Dated February 17, 2000
-----------------------------
BANQUE NATIONALE DE PARIS
CREDIT AGRICOLE INDOSUEZ
DEUTSCHE BANK AG
PARIS BRANCH
WESTDEUTSCHE LANDESBANK GIROZENTRALE
PARIS BRANCH
and
FRANCE TELECOM
-----------------------------
PUT AND CALL OPTION AGREEMENT
-----------------------------
TABLE OF CONTENTS
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Page
----
1. Definitions and Interpretation.............................................1
2. Conditions.................................................................6
3. Put Option.................................................................7
4. Call Option................................................................8
5. Sale Price and Refund of Option Premium....................................9
6. Fees, Option Premium and Default Interest.................................10
7. Payments..................................................................11
8. Undertakings..............................................................12
9. Representations and Warranties............................................14
10. Put Acceleration Events...................................................17
11. Indemnity.................................................................20
12. Increased costs...........................................................22
13. Mitigation by the Finance Parties.........................................23
14. Costs and Expenses........................................................24
15. Possible Extension of the Call Option Period and of the Put Option Period.24
16. Assignments and Transfers.................................................26
17. Bank Representative.......................................................26
18. Accession of New Banks....................................................29
19. Applicable Law and Jurisdiction...........................................29
20. Entire Agreement..........................................................29
21. Notices...................................................................29
22. Remedies and Waivers......................................................31
EXHIBIT 3.3 NOTICE
EXHIBIT 3.4 STOCK POWER
EXHIBIT 18 FORM OF ACCESSION NOTICE TO BE DELIVERED BY AN ADDITIONAL BANK
PURSUANT TO CLAUSE 18
THIS AGREEMENT (this "Agreement") is made on February 17, 2000
AMONG:
BANQUE NATIONALE DE PARIS whose principal place of business is at 00 xxxxxxxxx
xxx Xxxxxxxx, 00000 Xxxxx Xxxxxx, represented by Xxxxxx Xxxxxxxxx and Xxxxxxxxxx
Xxxxxxxxxxxx ("BNP");
CREDIT AGRICOLE INDOSUEZ whose principal place of business is at 0, Xxxx xx
Xxxxxxxxx Xxxx Xxxxxx, 00000 Xxxxxxxxxx Xxxxxx, represented by Xxxxxx Xxxxxxxx
and Xxxxxx Scaillierez ("CAI");
DEUTSCHE BANK AG acting through its Paris branch whose principal place of
business is at 0 xxxxxx xx Xxxxxxxxx, 00000 Xxxxx, represented by Xxxxxx
Xxxxxxxxx and Antoine de Maistre ("DB");
WESTDEUTSCHE LANDESBANK GIROZENTRALE acting through its Paris branch whose
principal place of business is at 00 xxxxxx xx Xxxxxxxxx, 00000 Xxxxx,
represented by Xxxxxxx Selves and Xxxxxx Veldung ("West LB");
(BNP, CAI, DB and West LB are hereafter referred to each as a "Bank" and
collectively as the "Banks")
and
FRANCE TELECOM whose principal place of business is at 6 Place d'Alleray, 75505
Xxxxx, Xxxxx 00, Xxxxxx, represented by Xxxx Xxxxxxx and _______________________
("France Telecom").
IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED, IT IS HEREBY AGREED
as follows:
1. Definitions and Interpretation
1.1 Definitions
The following words and expressions where used in this Agreement have the
meanings given to them below:
"Additional Bank" has the meaning set forth in clause 18 Accession of New
Banks;
"Affiliate" means in relation to any person, a Subsidiary of that person
or a Holding Company of that Person or any other Subsidiary of that
Holding Company;
"Banks" has the meaning set forth at the beginning of this Agreement to
also include any Additional Bank after its accession to this Agreement in
accordance with the provisions of clause 18 Accession of New Banks;
"Bank Representative" means CAI, appointed pursuant to clause 17 Bank
Representative in its separate capacity to act as the Banks'
representative or any successor named as Bank Representative pursuant to
the terms of this Agreement;
"Borrowed Monies Indebtedness" means any indebtedness of any person:
(i) for monies borrowed;
(ii) whether actual or contingent under any guarantee, security,
indemnity or other commitment designed to assure any creditor
against loss in respect of any Borrowed Monies Indebtedness of any
third party;
(iii) under any acceptance credit having a term exceeding 90 days from
the date of issue;
(iv) under any debenture, bond, note, xxxx of exchange or commercial
paper;
(v) for amounts actually owing in respect of any interest rate swap or
cross-currency swap or forward sale or purchase contract; or
(vi) in respect of the payment obligations under any lease entered into
for the purpose of obtaining or raising finance;
"Business Day" means any day on which banks are open for general business
in New York City and Paris, excluding Saturdays and Sundays;
"Call Completion Date" has the meaning set forth in clause 4.2;
"Call Option" means the right of France Telecom (exercisable during the
Call Option Period) to acquire all (but not less than all) of the Option
Stock from the Banks at a price equal to the sum of all Sale Prices as
set forth in clause 4.1;
"Call Option Period" means the period during which the Call Option can be
exercised (within the meaning of clause 1.2.5.), being the period
commencing on the Date of Issue and ending 5 Business Days before the
Termination Date;
"Completion Date" means any Call Completion Date or Put Completion Date
being the day on which France Telecom completes the sale and purchase of
Option Stock from Banks;
2
"Consolidated Net Worth" means the aggregate of the amount paid up or
credited as paid up on the issued ordinary share capital of France
Telecom including any capital reserves and retained earnings deducting
(to the extent included) any minority interests, all as determined by
reference to its most recent consolidated financial statements prepared
in accordance with generally accepted accounting principles in France
relating to commercial and industrial companies;
"Date of Issue" means the date of issue, sale and delivery of the
Preferred Stock pursuant to the Purchase Agreement;
"Dollars" and "US$" mean the lawful currency of the United States of
America;
"Finance Party" means the Bank Representative or a Bank;
"Group" means France Telecom and its Subsidiaries;
"Holding Company" means in relation to a company or corporation, any
other company or corporation in respect of which the former is a
Subsidiary;
"LIBOR" means in relation to each Premium Period or other period
concerned (which shall not vary during such period when fixed), the
London Interbank Offered Rate for deposits in Dollars for an equivalent
period (or, for any period which is not exactly divisible by a month, for
a period rounded upwards to the nearest month) as displayed on the
relevant page (T 3750) of the Reuters Monitor Money Rates Service (or, if
the agreed page is replaced or that service is unavailable, such
alternative page or service as the Bank Representative may select) at or
about 11 A.M. on the second London banking day before the first day of
such period; if no rate available as provided above, LIBOR means the
arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Bank Representative at its request quoted by the
Reference Banks to leading banks in the London interbank market at or
about 11 A.M on the second London banking day before the first day of the
period concerned for deposits in Dollars for an equivalent period;
"Majority Banks" means as long as the number of Banks is four, at least
two Banks and at any other time, Banks the sum of whose Purchase Prices
represent an amount equal to or greater than 50% of the sum of all
Purchase Prices at such time;
"Market Disruption Event" means:
(i) when LIBOR is to be determined by reference to the Reference Banks
as provided in the definition of LIBOR and none or only one of the
Reference Banks supplies a rate to the Bank Representative to
determine LIBOR for the relevant Premium Period or other period
concerned, or
(ii) before close of business day in London on the day where LIBOR must
be determined for a given Premium Period or for another period
concerned, the Bank Representative receives notification
3
from a Bank or Banks that the cost to it or to them of obtaining
matching deposits in the London Interbank Market would be in
excess of LIBOR;
"NTL" means NTL Incorporated, a Delaware corporation (or its successor
company);
"Option Premium" means the premium from time to time payable pursuant to
clause 6 Fees, Option Premium and Default Interest;
"Option Stock" means the aggregate of 275,000 shares of Preferred Stock
held by BNP, 275,000 shares of Preferred Stock held by CAI, 275,000
shares of Preferred Stock held by DB and 275,000 shares of Preferred
Stock held by West LB, the number of Preferred Stock held by each
Additional Bank, if any, and (in each case) shall include any further or
additional securities allotted in respect thereof (whether by way of
distribution, bonus or otherwise) or in substitution therefor (whether as
a result of conversion, the implementation of a scheme of arrangement or
similar proposal or otherwise howsoever);
"Overnight Rate" means the rate quoted daily as the overnight rate in the
London interbank market for deposits in Dollars and listed in the
relevant page of the Reuters Monitor Money Rates Service;
"Preferred Stock" means the series of redeemable 5% preferred shares of
NTL issuable to and purchasable by the Banks and France Telecom under the
Purchase Agreement;
"Premium Payment Date" means each of the dates as set out in the table
under the definition of "Relevant Margin";
"Premium Period" means the period between each Premium Payment Date,
other than the fourth Premium Period, which will be the period between
the fourth Premium Payment Date and the date two years after the Date of
Issue;
"Prepaid LIBOR" means in relation to each Premium Period or other period
concerned, the rate equivalent in present value to the LIBOR rate
determined in actuarial terms, to be calculated as follows:
PL = LIBOR 6 months X 360
--------------------------
360 + (LIBOR 6 months X j)
where "PL" is the Prepaid LIBOR and "j" is the number of days comprising
the period for which Prepaid LIBOR is calculated.
