumed by the Creditor after the date
of the Loan Agreement (herein "NEW DEBT") will have a
contractual maturity date falling not earlier than 1 January
2007 (and will be on terms which would not reasonably be
considered by the Agent (acting on the instructions of the
Majority Banks) to be materially more onerous than the terms
currently applying to existing Senior Securities) except for:
(i) Finance Leases where the asset in question has been
sub-Finance Leased by Telewest to a TCN Entity and
such sub-Finance Lease falls within paragraph (v) of
the definition of Permitted Borrowings;
(ii) Borrowed Money where (a) the lender is a TCN Entity
and (b) the relevant payment by the TCN Entity in
question is a Permitted Payment;
(iii) Borrowed Money comprising a guarantee or indemnity of
any obligations of a TCN Entity;
(iv) Borrowed Money comprising a guarantee or indemnity
issued or to be issued by the Creditor in favour of a
bank in relation to a bond issued by such bank in
favour of any regulatory body or other person
pursuant to any Telecommunications and Cable Laws in
an aggregate amount not exceeding (pound)1,250,000;
(v) Borrowed Money resulting from a refinancing of any
Borrowed Money of the Creditor outstanding at the
date hereof provided that the principal amount
thereof is not increased, the term thereof is not
decreased and the terms and conditions thereof taken
as a whole (taking into account the pricing,
covenants (unless Telewest shall have entered into
covenants in substantially the same form with or for
the benefit of the Banks) and term) are not
materially more onerous than the terms applying to
the existing Borrowed Money;
(vi) any hedging entered into (1) in compliance with
paragraph (g) below, (2) in connection with any
Borrowed Money falling within paragraph (v) of this
clause 6.1(a) or (3) in connection with any Borrowed
Money having a contractual maturity date falling not
earlier than 1 January 2007; and
(vii) any Borrowed Money not within sub-paragraphs (i) to
(vi) (inclusive) above and not exceeding in aggregate
(pound)5,000,000;
(b) Change to Senior Securities
to ensure that there is no change to the terms and conditions
of the Senior Securities which would reasonably be considered
to be materially adverse by the Agent (acting on the
instructions of the Majority Banks).
(c) Nature of Acquisitions
not to make any acquisitions of any companies or businesses
other than those engaged in the cable/telecommunications
business, any television and/or licensing business or any
programming guide or telephone directory business.
The above prohibition will cease and shall have no further
effect on the first occasion upon which the ratio of Total
Telewest Group Debt to Consolidated Annualised Telewest Group
Operating Cash Flow is or is less than 5 to 1.
(d) Adequacy of finance
to ensure that for a period of at least 18 months following
the acquisition by any Restricted Person of a cable television
and/or telecommunications franchise adequate monies are
available to the relevant Restricted Person to finance the
working capital and capital expenditure requirements of such
franchise.
(e) Financial Information
to provide to the Agent copies of all circulars, statements
and other information about the Creditor at the time that the
same is made generally available by the Creditor to the public
or to the shareholders of the Creditor, including, without
limitation, Forms 10K and 10Q (and any equivalent replacement
thereof) for the Telewest Group.
(f) Hedging
to maintain foreign exchange arrangements in relation to the
Senior Securities which cap the Sterling amount of the
liabilities under the Senior Securities at no more than the
maximum sterling amount payable under the hedging arrangements
in place at the date hereof in relation to the Senior
Securities.
(g) Borrower to be wholly-owned
to ensure that the Borrower remains its wholly-owned and
controlled Subsidiary.
7 BENEFIT OF THIS DEED
7.1 Benefit and burden
This Deed shall be binding upon the Creditor and its successors in
title and shall enure for the benefit of the Security Trustee (and any
successor Security Trustee appointed pursuant to the provisions of the
Security Trust Deed) and their respective successors for the benefit of
the Beneficiaries in accordance with the provisions of the Security
Trust Deed.
7.2 Changes in constitution or reorganisation of Banks
For the avoidance of doubt and without prejudice to the provisions of
clause 7.1, this Deed shall remain binding on the Creditor
notwithstanding any change in the constitution of the Security Trustee
or any of the Beneficiaries or their or its absorption in, or
amalgamation with, or the acquisition of all or part of their or its
undertaking or assets by, any other person, or any reconstruction or
reorganisation of any kind, to the intent that this Deed shall remain
valid and effective in all respects in favour of the Security Trustee
(and any successor Security Trustee appointed pursuant to the
provisions of the Security Trust Deed and their respective successors
in title) as trustee for the Beneficiaries and any assignee, transferee
or other successor in title of a Beneficiary.
