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[GRAPHIC OMITTED] LIMITED LIABILITY PARTNERSHIP
Exhibit 4.4
CONFORMED COPY
PRIMACOM MANAGEMENT GMBH
AS BORROWER
THE COMPANIES SPECIFIED HEREIN
AS GUARANTORS
PRIMACOM AG
AS HOLDING COMPANY
BANK OF AMERICA INTERNATIONAL LIMITED
BARCLAYS CAPITAL
CHASE MANHATTAN PLC
DRESDNER BANK AG, LONDON BRANCH
FORTIS BANK (NEDERLAND) N.V.
ING BANK N.V.
THE ROYAL BANK OF SCOTLAND plc
AND
TD BANK EUROPE LIMITED
AS LEAD ARRANGERS
CHASE MANHATTAN BANK AG
AS AGENT, FRONTING BANK, OVERDRAFT BANK AND SECURITY TRUSTEE
AND OTHERS
EUR 1,000,000,000
FACILITY AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation................................................................................ 1
2. The Facilities................................................................................ 27
3. Purpose....................................................................................... 28
4. Conditions Precedent.......................................................................... 29
5. Nature Of Banks' And Borrower's Obligations................................................... 29
6. Utilisation Of The Facility................................................................... 31
7. Issue Of Letters Of Credit.................................................................... 36
8. Liabilities Under Letters Of Credit........................................................... 37
9. Letter Of Credit Commission And Fronting Bank Fee............................................. 40
10. Interest...................................................................................... 41
11. Market Disruption And Alternative Interest Rates.............................................. 42
12. Repayment And Reduction....................................................................... 43
13. Cancellation And Voluntary Prepayment......................................................... 44
14. Mandatory Prepayment.......................................................................... 45
15. Taxes......................................................................................... 47
16. Tax Receipts.................................................................................. 48
17. Increased Costs............................................................................... 49
18. Illegality.................................................................................... 50
19. Mitigation.................................................................................... 51
20. Representations............................................................................... 51
21. Information................................................................................... 57
22. Financial Condition........................................................................... 60
23. Covenants..................................................................................... 64
24. Events Of Default............................................................................. 78
25. Default Interest And Indemnity................................................................ 82
26. Currency Of Account And Payment............................................................... 84
27. Payments...................................................................................... 85
28. Set-Off....................................................................................... 87
29. Redistribution Of Payments.................................................................... 87
30. Commitment Commission And Fees................................................................ 89
31. Costs And Expenses............................................................................ 89
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32. Guarantee..................................................................................... 90
33. Preservation Of Rights........................................................................ 91
34. The Agent, The Arrangers, The Fronting Bank And The Banks..................................... 93
35. Benefit Of Agreement.......................................................................... 98
36. Assignments And Transfers By The Obligors..................................................... 98
37. Assignments And Transfers By Banks............................................................ 98
38. Disclosure Of Information..................................................................... 100
39. Sub-Participation............................................................................. 100
40. Calculations And Evidence Of Debt............................................................. 101
41. Remedies And Waivers.......................................................................... 102
42. Partial Invalidity............................................................................ 102
43. Notices....................................................................................... 102
44. Counterparts.................................................................................. 103
45. Group Structure Changes And Permissions....................................................... 103
46. Amendments, Consents.......................................................................... 106
47. Law........................................................................................... 107
48. Jurisdiction.................................................................................. 108
SCHEDULE 1 The Banks..................................................................................... 109
SCHEDULE 2 Form Of Transfer Certificate.............................................................. 110
SCHEDULE 3 Condition Precedent Documents............................................................. 113
SCHEDULE 4 Notice Of Drawdown........................................................................ 116
SCHEDULE 5 Form Of Compliance Certificate............................................................ 118
SCHEDULE 6 Quarterly Subscriber Certificate.......................................................... 120
SCHEDULE 7 Form Of Guarantor Accession Memorandum.................................................... 121
SCHEDULE 8 Documents To Accompany Guarantor Accession Memorandum..................................... 123
SCHEDULE 9 Members Of The Multikabel Group Granting Security......................................... 124
SCHEDULE 10 General Business Conditions.............................................................. 125
SCHEDULE 11 Forms Of Letter Of Credit And Guarantee.................................................. 126
Part A Form Of Letter Of Credit To Be Issued By A Fronting Bank........................ 126
Part B Form Of Guarantee To Be Issued By A Fronting Bank............................... 129
SCHEDULE 12 Facility Reduction Schedule.............................................................. 132
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SCHEDULE 13 The Original Guarantors.................................................................. 133
SCHEDULE 14 Mandatory Costs.......................................................................... 135