"Protected Party" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment
in relation to a sum received or receivable (or any sum deemed for the
purpose of Tax to be received or receivable) under this Agreement or in
connection with the Option Stock (including any dividend related
thereto);
4
"Purchase Agreement" means the agreement dated the date of this Agreement
among NTL, France Telecom and the Banks (including the attached
Certificate of Designation, as defined in the Purchase Agreement)
relating to the issuance by NTL to, and the purchase by France Telecom
(or its assignees) and the Banks of, the Preferred Stock;
"Purchase Price" means with respect to each Bank the purchase price paid
by such Bank to NTL to purchase the Preferred Stock held by such Bank
(pursuant to the Purchase Agreement), such Purchase Price to be in the
amount of US$ 275,000,000 in the case of each of BNP, CAI, DB and West
LB;
"Put Acceleration Events" means any of the events or circumstances set
out in clause 10 Put Acceleration Events;
"Put Completion Date" has the meaning set forth in clause 3.3;
"Put Option" means the right of each Bank to require France Telecom to
acquire all (but not less than all) of the Option Stock it holds as set
forth in clause 3.1;
"Put Option Period" means the period during which the Put Option can be
exercised (within the meaning of clause 1.2.5), being the period
commencing on the day 20 Business Days before the Termination Date and
ending on the day which is 8 Business Days before the Termination Date;
"Reference Banks" means, in relation to LIBOR, the principal London
offices of National Westminster Bank, plc, Dresdner Bank, AG and Credit
Lyonnais or such other banks as may be appointed by the Bank
Representative in consultation with France Telecom;
"Relevant Margin" means the margin applicable to the calculation of the
Option Premium in respect of each Premium Period, as more particularly
set out below:
-------------------- --------------------------- --------------------------- -----------------------------
Premium Period Premium Payment Dates Last day of the Premium Relevant Margin
Period
-------------------- --------------------------- --------------------------- -----------------------------
First The Date of Issue 6 months after the Date 0.15 per cent per annum
of Issue
-------------------- --------------------------- --------------------------- -----------------------------
Second 6 months after the Date 1 year after the Date of 0.15 per cent per annum
of Issue Issue
-------------------- --------------------------- --------------------------- -----------------------------
Third 1 year after the Date of 18 months after the Date 0.25 per cent per annum
Issue of Issue
-------------------- --------------------------- --------------------------- -----------------------------
-------------------- --------------------------- --------------------------- -----------------------------
Fourth 18 months after the Date 2 years after the Date of 0.25 per cent per annum
of Issue (the last Issue
Premium Payment Date)
-------------------- --------------------------- --------------------------- -----------------------------
5
"Sale Price" means the price to be paid for the Option Stock held by each
Bank on the Completion Date as described in clause 5 Sale Price and
Refund of Option Premium;
"Subsidiary" means with respect to a company or corporation, any company
or corporation
(i) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(ii) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(iii) which is a subsidiary of another Subsidiary of the first-mentioned
company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation has the
right or power to direct its affairs and/or has the right to elect a
majority of its board of directors or any equivalent body or its chief
executive officer;
"Tax" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same);
"Termination Date" means the second anniversary of the Date of Issue.
1.2 Interpretation
1.2.1 The headings used in this Agreement are for convenience only
and shall not affect its meaning.
1.2.2 References to a clause are (unless otherwise stated) to a
clause of this Agreement.
1.2.3 Words importing one gender shall (where appropriate) include
any other gender and words importing the singular shall (where
appropriate) include the plural and vice versa.
1.2.4 References to a time in this Agreement are references to the
time prevailing in New York City, except with respect to the
determination of LIBOR where the time referred to is the time
prevailing in London and except with respect to the
application of clause 21.2.3 where the time referred to is the
time prevailing in Paris.
1.2.5 Any reference to the "exercise" of the Call Option or of the
Put Option shall mean the sending of the notices provided
respectively under clauses 4.2, 3.3 or 10.2.
6
2. Conditions
2.1 The provisions of this Agreement are conditional upon the Option Stock
being sold to the Banks in accordance with the terms of the Purchase
Agreement and issued with the terms set forth in the Certificate of
Designation as defined in and attached to the Purchase Agreement.
2.2 If the condition described in clause 2.1 is not satisfied on or before
June 29, 2000 the provisions of this Agreement shall cease to have any
effect with the exception of the provisions of clauses 11 Indemnity, 14
Costs and Expenses and 19 Applicable Law and Jurisdiction.
3. Put Option
3.1 France Telecom hereby grants to each Bank the right to require France
Telecom to purchase all (but not less than all) of the Option Stock that
such Bank holds at the Sale Price.
3.2 The Put Option may only be exercised by each Bank:
(a) during the Put Option Period; or
(b) during any other period in which a Put Acceleration Event has
occurred and is continuing.
3.3 The Put Option shall be irrevocably exercisable by sending a notice in
the form attached hereto as Exhibit 3.3 given either by each Bank or by
the Bank Representative on behalf of all the Banks in writing to France
Telecom at any time during the Put Option Period or in any period in
which a Put Acceleration Event has occurred and is continuing. Subject to
the provisions of clause 15 Possible extension of the Call Option Period
and of the Put Option Period, if, at the expiry of the Put Option Period,
the Put Option shall not have been so exercised by a Bank, it shall lapse
for such Bank. Each notice shall specify the date (the "Put Completion
Date"), which shall be not less than 8 Business Days from the date of the
notice and which shall be at the latest on the Termination Date (except
in case of extension of the Put Option Period as provided in clause
15.1), for the completion of the sale and purchase of the Option Stock
concerned by such notice. Each Bank exercising its Put Option shall
notify such exercise to the Bank Representative and all the other Banks
without delay.
3.4 Completion of the sale and purchase of any Option Stock concerned by a
notice received by France Telecom pursuant to clause 3.3 following the
exercise of the Put Option shall take place on the Put Completion Date at
the office of the Bank Representative or at such other place as the Bank
Representative and France Telecom shall agree. At that time the Bank
Representative (or, in the case where the notice referred to in clause
3.3 was not sent by the Bank Representative, each Bank having sent such
notice) shall deliver to France Telecom duly executed stock powers in the
form of Exhibit 3.4 for the Option Stock concerned by the notice(s) sent
pursuant to clause 3.3 to effect the transfer of good and marketable
title to all such Option Stock free and clear of any and all liens and
encumbrances created by
7
the Banks together with all share certificates in respect of the same,
against payment to each Bank concerned by such notice (as set forth
therein) of the Sale Price attributed to such Bank in respect of all its
Option Stock. Completion of the sale and purchase of the Option Stock
pursuant to clause 4.3 and 10.2 of this Agreement shall be conducted in
accordance with the provisions of this clause 3.4.
3.5 The rights of each Bank under or in connection with this clause 3 Put
Option and more generally under or in connection with this Agreement are
separate and independent rights and any debt arising under this Agreement
to a Bank from France Telecom shall be a separate and independent debt.
3.6 A Finance Party may, except as otherwise stated in this Agreement,
separately enforce its rights under this Agreement.
3.7 The obligation of France Telecom to purchase Option Stock from a Bank
under this clause 3 Put Option and under clause 10.1 shall be conditioned
upon such Bank not having as of the Put Completion Date relating to such
Option Stock (i) agreed to amend, modify or terminate, or waived any
condition or right of such Bank under, the Purchase Agreement, without
the written consent of France Telecom, or (ii) sold, assigned,
transferred or created a lien, encumbrance or charge with respect to any
of its Option Stock or any of its rights thereto which continues to exist
on the Put Completion Date.
4. Call Option
4.1 In consideration of the payment of the option fees and of the Option
Premiums as provided in clause 6 Fees, Option Premium and Default
Interest, the Banks hereby grant to France Telecom or any Subsidiary of
France Telecom designated in writing by France Telecom to the Banks in
the notice given by France Telecom pursuant to clause 4.2 the right
(exercisable during the Call Option Period) to purchase all (but not some
only) of the Option Stock at a price equal to the sum of all Sale Prices.
4.2 The Call Option shall be irrevocably exercisable by sending a notice in
the form attached hereto as Exhibit 3.3 given by France Telecom in
writing to the Bank Representative at any time during the Call Option
Period and exclusively for all the Option Stock at the same time. Any
partial exercise of the Call Option shall be null and void, except as
permitted under clauses 4.5 and 4.6. If at the expiry of the Call Option
Period the Call Option shall not have been so exercised it shall lapse.
The notice shall specify the date (the "Call Completion Date"), which
shall be not less than 5 Business Days from the date of the notice and
which shall be at the latest on the Termination Date (except in case of
extension of the Call Option Period as provided in clause 15.1), for the
completion of the sale and purchase of the Option Stock.