7.3 No assignment by the Creditor
The Creditor may not assign or transfer any of its rights or
obligations under this Deed.
7.4 The Security Trust Deed
The Creditor and the Security Trustee hereby acknowledge that the
covenants of the Creditor contained in this Deed and the rights
constituted by this Deed and all moneys, property and assets paid to,
or held, received or recovered by the Security Trustee pursuant to or
in connection with this Deed are held by the Security Trustee subject
to and on the terms of the trusts declared in the Security Trust Deed.
8 NOTICES AND OTHER MATTERS
8.1 Notices
Every notice, request, demand or other communication under this Deed
shall be given in accordance with clause 19.1(a) and (b) of the Loan
Agreement and shall be sent to the Creditor at its address set out
above (facsimile number: 01483 750901) or to the Security Trustee at
its address or telex or facsimile number set out in clause 19.1(c)(ii)
of the Loan Agreement or to such other address or such telex or
facsimile number as is notified by one party to this Deed to the other.
8.2 No implied waivers, remedies cumulative
No failure or delay on the part of the Security Trustee or the
Beneficiaries (or any of them) to exercise any power, right or remedy
under this Deed shall operate as a waiver thereof, nor shall any single
or partial exercise by the Security Trustee or the Beneficiaries (or
any of them) of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in this Deed are cumulative and are not
exclusive of any remedies provided by law.
8.3 Other Collateral Instruments
The Creditor agrees to be bound by this Deed notwithstanding that any
other person intended to execute or to be bound by any Collateral
Instrument may not do so or may not be effectively bound and
notwithstanding that such other Collateral Instrument may be determined
or be or become invalid or unenforceable against any other person,
whether or not the deficiency is known to the Security Trustee or any
of the Beneficiaries.
8.4 Severability
Each of the provisions of this Deed is severable and distinct from one
another and if at any time one or more of such provisions is or becomes
illegal, invalid or unenforceable under any applicable law the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
9 LAW AND JURISDICTION
9.1 Governing Law
This Deed is governed by and shall be construed in accordance with
English law.
IN WITNESS whereof the parties to this Deed have caused this Deed to be duly
executed on the date first above written.
EXECUTED by
TELEWEST COMMUNICATIONS PLC
By:
XXXXXXX XXXXXXX
.............................
Director
XXXXXX XXXXX
..............................
Director/Secretary
Signed for and on behalf of )
THE TORONTO-DOMINION BANK )
by: )
SCHEDULE 8
ENCUMBRANCES
COMPANY/PARTNERSHIP ENCUMBRANCE
(A) Telewest Communications (i) Mortgage of deposited moneys dated 21st January,
(South East) Limited (formerly 1994 with Electricity Supply Nominees Limited.
known as United Artists
Communications (South East)
Limited)
(ii) Deed of Variation and Further Charge dated 26th
June, 1995 with Electricity Supply Nominees Limited.
(B) Telewest Communications Legal charges dated 9 October, 1991 in favour of Barclays
(South West) Limited (formerly Bank Plc over Xxxxx 000 xxx 000 Xxxxx Xxxx, Xxxxxxxxxxx.
known as United Artists
Communications (Avon) Limited)
(C) Telewest Communications Mortgage dated 23 March, 1992 in favour of National
(London South) Limited (formerly Westminster Bank Plc over Xxxxxxx Commercial Centre, New
known as United Artists Malden.
Communications (London South)
Limited)
(D) Avon Cable Partnership Mortgage dated 4 October, 1993 in favour of Barclays Bank
Plc over Xxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxx.
(E) Telewest Communications Mortgage of Shares in Cable London PLC dated 29 September,
Holdings Limited (formerly known 1995 with Canadian Imperial Bank of Commerce.
as Telewest Holdings Limited)
(F) Telewest Communications Standard Security granted or to be granted over premises at
(Motherwell) Limited (formerly Xxxxxxxx Park Industrial Estate, Uddingston in favour of
known as Scotcable (Motherwell) British Linen Bank Limited.
Limited)
SCHEDULE 9
PART A
THE AVON LICENCES
Telecommunications Act 1984 Licence:
====================================== ==================================== ===================================
Licence Holder Licence Area Date of Grant
====================================== ==================================== ===================================
Telewest Communications (South West) Avon 05.12.89
Limited
====================================== ==================================== ===================================
Broadcasting Act 1990 - Local Delivery Licence:
====================================== ==================================== ===================================
Licence Holder Licence No. Licence Area Date of Grant
====================================== ==================================== ===================================
Telewest Communications (South West) LDS005 Avon 16.10.91
Limited
====================================== ================= ================== ===================================
Telewest Communications (Taunton and XXX000 Xxxxxxx and 2.9.97
Bridgewater) Limited Bridgewater
====================================== ================= ================== ===================================
PART B
THE COTSWOLDS LICENCES
Telecommunications Act 1984 Licence:
======================================= ================================== ===============================
LICENCE HOLDER LICENCE AREA DATE OF GRANT
======================================= ================================== ===============================
Telewest Communications (Cotswolds) Cheltenham and Gloucester 26.08.88
Limited
======================================= ================================== ===============================
Broadcasting Act 1990 - Local Delivery Licence:
============================= =========================== ========================== ===========================
LICENCE HOLDER LICENCE NO. LICENCE AREA DATE OF GRANT
============================= =========================== ========================== ===========================
Telewest Communications XXX000 Xxxxxxxxxx and Gloucester 16.10.91
(Cotswolds) Limited
============================= =========================== ========================== ===========================
PART C
THE LONDON SOUTH LICENCES
Telecommunications Act 1984 Licence:
====================================== ==================================== ===================================
Licence Holder Licence Area Date Of Grant
====================================== ==================================== ===================================
Telewest Communications (London Croydon 14.01.94
South) Limited Kingston and Richmond 08.05.90
Merton and Xxxxxx 23.01.90
====================================== ==================================== ===================================
Cable and Broadcasting Xxx 0000 - Prescribed Diffusion Service Licences:
====================================== ==================== ====================== ============================
Licence Holder Licence No. Licence Area Date of Grant
====================================== ==================== ====================== ============================
Telewest Communications (London XXXX000 Xxxxxx and Xxxxxx 15.03.90
South) Limited
PDSL109 Kingston and Richmond 03.12.90
====================================== ==================== ====================== ============================
Broadcasting Act 1990 - Local Delivery Licence:
====================================== ==================== ====================== ============================
Licence Holder Licence No. Licence Area Date of Grant
====================================== ==================== ====================== ============================
Telewest Communications (London XXX000 Xxxxxxx 16.10.91
South) Limited
====================================== ==================== ====================== ============================
PART D
THE NORTH EAST LICENCES
Telecommunications Act 1984 Licence:
======================================= ================================== ===============================
LICENCE HOLDER LICENCE AREA DATE OF GRANT
======================================= ================================== ===============================
Telewest Communications (North East) Tyneside 26.04.91
Partnership
======================================= ================================== ===============================
Cable and Broadcasting Xxx 0000 - Prescribed Diffusion Service Licence:
============================= =========================== ========================== ===========================
LICENCE HOLDER LICENCE NO. LICENCE AREA DATE OF GRANT
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxxxxx 03.09.90
(North East) Limited
============================= =========================== ========================== ===========================
PART E
THE SCOTLAND LICENCES
Telecommunications Act 1984 Licence:
====================================== ==================================== ===================================
Licence Holder Licence Area Date of Grant
====================================== ==================================== ===================================
Telewest Communications (Scotland) Edinburgh 20.12.90
Limited
====================================== ==================================== ===================================
Telecommunications Act 1984 Licences (cont.):
====================================== ==================================== ===================================
Licence Holder Licence Area Date of Grant
====================================== ==================================== ===================================
Telewest Communications Cumbernauld and Monklands 18.01.90
(Cumbernauld) Limited
====================================== ==================================== ===================================
Telewest Communications (Dumbarton) Dumbarton 18.01.90
Limited
====================================== ==================================== ===================================
Telewest Communications (Dundee & Dundee 17.01.91
Perth) Limited Perth 17.01.91
====================================== ==================================== ===================================
Telewest Communications (Falkirk) Falkirk and Xxxxxxxxxxx 11.11.90
Limited
====================================== ==================================== ===================================
Telewest Communications (Glenrothes) Glenrothes and Kirkcaldy 18.04.91
Limited
====================================== ==================================== ===================================
Telewest Communications (Motherwell) Motherwell, Xxxxxxxx and East 18.01.90
Limited Kilbride
====================================== ==================================== ===================================
Cable and Broadcasting Xxx 0000 - Prescribed Diffusion Service Licences:
============================= =========================== ========================== ===========================
Licence Holder Licence No. Licence Area Date of Grant
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Cumbernauld and Monkland 03.12.90
(Cumbernauld) Limited
============================= =========================== ========================== ===========================
Telewest Communications PDSL 117 Dumbarton 03.12.90
(Dumbarton) Limited
============================= =========================== ========================== ===========================
Telewest Communications PDSL 069 Dundee 03.12.90
(Dundee & Perth) Limited XXXX 000 Xxxxx 03.12.90
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxxxx and Xxxxxxxxxxx 03.12.90
(Falkirk) Limited
============================= =========================== ========================== ===========================
Telewest Communications PDSL 064 Glenrothes and Kirkcaldy 03.12.90
(Glenrothes) Limited
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxxxxxxx, Xxxxxxxx and 03.12.90
(Motherwell) Limited East Kilbride
============================= =========================== ========================== ===========================
Broadcasting Act 1990 - Local Delivery Licence:
====================================== ======================= ========================= ======================
Licence Holder Licence No. Licence Area Date of Grant
====================================== ======================= ========================= ======================
Telewest Communications (Scotland) LDS 008 Edinburgh 16.10.91
Limited
====================================== ======================= ========================= ======================
Telewest Communications (East LDS 038 East Lothian 29.7.97
Lothian and Fife) Limited
====================================== ======================= ========================= ======================
PART F
THE SOUTH EAST LICENCES
Telecommunications Act 1984 Licences:
======================================= ================================== ===============================
LICENCE HOLDER LICENCE AREA DATE OF GRANT
======================================= ================================== ===============================