4.3 Completion of the sale and purchase of the Option Stock following the
exercise of the Call Option shall take place on the Call Completion Date
in accordance with the procedures set out in clause 3.4 provided that,
the duly executed stock powers and the share certificates shall be
delivered to France Telecom or to
8
the Subsidiary of France Telecom designated in writing by France Telecom
to the Banks as provided in clause 4.1.
4.4 The obligations of each Bank under this clause 4 Call Option and more
generally under this Agreement are several. Failure by a Bank to perform
its obligations under this Agreement does not affect the obligations of
any other party to this Agreement. No Finance Party is responsible for
the obligations of any other Finance Party under this Agreement.
4.5 Notwithstanding anything to the contrary contained herein, if the Put
Option is exercised by some but not all of the Banks, France Telecom
shall have the right to exercise the Call Option hereunder with respect
to the Option Stock held by the Banks that did not exercise the Put
Option at a price equal to the sum of Sale Prices with respect to such
remaining Option Stock.
4.6 Notwithstanding anything to the contrary contained herein, if some but
not all of the Banks give notice pursuant to clause 3.3 of the exercise
of their Put Option, the completion of the sale and purchase of the
Option Stock concerned to take place on a Put Completion Date specified
in such notice, France Telecom shall have the right to exercise the Call
Option hereunder with respect to the Option Stock held by the Banks
having given such notice by giving notice pursuant to clause 4.2 to each
such Banks (with a copy to the Bank Representative) for a Call Completion
Date which shall be on or before the Put Completion Date specified in the
notice given by those Banks having so notified their exercise of the Put
Option.
5. Sale Price and Refund of Option Premium
5.1 The Sale Price for the Option Stock held by each Bank shall be equal to
its Purchase Price.
5.2 If a Put Option or a Call Option is exercised pursuant to this Agreement,
each Bank concerned by such Put Option or Call Option will on the
corresponding Completion Date refund to France Telecom (such refund to be
paid by partial offset of the Sale Price stated in clause 5.1) an amount
equal to the equivalent in present value (determined in actuarial terms)
to the Option Premium paid by France Telecom to such Bank on the most
recent Premium Payment Date, to the extent to which such payment only
accrued after the Completion Date, such amount to be calculated as
follows:
PP x L' x j
------------
360 + L' x j
where "PP" is Purchase Price, " L' " is the LIBOR minus 0.10 per cent per
annum plus the Relevant Margin notified by the Bank Representative for
the period remaining between the corresponding Completion Date and the
next Premium Payment Date, and "j" is the number of days comprising the
period for which "L'" is calculated.
For the avoidance of doubt, such formula also covers any so-called
"funding breakage costs".
9
If a Market Disruption Event occurs and the Bank Representative or France
Telecom so requires, the Bank Representative and France Telecom shall
enter into negotiations (for a period of not more than thirty (30) days)
with a view to agreeing to a substitute basis for determining the rate to
be used to calculate the refund.
Any alternative basis agreed pursuant to the preceding paragraph shall,
with the prior consent of all the Banks and France Telecom, be binding on
all parties.
6. Fees, Option Premium and Default Interest
6.1 France Telecom, in respect of the Call Option, shall pay to the Bank
Representative on behalf of (and for distribution to) the Banks (i) on
the date of signature of this Agreement an option fee equal to 0.10 per
cent of the aggregate amount of the Purchase Prices, (ii) on the earlier
of April 30, 2000 and the Date of Issue an option fee equal to 0.05 per
cent of the aggregate amount of the Purchase Prices, (iii) on the Date of
Issue, an additional option fee equal to 0.05 per cent of the aggregate
amount of the Purchase Prices, and (iv) on the third Premium Payment Date
if the Call Completion Date has not occurred prior to such date an option
fee equal to 0.10 per cent of the aggregate amount of the Purchase
Prices.
6.2 France Telecom shall pay to the Bank Representative on behalf of (and for
distribution to) the Banks on each Premium Payment Date (for those Banks
as to which the Completion Date has not occurred prior thereto) an Option
Premium (calculated in accordance with this clause 6.2) in respect of the
Call Option.
6.2.1 The Option Premium payable on any given Premium Payment Date
shall be equal to the interest which would accrue on a
principal amount equal to the aggregate amount of the Purchase
Prices attributable to the Option Stock for which the
Completion Date has not occurred in respect of the Premium
Period commencing on such Premium Payment Date calculated at
the rate per annum determined by the Bank Representative to be
the aggregate of (a) the Relevant Margin and (b) Prepaid
LIBOR.
6.2.2 The first Premium Period will commence on the Date of Issue
and end on the date falling six months after that date. Each
subsequent Premium Period in respect of this Agreement will
commence on the last day of the previous Premium Period and
shall end on the date falling six months after such date.
6.2.3 Subject to clause 6.2.4 if LIBOR is to be determined by
reference to the Reference Banks but a Reference Bank does not
supply a quotation as provided in the definition of LIBOR, the
applicable LIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks.
6.2.4 Unless otherwise determined in accordance with clause 6.2.5,
if a Market Disruption Event occurs for any Premium Period,
then the Option Premium payable to each Bank on the
10
corresponding Premium Payment Date shall be equal to the
interest which would accrue on a principal amount equal to
the amount of the Purchase Price paid by such Bank in
respect of the Premium Period commencing on such Premium
Payment Date calculated at the rate per annum determined by
the Bank Representative to be the aggregate of (a) the
Relevant Margin and (b) the rate equivalent in actuarial
terms (as provided in the definition of Prepaid LIBOR) to
the rate notified to the Bank Representative by such Bank as
soon as practicable and in any event before the Option
Premium is due to be paid in respect of the Premium Period,
to be that which expresses as a percentage rate per annum
the cost to that Bank of funding its Purchase Price from
whatever sources it may reasonably select.
6.2.5 If a Market Disruption Event occurs and the Bank
Representative or France Telecom so requires, the Bank
Representative and France Telecom shall enter into
negotiations (for a period of not more than thirty (30) days)
with a view to agreeing to a substitute basis for determining
the rate to be used to calculate the Option Premium.
Any alternative basis agreed pursuant to the preceding
paragraph shall, with the prior consent of all the Banks and
France Telecom, be binding on all parties.
6.2.6 France Telecom shall compensate the Bank Representative (to
the extent not otherwise reimbursed under this Agreement) and
each Bank upon written request from the Bank Representative
(which request shall set forth the basis for such compensation
and shall, absent manifest error, bind all parties hereto),
for all losses (including loss of reasonably anticipated
profits), reasonable expenses and liabilities (including any
loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds
required by a Bank to fund its Purchase Price) which such Bank
sustains:
(i) as a consequence of the occurrence of a Put
Acceleration Event as provided in clause 10 Put
Acceleration Events; or
(ii) as a consequence of a failure by France Telecom to pay
any amount under this Agreement on its due date.
6.3 If either party fails to pay any sum (including any sum payable pursuant
to this clause 6.3) on its due date for payment under this Agreement,
such party shall pay interest on such sum at a rate equal to the sum of
1.25 per cent per annum and of the Overnight Rate calculated on the basis
of actual days elapsed from the due date up to the date of actual payment
(as well after as before judgment).
Default interest under this clause 6.3 shall be due and payable on the
last day of each such period and at least on the last day of every
successive three-month period following the due date or, if earlier, on
the date on which the sum in respect of which such default interest is
accruing shall actually be paid.
11
Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of such successive
three-month period applicable to that overdue amount until actual payment
but will remain immediately due and payable.
7. Payments
7.1 Except as provided in clause 5.2, all payments by France Telecom
hereunder shall be made without set-off or counterclaim and, subject to
clause 7.2., free and clear of any deductions or withholdings, in Dollars
in same day funds on the due date to the account of the Bank
Representative notified to France Telecom by the Bank Representative.
7.2 If at any time France Telecom is required by law to make any deduction or
withholding in respect of any Taxes from any payment due to any Finance
Party hereunder, the sum due from France Telecom in respect of such
payment shall be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, the Bank Representative
receives on the relevant due date 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. France Telecom shall promptly deliver to the Bank
Representative receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any such deduction or
withholding.
France Telecom shall promptly upon becoming aware that it must make a Tax
deduction or withholding (or that there is any change in the rate or the
basis of a Tax deduction or withholding) notify the Bank Representative
accordingly.
If France Telecom is required to make a Tax deduction or withholding,
France Telecom shall make such Tax Deduction or withholding within the
time allowed and in the minimum amount required by law.
Within 30 days of making either a Tax deduction or withholding or any
payment required in connection with a Tax deduction or withholding,
France Telecom shall deliver to the Bank Representative evidence
reasonably satisfactory to the Bank entitled to the payment that the Tax
deduction or withholding has been made or (as applicable) any appropriate
payment paid to the relevant tax authority.
7.3 When any payment would otherwise be due on a day which is not a Business
Day, the next following Business Day shall be substituted for such day,
unless such Business Day falls in the next calendar month, in which case
the immediately preceding Business Day shall be substituted therefor.
7.4 Option Premium, default interest and other sums computed on an annualized
basis shall accrue from day to day and be calculated on the actual number
of days elapsed and on the basis of a 360-day year.