Telewest Communications (South East) Basildon, Brentwood and 14.11.90
Limited Chelmsford
======================================= ================================== ===============================
Telewest Communications (South Thames Chatham, Gillingham, Gravesend, 30.11.90
Estuary) Limited Maidstone, Northfleet, Rochester
and Sittingbourne
======================================= ================================== ===============================
Broadcasting Act 1990 - Local Delivery Licences:
============================= =========================== ========================== ===========================
LICENCE HOLDER LICENCE NO. LICENCE AREA DATE OF GRANT
============================= =========================== ========================== ===========================
Telewest Communications LDS006 Basildon, Brentwood and 16.10.91
(South East) Limited Chelmsford
============================= =========================== ========================== ===========================
Telewest Communications LDS007 Chatham, Gillingham, 16.10.91
(South Thames Estuary) Gravesend, Maidstone,
Limited Northfleet, Rochester
and Sittingbourne
============================= =========================== ========================== ===========================
PART G
THE SBCC LICENCES
Telecommunications Act 1984 Licences:
======================================= ================================== ===============================
LICENCE HOLDER LICENCE AREA DATE OF GRANT
======================================= ================================== ===============================
Telewest Communications (Liverpool) Merseyside 14.10.89
Limited
======================================= ================================== ===============================
Telewest Communications (Liverpool) North Liverpool and Sefton 30.11.90
Limited
======================================= ================================== ===============================
Telewest Communications (St Helens & St Helens and Knowsley 08.12.90
Knowsley) Limited
======================================= ================================== ===============================
Telewest Communications (Wigan) Wigan 14.11.90
Limited
======================================= ================================== ===============================
Telewest Communications (Central Central Lancashire 14.10.89
Lancashire) Limited
======================================= ================================== ===============================
Telewest Communications (Telford) Telford 12.04.91
Limited
======================================= ================================== ===============================
Telewest Communications (Midlands) Black Country 25.01.91
Limited
======================================= ================================== ===============================
Telewest Communications (Southport) Southport 19.12.96
Limited
======================================= ================================== ===============================
Telewest Communications Fylde and Fylde and Wyre 19.12.96
Wyre Limited
======================================= ================================== ===============================
Telewest Communications (Worcester) Worcester 25.9.93
Limited
======================================= ================================== ===============================
Cable and Broadcasting Xxx 0000 - Prescribed Diffusion Service Licences:
============================= =========================== ========================== ===========================
LICENCE HOLDER LICENCE NO. LICENCE AREA DATE OF GRANT
============================= =========================== ========================== ===========================
Telewest Communications PDSL 007 Merseyside 14.09.84
(Liverpool) Limited
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxx Xxxxxxxxx and 03.12.90
(Liverpool) Limited Sefton
============================= =========================== ========================== ===========================
Telewest Communications (St PDSL 000 Xx Xxxxxx and Knowsley 03.12.90
Helens & Knowsley) Limited
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxx 03.12.90
(Wigan) Limited
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxxxx Xxxxxxxxxx 17.10.89
(Central Lancashire) Limited
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxxxx 03.12.90
(Telford) Limited
============================= =========================== ========================== ===========================
Telewest Communications PSDL 131 Black Country 03.12.90
(Midlands) Limited
============================= =========================== ========================== ===========================
Telewest Communications XXXX 000 Xxxxxxxxx 31.12.90
(Worcester) Limited
============================= =========================== ========================== ===========================
Broadcasting Act 1990 - Local Delivery Licence:
============================= =========================== ========================== ===========================
LICENCE HOLDER LICENCE NO. LICENCE AREA DATE OF GRANT
============================= =========================== ========================== ===========================
Cable Communications (Fylde LDS 011 Fylde and Wyre 16.12.94
& Wyre) Limited
============================= =========================== ========================== ===========================
Telewest Communications LDS 029 Southport 19.1.98
(Southport) Limited
============================= =========================== ========================== ===========================
PART H
THE NATIONAL NETWORK LICENCE
Telecommunications Act 1984 Licence
============================= =========================== ========================== ===========================
LICENCE HOLDER LICENCE NO. LICENCE AREA DATE OF GRANT
============================= =========================== ========================== ===========================
Telewest Communications plc Out of Area 14.1.97
============================= =========================== ========================== ===========================
SCHEDULE 10
PRINCIPAL AGREEMENTS
PART A
BT INTERCONNECT AGREEMENTS
(i) First Supplemental Agreement dated 18 August 1997 between (1) Various
Operators (Telewest) and (2) British Telecommunications Plc;
(ii) Network Charge Control Supplementary Agreement dated 20 October 1997
between (1) Telewest Group and (2) British Telecommunications Plc;
(iii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Central Lancashire) Limited and (2) British
Telecommunications Plc relating to the Preston franchise;
(iv) Interconnection Agreement dated 26 July 1996 between (1) Telewest
Communications (Cotswolds) Limited and (2) British Telecommunications
Plc relating to the Cheltenham and Gloucester franchise;
(v) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Cumbernauld) Limited and (2) British Telecommunications
Plc;
(vi) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Dumbarton) Limited and (2) British Telecommunications
Plc;
(vii) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Dundee & Perth) Limited and (2) British
Telecommunications Plc relating to the Dundee and Broughty Ferry
franchise;
(viii) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Scotland) Limited and (2) British Telecommunications
Plc relating to the Edinburgh franchise;
(ix) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Falkirk) Limited and (2) British Telecommunications Plc
relating to the Falkirk and West Lothian franchise;
(x) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Glenrothes) Limited and (2) British Telecommunications
Plc relating to the Glenrothes, Kirkcaldy and Leven franchise;
(xi) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Liverpool) Limited and (2) British Telecommunications
Plc relating to the Liverpool South franchise;
(xii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Liverpool) Limited and (2) British Telecommunications
Plc relating to the Liverpool North, Sefton and Bootle franchise;
(xiii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (London South) Limited and (2) British
Telecommunications Plc relating to the Croydon franchise;
(xiv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (London South) Limited and (2) British
Telecommunications Plc relating to the Kingston and Richmond franchise;
(xv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (London South) Limited and (2) British
Telecommunications Plc relating to the Merton and Xxxxxx franchise;
(xvi) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Midlands) Limited and (2) British Telecommunications
Plc relating to the Xxxxxx, Wolverhampton and Black Country franchises;
(xvii) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Motherwell) Limited and (2) British Telecommunications
Plc relating to the Motherwell and Xxxxxxxx franchise;
(xviii) Interconnection Agreement dated 1 September 1996 between (1) Telewest
Communications (North East) Limited and (2) British Telecommunications
Plc relating to the Newcastle and Gateshead franchise;
(xix) Interconnection Agreement dated 22 August 1996 between (1) Telewest