12
7.5 Any certificate or determination of the Bank Representative as to any
amount payable or required to be calculated hereunder shall be conclusive
and binding on France Telecom and on the Banks in the absence of manifest
error.
8. Undertakings
8.1 France Telecom undertakes with each Bank that:
8.1.1 it shall inform the Bank Representative of any Put
Acceleration Event or any event which with the giving of
notice or lapse of time or both would constitute a Put
Acceleration Event forthwith upon becoming aware thereof;
8.1.2 it shall provide the Banks with such financial and other
information concerning France Telecom and NTL (to the extent
that France Telecom has the right to provide any such
information with respect to NTL without violating any
confidentiality or fiduciary obligation) and their respective
affairs as the Bank Representative may from time to time
reasonably require;
8.1.3 it shall obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all
authorizations, approvals, licenses and consents required in
or by the laws and regulations of France or of the United
States of America or any subdivision thereof, to enable it
lawfully to enter into and perform its obligations under this
Agreement and the Purchase Agreement or to ensure the
legality, validity, enforceability or admissibility in
evidence of this Agreement and, to the extent applicable, of
the Purchase Agreement;
8.1.4 it shall ensure that at all times the claims of the Banks
against it under this Agreement rank at least pari passu with
the claims of all its other unsecured and unsubordinated
creditors;
8.1.5 it shall not, without the prior written consent of the
Majority Banks, create or permit to subsist any encumbrance in
respect of Borrowed Monies Indebtedness over all or any of its
present or future revenues or assets other than:
(a) any lien or right of set-off arising solely by
operation of law and not by reason of any default;
(b) subject to clause 8.1.6, any banker's right of set-off
or netting against amounts credited to accounts held by
any Group member for amounts outstanding or liabilities
of itself or any other Group member which is entered
into in the ordinary course of business or as a result
of normal banking arrangements or any banker's lien
created in respect of any such set-off or netting
arrangements but excluding arrangements which are
established primarily for the purpose of affording a
preferential position to the relevant creditor;
13
(c) any lien incurred in respect of purchase money
indebtedness applied for the acquisition of an asset by
France Telecom or any Subsidiary of France Telecom;
(d) any lien incurred to finance any development or
alteration to any property which is directly owned by
France Telecom or any Subsidiary of France Telecom;
(e) any lien attached to any asset of any Subsidiary prior
to its acquisition by France Telecom;
(f) any encumbrance not covered by paragraphs (a) to (e)
above, provided that the aggregate amount of Borrowed
Monies Indebtedness secured by all encumbrances falling
within this paragraph (f) does not, at any time, exceed
25 per cent of Consolidated Net Worth; or
(g) renewals of any encumbrances referred to in paragraphs
(a) to (f) above;
8.1.6 it shall make sure that its obligations pursuant to this
Agreement shall be appropriately reflected in its accounts,
including in its audited annual accounts, and if treated
off-balance sheet by an appropriate note to the financial
statements; and
8.1.7 it shall duly perform and uphold its undertakings and
agreements under the Purchase Agreement.
8.2 Each Bank undertakes with France Telecom that it will not, prior to the
Completion Date on which the sale of its Option Stock is completed or, if
later, the Termination Date, at any time sell, assign, transfer, create a
lien with respect to, encumber, charge, exchange or convert any of its
Option Stock or any of its rights thereto unless either:
8.2.1 a Put Acceleration Event has occurred and (i) has not been
remedied as per clause 10.1.2 or (ii) France Telecom shall
have not performed its obligation to purchase Option Stock
upon exercise by any of the Banks of the Put Option; or
8.2.2 the prior written consent of France Telecom has been obtained.
9. Representations and Warranties
9.1 France Telecom represents and warrants to each Bank as of the date
hereof, and will be deemed to represent and warrant to each Bank on each
Premium Payment Date and on each Completion Date, that:
9.1.1 France Telecom is duly incorporated and validly existing under
the laws of France and has power to execute, deliver and
perform its obligations under this Agreement; all necessary
action has been taken by it to authorize the execution,
delivery and performance of this
14
Agreement, no limitation on its powers will be exceeded as a
result of transactions under this Agreement and this Agreement
constitutes valid and legally binding obligations of France
Telecom enforceable in accordance with its terms;
9.1.2 the execution, delivery and performance of this Agreement by
France Telecom will not contravene any existing law,
regulation or authorization to which it is subject, result in
any material breach of or default under any agreement or other
instrument to which France Telecom is a party or is subject or
contravene any provision of France Telecom's corporate
documents or to the best knowledge of France Telecom, without
having made any specific investigation thereof, result in any
material breach of or material default under any agreement or
other instrument to which NTL is a party or is subject;
9.1.3 every authorization of, or registration with, governmental or
public bodies or courts required by France Telecom in
connection with the execution, delivery, performance,
validity, enforceability or admissibility in evidence of this
Agreement has been obtained or made and is in full force and
effect and there has been no default in the observance of any
conditions imposed in connection therewith;
9.1.4 no event or circumstance which constitutes or which with the
giving of notice or lapse of time or both would constitute a
Put Acceleration Event has occurred and is continuing;
9.1.5 under the laws of France in force at the date hereof, it will
not be required to make any deduction or withholding from any
payment it may make hereunder;
9.1.6 under the laws of France and of the State of New York in force
at the date hereof, the claims of the Banks against France
Telecom under this Agreement will rank at least pari passu
with the claims of all its other unsecured and unsubordinated
creditors, except for claims that may arise by operation of
law;
9.1.7 it irrevocably waives any immunity to jurisdiction which it
has or hereafter may acquire (including any immunity,
sovereign or otherwise pursuant to public law or status, to
pre-judgment attachment and execution) in any legal suit,
action or proceeding against it arising out of or based on
this Agreement or the transactions contemplated hereby that
is instituted in the Supreme Court of the State of New York,
County of New York or the U.S. District Court for the
Southern District of New York, or in any competent court of
the French Republic or any other jurisdiction (whether
through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with
respect to itself or its property. Without limiting the
generality of the foregoing, France Telecom agrees that the
waivers set forth in this clause 9.1.7 shall have the
fullest scope permitted under the Foreign Sovereign
Immunities Act of 1976 of the United States and are intended
to be irrevocable for purposes of such act;
15
9.1.8 it has not taken any corporate action nor have any other steps
been taken or legal proceedings been started or (to its best
knowledge and belief) threatened against it for its
winding-up, dissolution (liquidation judiciaire),
administration or reorganization (redressement judiciaire) or
for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of it or
of any or all of its assets or revenues;
9.1.9 it is not in breach of or in default under any agreement to
which it is a party or which is binding on it or any of its
assets to an extent or in a manner which is reasonably likely
to have a material adverse effect on its ability to perform
its obligations hereunder;
9.1.10 no action or administrative proceeding of or before any court
or agency which is reasonably likely to have a material
adverse effect on its ability to perform its obligations
hereunder has been started or (to the best of its knowledge
and belief) threatened against it;
9.1.11 all of the written information supplied by it to the Banks in
connection herewith is true, complete and accurate in all
material respects and it is not aware of any material facts or
circumstances that have not been disclosed to the Banks and
which might, if disclosed, adversely affect the decision of a
person considering whether or not to provide financing to
France Telecom or to acquire the Preferred Stock;
9.1.12 except with respect to encumbrances of the type permitted by
clause 8.1.5, to the best knowledge of France Telecom, no
encumbrance exists over all or any of its material present or
future revenues or assets;
9.1.13 the execution of this Agreement and of the Purchase Agreement
and its exercise of its rights and performance of its
obligations hereunder and thereunder will not result in the
existence of nor oblige it to create any encumbrance over all
or any of its present or future revenues or assets;
9.1.14 the execution of this Agreement and of the Purchase Agreement
constitutes, and its exercise of its rights and performance of
its obligations hereunder and thereunder will constitute,
private and commercial acts done and performed for private and
commercial purposes;
9.1.15 it has not granted any rights of set-off under or pursuant to
the terms of any outstanding credit facilities, bond
documentation or note documentation, excluding any notes with
a maturity of less than three years, to which it is a party;
9.1.16 it has made its own investigation and assessment of the
creditworthiness and general condition of NTL; it shall be
solely responsible for continuing to evaluate the foregoing
for its own account and shall not rely on any Finance Party
for the furnishing of any assessment, information or
commentary whatsoever in respect thereof and it has not relied
on any
16
statement or information given by any Finance Party in
deciding to enter into this Agreement or the Purchase
Agreement; and
9.1.17 the representations and warranties of France Telecom under the
Purchase Agreement with respect to the purchase by France
Telecom from the Banks of the Preferred Shares (as such term
is defined in the Purchase Agreement) are true and accurate.
9.2 Each Bank represents and warrants to France Telecom as of the date hereof
and on the Completion Date on which the sale of its Option Stock is
completed that:
9.2.1 the Purchase Agreement has not been amended, modified or
terminated, and no provision or condition thereof or any right
of a Bank thereunder has been waived, without the written
consent of France Telecom;
9.2.2 each Bank is duly incorporated and validly existing under the
laws of France or Germany, as the case may be, has on the date
hereof and on the Completion Date the full corporate power and
authority to make, and has taken all necessary corporate
action to authorize the execution, delivery and performance of
this Agreement.