Communications (Dundee & Perth) Limited and (2) British
Telecommunications Plc relating to the Perth and Scone franchise;
(xx) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (South Thames Estuary) Limited and (2) British
Telecommunications Plc relating to the Gravesend and Rochester
franchise;
(xxi) Interconnection Agreement dated 26 July 1996 between (1) Telewest
Communications (South West) Limited and (2) British Telecommunications
Plc relating to the Bristol, Bath and Weston franchise;
(xxii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (South East) Limited and (2) British Telecommunications
Plc relating to the Basildon and Southend franchise;
(xxiii) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (St. Helens & Knowsley) Limited and (2) British
Telecommunications Plc;
(xxiv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Telford) Limited and (2) British Telecommunications
Plc;
(xxv) Interconnection Agreement dated 26 September 1996 between (1) Telewest
Communications (Wigan) Limited and (2) British Telecommunications Plc;
(xxvi) Multiple systems Operator Agreement dated 23 December 1996 between (1)
British Telecommunications plc and (2) SBC CableComms (UK) Limited
(renamed Telewest Communications (Midlands and North West) Limited);
(xxvii) Interconnection Agreement dated 15 January 1997 between (1) Telewest
Communications Plc and (2) British Telecommunications Plc amending
(i)-(xxvi) above.
PART B
SKY STANDARD CABLE OPERATOR AGREEMENTS
(i) Standard Cable Operator Agreement dated 25 February 1993 made between
Sky Television Plc, British Sky Broadcasting Limited, Telewest
Communications Group Limited and certain other companies party thereto;
(ii) Standard Cable Operator Agreement dated 30 April 1995 made between
British Sky Broadcasting Limited, British Sky Broadcasting Group Plc,
Telewest Communications plc and the other companies party thereto as
amended by all or any of the following:
(A) letter from Telewest to BSkyB dated 27 June 1995,
(B) letter to British Sky Broadcasting Limited and British Sky
Broadcasting Group Plc from Telewest Communications plc dated
25 May 1995, and
(C) undated letter from British Sky Broadcasting Limited and
British Sky Broadcasting Group Plc to Telewest Communications
Plc; and
(iii) Unsigned/undated agreement between British Sky Broadcasting Limited,
Sky Television Limited, SBC Cablecomms UK and certain other companies
party thereto.
THE BORROWER
SIGNED for and on behalf of )
TELEWEST COMMUNICATIONS ) XXXXXXX XXXXXXX
NETWORKS LIMITED )
THE ORIGINAL CHARGING SUBSIDIARIES
SIGNED for and on behalf of each of
TELEWEST COMMUNICATIONS GROUP LIMITED
TELEWEST COMMUNICATIONS CABLE LIMITED
TELEWEST COMMUNICATIONS HOLDINGS LIMITED
TELEWEST PARLIAMENTARY HOLDINGS LIMITED
THESEUS NO. 1 LIMITED
THESEUS NO. 2 LIMITED
THE CABLE EQUIPMENT STORE LIMITED
TELEWEST COMMUNICATIONS (COTSWOLDS) LIMITED
TELEWEST COMMUNICATIONS (NOMINEES) LIMITED
TELEWEST COMMUNICATIONS (NORTH EAST) LIMITED
TELEWEST COMMUNICATIONS (SOUTH EAST) LIMITED
TELEWEST COMMUNICATIONS (SOUTH THAMES ESTUARY) LIMITED
TELEWEST COMMUNICATIONS (TYNESIDE) LIMITED
TELEWEST COMMUNICATIONS (MIDLANDS AND NORTH WEST) LIMITED
SOUTHWESTERN XXXX INTERNATIONAL HOLDINGS LIMITED
TELEWEST COMMUNICATIONS (MIDLANDS) LIMITED
TELEWEST COMMUNICATIONS (TELFORD) LIMITED
TELEWEST COMMUNICATIONS (NORTH WEST) LIMITED
TELEWEST COMMUNICATIONS (WIGAN) LIMITED
TELEWEST COMMUNICATIONS (CENTRAL LANCASHIRE) LIMITED
TELEWEST COMMUNICATIONS (LIVERPOOL) LIMITED
TELEWEST COMMUNICATIONS (ST HELENS & KNOWSLEY) LIMITED
TELEWEST COMMUNICATIONS (EAST LOTHIAN & FIFE) LIMITED
TELEWEST COMMUNICATIONS (LONDON SOUTH) LIMITED
TELEWEST COMMUNICATIONS (SOUTH WEST) LIMITED
TELEWEST COMMUNICATIONS (DUNDEE & PERTH) LIMITED
TELEWEST COMMUNICATIONS (GLENROTHES) LIMITED
TELEWEST COMMUNICATIONS (MOTHERWELL) LIMITED
TELEWEST COMMUNICATIONS (CUMBERNAULD) LIMITED
TELEWEST COMMUNICATIONS (DUMBARTON) LIMITED
TELEWEST COMMUNICATIONS (FALKIRK) LIMITED
TELEWEST COMMUNICATIONS (SCOTLAND) LIMITED
TELEWEST COMMUNICATIONS (SCOTLAND HOLDINGS) LIMITED
TELEWEST COMMUNICATIONS (INTERNET) LIMITED
TELEWEST COMMUNICATIONS (SOUTHPORT) LIMITED
CRYSTAL PALACE RADIO LIMITED
AVON CABLE INVESTMENTS LTD
TELEWEST COMMUNICATIONS (WORCESTER) LIMITED
BY: XXXXXXX XXXXXXX
THE ORIGINAL CHARGING PARTNERSHIPS
SIGNED for and on behalf of each of
COTSWOLDS CABLE LIMITED PARTNERSHIP
ESTUARIES CABLE LIMITED PARTNERSHIP
TYNESIDE CABLE LIMITED PARTNERSHIP
EDINBURGH CABLE LIMITED PARTNERSHIP
AVON CABLE LIMITED PARTNERSHIP
UNITED CABLE (LONDON SOUTH) LIMITED PARTNERSHIP