10. Put Acceleration Events
10.1 Each Bank may, and if so instructed by all the Banks, the Bank
Representative shall, without prejudice to the Banks' other rights
hereunder, require France Telecom to acquire the Option Stock held by
such Bank (if requested by one Bank) or all the Option Stock (if
requested by the Bank Representative) after any of the following events
shall have occurred and so long as the same is subsisting, provided that
with respect to any event listed in clause 10.1.2, 10.1.3, 10.1.4,
10.1.5, 10.1.8, 10.1.9, 10.1.11 and 10.1.14 the Majority Banks shall have
to decide that such an event has occurred and constitutes a Put
Acceleration Event prior to any request by any Bank or the Bank
Representative that France Telecom acquires Option Stock;
10.1.1 France Telecom fails to pay any sum payable by it under this
Agreement in the currency, at the time and in the manner
specified in this Agreement unless for sums other than any
Sale Price or any Option Premium, such failure to pay is
remedied within 10 Business Days of the occurrence thereof; or
10.1.2 France Telecom defaults in the due performance or observance
of any other of its obligations under this Agreement or, as
long as it is a party to the Purchase Agreement, under the
Purchase Agreement and (if such default is in the opinion of
the Majority Banks capable of remedy) such default shall not
have been remedied within 10 Business Days following written
notice thereof to France Telecom by the Bank Representative;
or
17
10.1.3 any representation or warranty made or deemed to be made or
repeated by France Telecom in or pursuant to this Agreement or
in or pursuant to the Purchase Agreement is or proves to have
been incorrect or misleading in any material respect; or
10.1.4 it becomes unlawful for France Telecom to perform any or all
its obligations under this Agreement or, as long as it is a
party to the Purchase Agreement, under the Purchase Agreement;
or
10.1.5 France Telecom or NTL is unable to pay its debts as they fall
due (in the case of France Telecom is in cessation de
paiements), commences negotiations with its creditors with a
view to the general readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of
or a composition with its creditors; or
10.1.6 France Telecom or NTL takes any corporate action or other
steps are taken or legal proceedings (which proceedings are
not discharged within 60 days from the date of their
commencement) are started for its redressement judiciaire,
liquidation judiciaire, winding-up, dissolution,
administration or reorganization in a bankruptcy or insolvency
proceeding; or
10.1.7 France Telecom or NTL takes any corporate action or other
steps are taken or legal proceedings are started for the
appointment of an administrateur judiciaire, receiver,
administrator, administrative receiver, trustee or similar
officer of it or of any or all of its revenues and assets; or
10.1.8 any execution or distress is levied against, or an
encumbrancer takes possession of the whole or any material
part of, the property, undertaking or assets of France Telecom
or NTL; or
10.1.9 NTL defaults in any material respect in the due performance or
observance of any of its obligations under the Purchase
Agreement and (if such default is in the opinion of the
Majority Banks capable of remedy) such default shall not
have been remedied within 10 Business Days following written
notice thereof to France Telecom, with a copy thereof sent
at the same time to NTL at its address set forth in the
Purchase Agreement, or any representation or warranty made
or deemed to be made or repeated by NTL in or pursuant to
Section 1 of the Purchase Agreement is or proves to have
been incorrect or misleading in any material respect; or
10.1.10 France Telecom repudiates this Agreement; or
10.1.11 at any time any act, condition or thing required to be done,
fulfilled or performed in order (a) to enable France Telecom
lawfully to enter into, exercise its rights under and
perform the obligations expressed to be assumed by it in
this Agreement or under the Purchase Agreement, (b) to
ensure that the obligations expressed to be assumed by
France Telecom in this Agreement or in the Purchase
Agreement are legal, valid and binding or (c) to make this
18
Agreement or the Purchase Agreement admissible in evidence
in the city of New York and in France is not done, fulfilled
or performed and any such act, condition or thing is, in the
opinion of the Majority Banks, material; or
10.1.12 Standard and Poors reduces its credit rating of France
Telecom's long-term debt below A - or Xxxxx'x reduces its
credit rating of France Telecom's long-term debt below Aa3; or
10.1.13 it becomes unlawful in any jurisdiction for a Bank to perform
any of its obligations as contemplated by this Agreement or
the Purchase Agreement or to hold Preferred Stock, in which
case the Put Acceleration Event shall be deemed to occur
solely with respect to such Bank; or
10.1.14 any company or person or a group of persons and/or of
companies acting in concert, other than France Telecom,
acquires control directly or indirectly of NTL, within the
meaning of the term "control" as set forth in the definition
of Subsidiary or France Telecom and/or any Subsidiary thereof
shall no longer be the registered and beneficial owner of
capital stock of NTL representing at least 2 per cent of the
voting rights of all outstanding NTL capital stock; or
10.1.15 companies of the Group, on a consolidated basis (including
France Telecom), or France Telecom on an individual basis
sell, lease, transfer or otherwise dispose of (including by
discontinuation), by one or more transactions or series of
transactions (whether related or not), the whole or any
substantial part (the book value of which is, (i) in the
case of companies of the Group on a consolidated basis, when
aggregated with the book value of the Group's revenues or,
as the case may be, the Group's assets which have been sold,
leased, transferred or otherwise disposed of during any
twelve month period following the date of this Agreement, 20
per cent or more of the book value of the whole, determined
by reference to France Telecom's latest consolidated
financial statements delivered by France Telecom pursuant to
clause 8.1.2 and (ii) in the case of France Telecom on an
individual basis when aggregated with the book value of its
revenues or, as the case may be, assets which have been
sold, leased, transferred or otherwise disposed of during
any twelve month period following the date of this
Agreement, 20 per cent or more of the book value of the
whole, determined by reference to France Telecom's latest
statutory audited financial statements delivered by France
Telecom pursuant to clause 8.1.2) of the Group's revenues or
assets in the case of companies of the Group on a
consolidated basis or of France Telecom's revenues or assets
in the case of France Telecom on an individual basis, other
than:
(a) disposals of stock in trade in the ordinary course of
business;
(b) disposals on arm's length commercial terms, for full
value and for cash consideration;
19
(c) in the case of companies of the Group other than France
Telecom, disposals to another member of the Group;
(d) disposals required by law, regulation, governmental
order or governmental authority; or
(e) disposals, the proceeds of which are to be reinvested
in the Group in the case of companies of the Group
other than France Telecom or used to repay any Borrowed
Monies Indebtedness within six months.
10.2 The rights conferred upon the Banks and the Bank Representative pursuant
to clause 10.1 may be exercised even if the Put Option Period has not
then begun. If France Telecom is required to purchase all or part of the
Option Stock pursuant to clause 10.1, then completion of the transaction
shall take place pursuant to the notice given to France Telecom in
accordance with clause 3.3 or 4.2 and in accordance with the provisions
of clause 3.4.
11. Indemnity
11.1 Notwithstanding anything to the contrary in this Agreement or any other
agreement referred to in this Agreement including the Purchase Agreement,
France Telecom agrees to indemnify and hold harmless each of the Finance
Parties and each director, officer, employee and affiliate thereof (each
an "indemnified person") from and against any and all actions, suits,
proceedings (including any investigations or inquiries), claims, losses,
damages, liabilities or expenses of any kind or nature whatsoever which
may be incurred by or asserted against or involve any such indemnified
person as a result of or arising out of or in any way related to or
resulting from this Agreement, from the Purchase Agreement or from
holding Preferred Stock, and France Telecom agrees to reimburse each
indemnified person for any reasonable and documented legal or other
out-of-pocket expenses incurred in connection with investigating,
defending or preparing to defend any such action, suit, proceeding
(including any inquiry or investigation) or claim (whether or not any
such indemnified person is a party to any action or proceeding out of
which any such expenses arise); provided that France Telecom shall not
have to indemnify any indemnified person against loss, claim, damage,
expense or liability to the extent that the same resulted primarily from
the gross negligence or willful misconduct of such indemnified person.
Promptly after receipt by an indemnified person of notice of the
commencement of any action, suit or proceeding, or existence of a claim,
such indemnified person shall give written notice to France Telecom with
respect thereto. At France Telecom's request, the Banks and their counsel
shall cooperate and consult with France Telecom and the counsel appointed
at France Telecom's cost by France Telecom. The Banks shall provide
France Telecom with all information or documents in relation to any such
action, suit, proceeding or claim which France Telecom may reasonably
request. In the event of a disagreement on the strategy to be implemented
with regard to any such action, suit, proceeding or claim or if France
Telecom chooses not to intervene in the defense of the indemnified
person, the indemnified person will keep ultimate management of its
defense for its own benefit.
20
11.2 (a) France Telecom shall (within 5 Business Days of demand by
the Bank Representative) pay to a Protected Party an amount equal
to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly) suffered
for or on account of Tax by that Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax
assessed on a Finance Party:
(A) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is treated
as resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance
Party's office through which that Finance Party will
perform its obligations under this Agreement and the
Purchase Agreement is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be
received or receivable) by that Finance Party other than a
dividend in kind in relation to the Preferred Stock;
(c) A Protected Party making or intending to make a claim pursuant to
paragraph (a) above shall promptly notify the Bank Representative
of the event which will give, or has given, rise to the claims,
following which the Bank Representative shall notify France
Telecom;
(d) A Protected Party shall, on receiving payment from France Telecom
under this clause 11.2, notify the Bank Representative.
11.3 (a) All consideration payable under this Agreement by France
Telecom to a Finance Party shall be deemed to be exclusive
of any value added tax (VAT). If VAT is chargeable, France Telecom
shall pay to the Finance Party (in addition to and at the same
time as paying the consideration) an amount equal to the amount of
the VAT.
(b) Where this Agreement requires France Telecom to reimburse a
Finance Party for any costs or expenses, France Telecom shall also
at the same time pay and indemnify that Finance Party against all
VAT incurred by that Finance Party in respect of the costs or
expenses save to the extent that that Finance Party is entitled to
repayment or credit in respect of the VAT.
11.4 France Telecom shall promptly indemnify the Bank Representative (acting
on behalf and for distribution to the Banks) for any cost relating to
any stamp, transfer, sales and use, value added, documentary,
registration, issuance or similar tax, assessment or other governmental
charge imposed on the sale or delivery of the Preferred Stock pursuant
to the Purchase Agreement, on the sale or delivery of the Option Stock
pursuant to this Agreement, or upon the execution, delivery or
performance of the Purchase Agreement and this Agreement.
21
11.5 France Telecom shall promptly indemnify the Bank Representative against
any cost, loss or liability incurred by the Bank Representative (acting
reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Put
Acceleration Event; or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorized.
11.6 If any sum due from France Telecom under this Agreement (a "Sum"), or
any order, judgment or award given or made in relation to a Sum, has to
be converted from the currency (the "First Currency") in which that Sum
is payable into another currency (the "Second Currency") for the
purpose of:
(i) making or filing a claim or proof against France Telecom; or
(ii) obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,
France Telecom shall, as an independent obligation, within 5 Business
Days of demand, indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or as a result of
the conversion including any discrepancy between (A) the rate of
exchange used to calculate the conversion of that Sum from the First
Currency into the Second Currency and (B) the market rate or rates of
exchange actually available to such Finance Party at the time of its
receipt of that Sum.
France Telecom waives any right it may have in any jurisdiction to pay
any amount under this Agreement in a currency or currency unit other
than that in which it is expressed to be payable.
11.7 In the event any Finance Party receives, as a result of judgment,
settlement, indemnification or otherwise, any amounts that in the
aggregate exceed the amount of damages, costs or expenses actually
suffered or incurred by such Finance Party and with respect to which such
Finance Party has received reimbursement, indemnification or other
payment from France Telecom pursuant to this Agreement, such Finance
Party shall promptly pay to France Telecom the amount equal to the excess
of the aggregate amounts received by such Finance Party with respect to
such damages, costs or expenses over the amounts of damages, costs or
expenses actually suffered or incurred by such Finance Party.
12. Increased costs
12.1 (a) Subject to clause 12.3, France Telecom shall, within five Business
Days of a demand by the Bank Representative, pay for the account
of a Finance Party the amount of any Increased Costs incurred by
that Finance Party as a result of (i) the introduction of or any
change in (or in the interpretation or application of) any law or
regulation or (ii) compliance with any law or regulation made
after the date of this Agreement.
22
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the return on or calculated by reference to
any amount received or receivable by a Finance Party under
this Agreement or a reduction in the rate of return on a
Finance Party's overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under this
Agreement,
which is incurred or suffered by a Finance Party to the extent
that it is attributable to that Finance Party having entered into
this Agreement or the Purchase Agreement or performing its
obligations under this Agreement or the Purchase Agreement.
12.2 (a) A Finance Party intending to make a claim pursuant to
clause 12.1 shall notify the Bank Representative of the event
giving rise to the claim, following which the Bank Representative
shall promptly notify France Telecom.
(b) Each Finance Party shall, as soon as practicable after a demand by
the Bank Representative, provide a certificate confirming the
amount of its Increased Costs.
12.3 Clause 12.1 does not apply to the extent any Increased Cost is
(i) attributable to a Tax deduction required by law to be made by
France Telecom;
(ii) otherwise compensated for pursuant to this Agreement, including
under clause 11.2 (or would have been compensated for under clause
11.2 but was not so compensated solely because one of the
exclusions in paragraph (b) of clause 11.2 applied); or
(iii) attributable to gross negligence of the relevant Finance Party or
to the willful breach by the relevant Finance Party of any law or
regulation or of this Agreement or the Purchase Agreement.
13. Mitigation by the Finance Parties
13.1 (a) Each Finance Party shall, in consultation with France
Telecom (such consultation to extend to the analysis of all
possible steps to be taken reasonably by each Finance Party), take
all reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under any of
clause 7.2, clause 11 Indemnity, clause 12 Increased Costs or
clause 15 Possible Extension of the Call Option Period and of the
Put Option Period.
(b) Paragraph (a) above does not in any way limit the obligations of
France Telecom under this Agreement.
23
13.2 (a) France Telecom shall indemnify each Finance Party for all
costs and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under clause 13.1.
(b) A Finance Party is not obliged to take any steps under clause 13.1
if, in the opinion of that Finance Party (acting reasonably), to
do so would be detrimental to it.
14. Costs and Expenses
14.1 France Telecom shall promptly on demand pay the Banks the amount of all
reasonable fees and disbursements of one law firm incurred by them in
connection with the negotiation, preparation and execution of this
Agreement and any other documents referred to in this Agreement
(including the Purchase Agreement).
14.2 If France Telecom requests an amendment, waiver or consent, France
Telecom shall, within 10 Business Days of demand, reimburse the Bank
Representative for the amount of all reasonable fees and disbursements of
one law firm incurred by the Bank Representative and the Banks in
responding to, evaluating, negotiating or complying with that request or
requirement.
14.3 France Telecom shall, within 10 Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including fees and
disbursements of one law firm in France and of one law firm in the United
States of America for all Finance Parties) incurred by that Finance Party
in connection with the enforcement of, or the preservation of any rights
under, this Agreement and any other documents referred to in this
Agreement including the Purchase Agreement.
15. Possible Extension of the Call Option Period and of the Put Option Period
15.1 To the extent that on the last day of the Call Option Period or of the
Put Option Period any law, regulation or judicial decision prohibits or
otherwise renders impossible the transfer of all or part of the Option
Stock from any or all Banks to France Telecom, the duration of the Call
Option Period and of the Put Option Period shall be extended until 20
Business Days following the date on which each Finance Party and France
Telecom has been notified that such prohibition or impossibility is
terminated (whether or not such date is after the Termination Date),
subject to the following conditions:
(a) if the transfer of all or part of the Option Stock from the Banks
to France Telecom is prohibited by a decision of a tribunal at the
request of a person who is either France Telecom or an Affiliate
thereof, the duration of the Call Option Period shall not be
extended unless such judicial decision determines on the merits
that France Telecom is prohibited by a newly enacted law or
regulation from acquiring the Option Stock from the Banks under
this Agreement;
(b) as long as the period during which the Put Option Period and/or
the Call Option Period is extended hereunder, France Telecom
agrees to use all reasonable efforts to cause NTL to (i) fully
cooperate
24
and ensure that the reasons for such extension disappear as soon
as possible, and (ii) assist as much as possible the other
parties hereto in the elaboration of any action taken to reach
such result;
15.2 It is only after a final court decision, not subject to appeal, has ruled
that the circumstances which have led to the extension of the Call Option
Period and/or of the Put Option Period cannot be lifted, that each Bank
will be entitled to request France Telecom to pay to such Bank the Sale
Price of such Bank as if the transfer of the Option Stock could occur and
France Telecom will have to pay such Sale Price within 5 Business Days
from such request; in such circumstances after such payment and as long
as France Telecom cannot become the holder of the Option Stock (i) each
Bank shall use its best efforts to transfer the Option Stock to France
Telecom as soon as possible, (ii) each Bank shall ensure that all income
(net of any Tax bearing on such Bank in respect thereof) received by such
Bank in relation with the Option Stock be transferred to France Telecom
as soon as possible after receipt and (iii) to the maximum extent
possible without suffering a prejudice therefrom, each Bank will utilize
its best efforts, in good faith, to accept any possible alternate
solution to the payment of the Sale Price.
15.3 As long as the Call Option Period and/or the Put Option Period are
extended beyond the Termination Date as provided in clause 15.1 and
unless the Sale Price has been paid in accordance with the provisions of
clause 15.2, for the first time on the Termination Date, then on the date
which is falling six months after the Termination Date and thereafter on
each date which is falling six months after the preceding date on which
such a payment is made, France Telecom shall pay to each Bank a premium
calculated like the Option Premium except that the Relevant Margin shall
be equal to 0.50 per cent per annum.