TCI/US WEST CABLE COMMUNICATIONS GROUP
by their general partner
THESEUS NO. 1 LIMITED: XXXXXXX XXXXXXX
and by their general partner
THESEUS NO. 2 LIMITED: XXXXXXX XXXXXXX
SIGNED for and on behalf of the partners of
LONDON SOUTH CABLE PARTNERSHIP
by the following:
Signed for and on behalf of its managing partner
UNITED CABLE (LONDON SOUTH) LIMITED PARTNERSHIP
by its general partner
THESEUS NO.1 LIMITED: XXXXXXX XXXXXXX
and by its general partner
THESEUS NO.2 LIMITED: XXXXXXX XXXXXXX
Signed by
CRYSTAL PALACE RADIO LIMITED: XXXXXXX XXXXXXX
SIGNED for and on behalf of the partners of
TELEWEST COMMUNICATIONS
(SOUTH EAST) PARTNERSHIP
by the following:
Signed for and on behalf of
ESTUARIES CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: XXXXXXX XXXXXXX
and by its general partner
THESEUS NO. 2 LIMITED: XXXXXXX XXXXXXX
Signed by
TELEWEST COMMUNICATIONS
(SOUTH EAST) LIMITED: XXXXXXX XXXXXXX
Signed by
TELEWEST COMMUNICATIONS
(SOUTH THAMES ESTUARY) LIMITED: XXXXXXX XXXXXXX
SIGNED for and on behalf of the partners of
TELEWEST COMMUNICATIONS
(NORTH EAST) PARTNERSHIP
by the following:
Signed for and on behalf of
TYNESIDE CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: XXXXXXX XXXXXXX
and by its general partner
THESEUS NO. 2 LIMITED: XXXXXXX XXXXXXX
Signed by
TELEWEST COMMUNICATIONS
(NORTH EAST) LIMITED: XXXXXXX XXXXXXX
Signed by
TELEWEST COMMUNICATIONS
(TYNESIDE) LIMITED: XXXXXXX XXXXXXX
SIGNED for and on behalf of the partners of
AVON CABLE JOINT VENTURE
by the following: XXXXXXX XXXXXXX
Signed for and on behalf of
AVON CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: XXXXXXX XXXXXXX
and by its general partner
THESEUS NO. 2 LIMITED: XXXXXXX XXXXXXX
Signed by
TELEWEST COMMUNICATIONS
(SOUTH WEST) LIMITED: XXXXXXX XXXXXXX
SIGNED for and on behalf of the partners of
TELEWEST (LONDON SOUTH) JOINT VENTURE
by the following:
Signed for and on behalf of
LONDON SOUTH CABLE PARTNERSHIP by its
managing partner
UNITED CABLE (LONDON SOUTH) LIMITED PARTNERSHIP by its
general partner
THESEUS NO. 1 LIMITED: XXXXXXX XXXXXXX
and by its general partner
THESEUS NO. 2 LIMITED: XXXXXXX XXXXXXX
Signed for and on behalf of
TELEWEST COMMUNICATIONS
(LONDON SOUTH) LIMITED: XXXXXXX XXXXXXX
SIGNED for and on behalf of the partners of
TELEWEST COMMUNICATIONS
(COTSWOLDS) VENTURE
by the following:
Signed for and on behalf of
COTSWOLDS CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: XXXXXXX XXXXXXX
and by its general partner
THESEUS NO. 2 LIMITED: XXXXXXX XXXXXXX
Signed by
TELEWEST COMMUNICATIONS XXXXXXX XXXXXXX
(COTSWOLDS) LIMITED:
SIGNED for and on behalf of
TELEWEST COMMUNICATIONS
(SCOTLAND) VENTURE
by the following:
Signed for and on behalf of
EDINBURGH CABLE LIMITED PARTNERSHIP
by its general partner
THESEUS NO. 1 LIMITED: XXXXXXX XXXXXXX
and by its general partner
THESEUS NO. 2 LIMITED: XXXXXXX XXXXXXX
Signed for and on behalf of
TELEWEST COMMUNICATIONS
(SCOTLAND) LIMITED: XXXXXXX XXXXXXX
THE ARRANGERS
SIGNED for and on behalf of
THE BANK OF NEW YORK
by: XXXXXX XXXXXX
SIGNED for and on behalf of
CIBC WOOD GUNDY PLC
by: XXXXXX XXXX
SIGNED for and on behalf of
CHASE MANHATTAN PLC
by: XXXXXXX XXXXX
SIGNED for and on behalf of
GREENWICH NATWEST
by: XXXX XXXXXXXX
SIGNED for and on behalf of
THE TORONTO-DOMINION BANK
by: XXXXXX XXXXX
THE BANKS AND FINANCIAL INSTITUTIONS
SIGNED for and on behalf of
THE BANK OF NEW YORK COMPANY, INC.
by: XXXXXXX XXXXX
SIGNED for and on behalf of
CIBC WOOD GUNDY PLC
by: XXXXXX XXXX
SIGNED for and on behalf of
THE CHASE MANHATTAN BANK
by: XXXXXXX XXXXX
SIGNED for and on behalf of
NATIONAL WESTMINSTER
BANK PLC
by: XXXX XXXXXXXX
SIGNED for and on behalf of
THE TORONTO-DOMINION BANK
by: XXXXXX XXXXX
SIGNED for and on behalf of
BANKERS TRUST COMPANY
by its attorney: XXXXXX XXXXX
SIGNED for and on behalf of
BANQUE PARIBAS
by: XXXXX XXXXXX
SIGNED for and on behalf of
BARCLAYS BANK PLC
by its attorney: XXXXXX XXXXX
SIGNED for and on behalf of
THE BRITISH LINEN BANK LIMITED
by its attorney: XXXXXX XXXXX
SIGNED for and on behalf of BANKBOSTON, N.A.
by: XXXXXX XXXXX
SIGNED for and on behalf of
DEUTSCHE BANK AG, LONDON BRANCH
by: XXXXXX XXXXXXXX
ERWAN FOURNIS
SIGNED for and on behalf of MEESPIERSON N.V.
by: XXXX XXXXX
SIGNED for and on behalf of
NATIONSBANK N.A. (LONDON BRANCH)
by: XXXXX XXXXXXX
SIGNED for and on behalf of
N M ROTHSCHILD & SONS LIMITED
by: XXX XXXXX
XXXXXXX XXXXX
THE AGENT
SIGNED for and on behalf of
THE TORONTO-DOMINION BANK
by: XXXXXX XXXXX
THE SECURITY TRUSTEE
SIGNED for and on behalf of
THE TORONTO-DOMINION BANK
by: XXXXXX XXXXX