15.4 As long as the Call Option Period and/or the Put Option Period are
extended beyond the Termination Date as provided in clause 15.1, to the
extent the Banks receive (or are deemed to receive for tax purposes) any
income in relation with the Preferred Stock and have to pay Taxes in
connection therewith, without limiting the generality of the provisions
of clauses 7.2 and 11.2, France Telecom shall (within 5 Business Days of
demand by the Bank Representative) pay to such Banks an amount sufficient
to ensure that, after the making of such payment, such Banks are fully
indemnified for any such Taxes including any Tax on any amount so
received pursuant to this clause 15.4.
15.5 As long as the Call Option Period and/or the Put Option Period are
extended beyond the Termination Date, and more generally any time a
substantive provision of this Agreement cannot be applied in accordance
with its terms, the parties to this Agreement agree to meet in good faith
to try to find any possible alternative solution which will allow the
parties to this Agreement to maintain generally the economic equilibrium
of this Agreement and achieve their original intentions when entering
into this Agreement, provided that nothing in this clause 15.5 shall
entail that, in order to achieve such objective, any Bank shall have to
suffer a prejudice or take any action which it considers, in good faith,
to be detrimental to it.
25
15.6 Except as provided in clauses 15.1 through 15.5, all the provisions of
this Agreement will remain unchanged as long as the Call Option Period
and/or the Put Option Period are extended as provided in clause 15.1.
16. Assignments and Transfers
16.1 This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors.
16.2 None of the parties hereto may assign or transfer any of its rights or
obligations under this Agreement without, in the case of France Telecom,
having obtained the prior written consent of the Bank Representative on
behalf of the Banks and, in the case of any Finance Party, the prior
written consent of France Telecom which, in the case of an assignment or
transfer to any such Finance Party's Affiliate, shall not be refused
without reasonable justification.
17. Bank Representative
17.1 Each Bank hereby appoints the Bank Representative to act as its agent in
connection herewith and authorises the Bank Representative to exercise
such rights, powers and discretions as are specifically delegated to the
Bank Representative by the terms hereof together with all such rights,
powers and discretions as are reasonably incidental thereto (it being
declared, for the avoidance of doubt, that the Bank Representative shall
have no authority to commence legal proceedings against France Telecom on
behalf of any Bank without the prior written consent of such Bank).
17.2 The Bank Representative may:
(i) assume that none of those events mentioned in clause 10 Put
Acceleration Events has occurred and that France Telecom is not in
breach of its obligations hereunder unless it has actual knowledge
or actual notice to the contrary;
(ii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem reasonably necessary, expedient or desirable and
rely upon any advice so obtained;
(iii) rely as to any matters of fact which might reasonably be expected
to be within the knowledge of France Telecom upon a certificate
signed by or on behalf of France Telecom;
(iv) rely on any communication or document believed by it to be
genuine;
(v) refrain from exercising any right, power or discretion vested in
it hereunder unless and until instructed by the Majority Banks as
to whether or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the manner in which
it should be exercised; and
26
(vi) refrain from acting in accordance with any instructions of the
Majority Banks to begin any legal action or proceeding arising out
of or in connection with this Agreement until it shall have
received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, expenses
(including legal fees) and liabilities which it will or may expend
or incur in complying with such instructions.
17.3 The Bank Representative shall:
(i) promptly inform each Bank of the contents of any notice or
document received by it from France Telecom hereunder;
(ii) promptly notify each Bank of the occurrence of any of those events
mentioned in clause 10 Put Acceleration Events or any default by
France Telecom in the due performance of its obligations under
this Agreement of which the Bank Representative has actual
knowledge or actual notice;
(iii) subject to the foregoing provisions of this clause, act in
accordance with any instructions given to it by the Majority
Banks; and
(iv) if so instructed by the Majority Banks, refrain from exercising a
right, power or discretion vested in it hereunder.
17.4 Notwithstanding anything to the contrary expressed or implied herein, the
Bank Representative shall not:
(i) be bound to enquire as to the occurrence or otherwise of any
of those events mentioned in clause 10 Put Acceleration Events or
as to the performance or otherwise by France Telecom of its
obligations hereunder;
(ii) be bound to account to any Bank for any sum or the profit element
of any sum received by it for its own account;
(iii) be bound to disclose to any other person any information relating
to France Telecom if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person; or
(iv) be under any obligation other than those for which express
provision is made herein.
17.5 Subject to the appointment and acceptance of a successor Bank
Representative as provided below, the Bank Representative may at any time
and upon not less than 60 (sixty) days' notice from the Majority Banks
shall resign as Bank Representative by giving written notice to the Banks
and France Telecom. Upon any such resignation, the Majority Banks shall
have the right to appoint a successor Bank Representative acceptable to
France Telecom. If no successor Bank Representative shall have been so
appointed by the Majority Banks and shall have accepted such appointment
within thirty days after the
27
retiring Bank Representative gave notice of resignation, the retiring
Bank Representative may on behalf of the Banks, appoint a successor
Bank Representative, which shall be a Bank or a bank which is a
subsidiary or a parent company of a Bank. Upon the acceptance of any
appointment as Bank Representative by a successor Bank Representative,
such successor Bank Representative shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of
the retiring Bank Representative, and the retiring Bank Representative
shall be discharged from its duties and obligations hereunder as Bank
Representative. The provisions of this clause 17.5 shall continue in
effect for the benefit of the retiring Bank Representative in respect
of any actions taken or omitted to be taken by it while it was acting
as the Bank Representative.
17.6 The Bank Representative shall be indemnified by each Bank against any and
all costs, claims, expenses (including but not limited to legal fees) and
liabilities which the Bank Representative may incur in complying with any
instructions received by it from the Majority Banks in the proportion
which the Purchase Price of such Bank bears to the aggregate amount of
all Purchase Prices, provided no Bank shall have any obligation under
this clause 17.6 to indemnify the Bank Representative against any such
costs, claims, expenses and liabilities incurred by the Bank
Representative in the course of any legal proceedings taken against
France Telecom without the prior written consent of such Bank.
17.7 The Bank Representative does not accept any responsibility for the
accuracy and/or completeness of any information supplied to any Bank in
connection with the transactions contemplated by this Agreement or the
Purchase Agreement or for the legality, validity, effectiveness, adequacy
or enforceability of this Agreement or the Purchase Agreement and the
Bank Representative shall not be under any liability as a result of
taking or omitting to take any action in relation to this Agreement save
in the case of gross negligence or wilful misconduct.
17.8 Each Bank agrees that it will not assert or seek to assert against any
director, officer or employee of the Bank Representative any claim it
might have in respect of the matters referred to in clause 17.7.
17.9 The Bank Representative may accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with
France Telecom.
17.10 It is understood and agreed by each Bank that it has itself been, and
will continue to be, solely responsible for making its own independent
appraisal of and investigation into the financial condition,
creditworthiness, affairs, status and nature of France Telecom and NTL
and accordingly each Bank confirms to the Bank Representative that it has
not relied, and will not hereafter rely, on the Bank Representative:
(i) to check or inquire on its behalf into the adequacy, accuracy
or completeness of any information provided by France Telecom and
NTL in connection with this Agreement or the Purchase Agreement or
the transactions therein contemplated (whether or not such
information has been or is hereafter circulated to such Bank by
the Bank Representative); or
28
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, affairs, status or nature of France
Telecom and NTL.
18. Accession of New Banks
To the extent that prior to the Date of Issue France Telecom substitutes to
itself, in whole or in part, one or more banks to acquire Preferred Stock under
the Purchase Agreement, any such bank (an "Additional Bank") shall become party
to this Agreement and shall be allowed to participate in the arrangements
contemplated by this Agreement, in which case, upon and with effect from
delivery to the Bank Representative by such Additional Bank and France Telecom
of an Accession Notice in the form attached as Exhibit 18, such Additional Bank
shall be treated as a Bank as if it had been named as such at the beginning of
this Agreement, provided that such Additional Bank is a first rank bank
established in Paris, with a rating of its long-term debt by Standard & Poors of
at least "A" unless the prior written approval of the Majority Banks has been
obtained, such approval not to be unreasonably withheld.
19. Applicable Law and Jurisdiction
19.1 This Agreement and the rights and obligations of the parties shall be
governed by and construed in accordance with the law of the State of New
York, United States of America.
19.2 Each of the Finance Parties and France Telecom irrevocably agrees that
any legal suit, action or proceeding against it arising out of or in
connection with this Agreement, the Preferred Stock or the Option Stock,
as the case may be, may be instituted in the Supreme Court of the State
of New York, County of New York or the U.S. District Court for the
Southern District of New York, as applicable, and irrevocably waives any
objection which it may now or hereinafter have to the laying of venue of
any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding.
20. Entire Agreement
This Agreement constitutes the entire and only legally binding agreement
between the parties relating to its subject matter and no amendment or
modification of this Agreement shall be effective unless made in writing
signed by or on behalf of all the parties and expressed to be such an
amendment or modification.
21. Notices
21.1 Any notice shall be in writing and signed by or on behalf of the person
giving it. Except in the case of personal service, any notice shall be
sent or delivered to the party to be served at the address given below or
in the Accession Notice in the case of an Additional Bank. Any alteration
in such details shall, to have effect, be notified to the other parties
in accordance with this clause.
21.2 Service of a notice must be effected by one of the following methods:
29
21.2.1 personally on an authorized representative of France Telecom
or a Bank or the Bank Representative, as the case may be, in
which case notice shall be treated as served at the time of
such service;
21.2.2 by prepaid first class mail (or by airmail if from one country
to another) to the address of France Telecom, a Bank or the
Bank Representative, as the case may be, and shall be treated
as served on the second (or if by airmail the fourth) Business
Day after the date of posting. In proving service it shall be
sufficient to prove that the envelope containing the notice
was correctly addressed, postage paid and posted; or
21.2.3 by facsimile to France Telecom, a Bank or the Bank
Representative, as the case may be, in which case notice shall
be treated as served at the expiration of 2 hours after the
time of dispatch, if dispatched before 3.00 p.m. on any
Business Day and, in any other case, at 10.00 a.m. on the
Business Day following the date of dispatch, but in any event
only if a confirmation of the receipt by the recipient of the
facsimile appears correctly on the sender's facsimile
transmission report.
30
21.3 The relevant address and facsimile numbers of the parties are as follows:
----------------------------- ------------------------- -------------------------- ------------------------
Party Attention Facsimile number Address
----------------------------- ------------------------- -------------------------- ------------------------
the Bank Representative Damien Scaillierez (00-0) 00-00-00-00 Credit Agricole
Indosuez
0, Xxxx xx Xxxxxxxxx
Xxxx Xxxxxx
00000 Xxxxxxxxxx,
Xxxxxx
----------------------------- ------------------------- -------------------------- ------------------------
Banque Nationale de Paris Xxxxxxxx Xxxx (00-0) 00-00-00-00 Financements Structures
00, Xxxxxxxxx xxx
Xxxxxxxx
00000 Xxxxx, Xxxxxx
----------------------------- ------------------------- -------------------------- ------------------------
Credit Agricole Indosuez Damien Scaillierez (00-0) 00-00-00-00 Credit Agricole
Indosuez
0, Xxxx xx Xxxxxxxxx
Xxxx Xxxxxx
00000 Xxxxxxxxxx,
Xxxxxx
----------------------------- ------------------------- -------------------------- ------------------------
Deutsche Bank XX Xxxxxx Xxxxxxxxx (33-1) 42-89-00-45 0, Xxxxxx xx Xxxxxxxxx
Xxxxx Xxxxxx 00000 Xxxxx, Xxxxxx
----------------------------- ------------------------- -------------------------- ------------------------
Westdeutsche Landesbank Xxxxxx Xxxxx (33-1) 45-63-15-71 00, Xxxxxx xx Xxxxxxxxx
Xxxxxxxxxxxx 00000 Xxxxx, Xxxxxx
Paris Branch
----------------------------- ------------------------- -------------------------- ------------------------
France Telecom Xxxxxx XxXxxxxxxx (33-1) 000, xxx Xxxxxxx
00-00-00-00 Xxxxxxxxx
00000 Xxxxx,
Xxxxxx
----------------------------- ------------------------- -------------------------- ------------------------
with a copy to:
Shearman & Sterling Xxxxxx X. Xxxx, Xx. (212) 848-7179 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX
00000, X.X.X.
----------------------------- ------------------------- -------------------------- ------------------------
22. Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under this Agreement shall operate as
a waiver, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
31
THIS AGREEMENT has been duly executed on the date stated above.
BANQUE NATIONALE DE PARIS
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxxxxxx Xxxxxxxxxxxx
-------------------------- --------------------------------
Title : Directeur Title : Directeur Adjoint
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Damien Scaillierez
-------------------------- --------------------------------
Title : Head of Acquisition Title : Fonde de Pouvoir
Finance
DEUTSCHE BANK AG
PARIS BRANCH
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Antoine de Maistre
-------------------------- --------------------------------
Title : Directeur Title :
WESTDEUTSCHE LANDESBANK GIROZENTRALE
PARIS BRANCH
By: /s/ Xxxxxxx Selves By: /s/ Xxxxxx Veldung
-------------------------- --------------------------------
Title : Directeur Title : Directeur
FRANCE TELECOM
By: /s/ Xxxx Xxxxxxx By:
-------------------------- --------------------------------
Title : Head of the Mergers Title :
& Acquisitions Department
CREDIT AGRICOLE INDOSUEZ,
as Bank Representative
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Damien Scaillierez
-------------------------- --------------------------------
Title : Head of Acquisition Title : Fonde de Pouvoir
Finance
32
EXHIBIT 3.3
NOTICE
[To be delivered for purposes of exercising the Put or Call Option]
To: [______](1)
Reference is hereby made to the Put and Call Option Agreement dated
February 17, 2000, among Banque Nationale de Paris, Credit Agricole Indosuez,
Deutsche Bank AG Paris Branch, Westdeutsche Landesbank Girozentrale Paris Branch
and France Telecom [as amended](2). The undersigned hereby gives notice pursuant
to clause [___](3) of the Put and Call Option Agreement that it irrevocably
exercises its rights under the Put and Call Option Agreement (Put Option/Call
Option)(4) to [sell/purchase](4) [___] shares of 5% Cumulative Preferred Stock,
Series A of NTL Incorporated, with a Completion Date for delivering the shares
and the amount payable with respect thereto under the Put and Call Option
Agreement to be on [___], 200[___].(5)
Payment of the Purchase Price (being US $ _____________) shall be made
in same day funds to the undersigned at [insert payment instructions].
[In case of exercise of the Call Option, if applicable indicate the
name of the Subsidiary of France Telecom to receive and pay for the Option Stock
and relevant instructions.]
Dated: [_____________]
[ENTITY NAME]
By: ___________________
Name:
Title:
--------------------------------------------------------------------------------
1 If notice is given by a Bank or the Bank Representative of its
exercise of the Put Option, notice should be given to France Telecom. If notice
is given by France Telecom of its exercise of the Call Option, notice should be
given to the Bank Representative and in connection with clause 4.6 to each Bank
concerned.
2 Delete if not necessary.
3 Refer to appropriate clause: clause 3.3 or 10.2 with respect to the
Put Option; 4.2 with respect to the Call Option.
4 Delete inapplicable references.
5 Specify a Completion Date which is not less than 5 Business Days (for
the Call Option) or 8 Business Days (for the Put Option) from the date of the
notice and which will be at the latest on the Termination Date.
(i)
EXHIBIT 3.4
STOCK POWER
FOR VALUE RECEIVED, [_____________] does hereby sell, assign and transfer
unto [_____________] Shares of 5% Cumulative Preferred Stock, Series A of NTL
Incorporated represented by Certificate No. [_____________] (the "Stock"),
standing in its name on the books of said corporation and does hereby
irrevocably constitute and appoint [_____________] attorney to transfer the said
Stock on the books of said corporation with full power of substitution in the
premises.
Dated: [_____________], 200[__]
[NAME OF ENTITY]
By: ___________________
Name:
In presence of:
----------------
Name:
(ii)
EXHIBIT 18
FORM OF ACCESSION NOTICE TO BE DELIVERED
BY AN ADDITIONAL BANK PURSUANT TO CLAUSE 18
To: [Bank Representative]
(a) Reference is hereby made to the Put and Call Option Agreement
dated February 17, 2000, among Banque Nationale de Paris, Credit
Agricole Indosuez, Deutsche Bank AG Paris Branch, Westdeutsche
Landesbank Girozentrale Paris Branch and France Telecom (the
"Option Agreement"). Terms defined in the Option Agreement have
the same meanings herein.
(b) We hereby confirm and give you notice pursuant to clause 18
Accession of New Banks of the Option Agreement that we wish to
accede to the Option Agreement and become a Bank for purposes of
the Option Agreement.
(c) We hereby confirm that we have received a copy of the Option
Agreement and the Purchase Agreement and attached Certificate of
Designation and hereby undertake and agree to be bound by the
terms and conditions thereof insofar as such terms and conditions
apply to a Bank.
(d) We hereby confirm that our Option Stock will, upon closing of the
purchase thereof, consist of [______] shares of Preferred Stock.
(e) We hereby confirm that at the date hereof the representations set
out in clause 9.2 of the Option Agreement would be true (to the
extent that such representations can relate to ourselves) if
repeated by reference to and in respect of ourselves on the date
of this Notice and hereby repeat the same.
(f) We hereby confirm that we have received separately on the date
hereof from France Telecom the fees which should have been due to
us on or prior to the date hereof pursuant to the provisions of
clause 6.1 of the Option Agreement.
(g) Our details for notices under the Option Agreement are:
Address:
Telephone Number:
Telex Number:
Facsimile Number:
(iii)
(h) This Accession Notice shall be governed by and construed in
accordance with the laws of the State of New York, United States
of America applicable to contracts executed in and to be performed
entirely in that state and without regard to any applicable
conflicts of law principles.
[NAME OF ENTITY]
---------------
by:
We hereby confirm our acceptance of the accession by [________] to the
Option Agreement as provided above and hereby confirm that from the date
hereof we agree to treat [________] as a Bank under the Option Agreement
as if it had been named as such at the beginning of the Option Agreement.
France Telecom
By : ________________
Title:
(iv)