SCHEDULE 15 Requirements Certificate................................................................. 137
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THIS AGREEMENT is made as of the eighteenth day of September 2000
BETWEEN
(1) PRIMACOM MANAGEMENT GMBH as borrower (the "BORROWER");
(2) EACH OF THE PERSONS SPECIFIED IN SCHEDULE 13 HERETO as guarantors (each an
"ORIGINAL GUARANTOR");
(3) PRIMACOM AG (the "HOLDING COMPANY");
(4) BANK OF AMERICA INTERNATIONAL LIMITED, BARCLAYS CAPITAL, CHASE MANHATTAN
PLC, DRESDNER BANK AG, LONDON BRANCH, FORTIS BANK (NEDERLAND) N.V., ING
BANK N.V., THE ROYAL BANK OF SCOTLAND PLC and TD BANK EUROPE LIMITED as
lead arrangers (the "LEAD ARRANGERS");
(5) CHASE MANHATTAN BANK AG as agent (the "AGENT") and security trustee (the
"SECURITY TRUSTEE");
(6) CHASE MANHATTAN BANK AG as fronting bank (the "FRONTING BANK");
(7) CHASE MANHATTAN BANK AG as overdraft bank (the "OVERDRAFT BANK"); and
(8) THE FINANCIAL INSTITUTIONS named in Schedule 1.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 IN THIS AGREEMENT:
"ACCOUNT PLEDGES" means each of the account pledge agreements over the
bank accounts held by certain members of the Group (other than the
Target Account Pledges);
"ACQUISITION" means any acquisition (other than the Multikabel
Acquisition), whether by way of share or asset purchase by members of
the Group of any entity which engages in, or any business which relates
to, the provision of Broadband Services (in each case, the "TARGET");
"ADDITIONAL GUARANTOR" means any company which has executed and
delivered a Guarantor Accession Memorandum pursuant to sub-clause 45.1.1
of Clause 45.1 (Additional Guarantors);
"ADDITIONAL SECURITY" has the meaning ascribed thereto in sub-clause
23.4.1 of Clause 23.4 (Positive Covenants of the Holding Company);
"ADVANCE" means a cash advance made or to be made by the Banks under the
Facility;
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"APPROVED TARGET" means any entity or business which is located in
Germany or the Netherlands or any other jurisdiction acceptable to an
Instructing Group, and in each case whose principal activities are
related to the provision of Broadband Services;
"ANNUALISED EBITDA" means, at any time, Consolidated EBITDA for the most
recently ended Quarterly Period, multiplied by four (as adjusted to
reflect any Acquisitions and Asset Disposals during such Quarterly
Period);
"APA" means APA Basic Beteiligungs GmbH;
"ARRANGERS" means the Lead Arrangers and the Co-Arrangers (if any);
"ASSET DISPOSAL" means any disposal of any assets by any member of the
Group after the date of this Agreement other than any disposal of assets
permitted in accordance with sub-clause 23.2.5 of Clause 23.2 (Negative
Covenants);
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save
as otherwise provided herein, such Bank's Commitment at such time less:
(a) the amount of such Bank's participation in any Advance
outstanding hereunder; and
(b) the amount of such Bank's L/C Proportion of the Letter of Credit
Outstanding of each Letter of Credit which has been issued and
is outstanding hereunder;
"AVAILABLE FACILITY" means, at any time, the aggregate of the Available
Commitments of the Banks adjusted, in the case of a proposed Utilisation
of the Facility, so as to take into account:
(a) any reduction in the Commitment of a Bank which will occur prior
to the commencement of, or during the Term of the proposed
Utilisation;
(b) the amount of any Advance and/or Letter of Credit which is due
to be made on or before the proposed Utilisation Date; and
(c) the amount of any Advance and/or Letter of Credit which is due
to be repaid or expire on or before the proposed Utilisation
Date;
"BANK" means any financial institution:
(a) named in Schedule 1 (The Banks); or
(b) which has become a party hereto as a Bank in accordance with
Clause 37.2 (Assignments by Banks) or Clause 37.3 (Transfers by
Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof;
"BANK INTERCREDITOR AGREEMENT" means the intercreditor agreement entered
into or to be entered into between the Agent, the Banks, the Fronting
Bank, the Overdraft Bank, the Working Capital Lenders and the Security
Trustee;
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"BENEFICIARIES" shall have the meaning ascribed thereto in the Obligor
Intercreditor Agreement;
"BROADBAND SERVICES" means cable television services, internet and other
broadband telecommunications services (including (without limitation)
voice telephony services);
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks generally are open for business in London and:
(a) (in relation to any date for payment or purchase of a sum
denominated in a currency other than the euro) the principal
financial centre of the country of such currency; or
(b) (in relation to any date for payment or purchase of a sum
denominated in the euro) any TARGET Day;
"BUSINESS PLAN" means the Original Business Plan, or at any time after
the consolidated business plan of the Financial Group is delivered
pursuant to sub-clause 21.1.3 of Clause 21.1 (Financial Statements), the
most recent consolidated business plan delivered pursuant thereto;
"CASH COLLATERAL" means, in relation to any Letter of Credit, a deposit
in such interest bearing account or accounts as the Agent may specify,
such deposit and account to be secured in favour of or on behalf of, and
on terms acceptable to, the Agent;
"CAPITAL EXPENDITURE" means any expenditure (including any obligation in
respect of the capital element of any finance lease or capital lease)
for the acquisition of equipment, fixed assets, real property,
intangible assets and other assets of a capital nature, or for the
replacements or substitutions therefor or additions or improvements
thereto, that in any such case have a useful life of more than one year
together with costs incurred in connection therewith.
"CHARGED ACCOUNT" means an interest bearing account with the Security
Trustee in the name of the Borrower, which is pledged in favour of the
Banks pursuant to an Account Pledge;
"CLOSING DATE" means the date of this Agreement;
"CO-ARRANGER" means any financial institution, being a Bank or an
affiliate of a Bank, which becomes a party hereto as a co-arranger;
"COMMITMENT" means in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name in Schedule
1 (The Banks);
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (Compliance Certificate);
"CONSIDERATION" means, at any time, the value of cash or cash equivalent
assets actually paid or to be paid by any member of the Group in respect
of any Acquisition
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(including any escrow deposits), together with all indebtedness and
liabilities to any person, including any contingent payments (whether
related to future earnings, operations or otherwise) payable in the
future (determined in accordance with the reasonable estimate of the
Borrower which estimate shall be agreed by an Instructing Group (such
agreement not to be unreasonably withheld or delayed)), plus any
incidental or consequential costs (including any redundancy payments,
restructuring expenses or any other rationalisation costs and whether
accounted for as a capitalised expense or through the raising of a
provision) likely to be incurred by the Group arising in connection with
or as a result of the Acquisition as notified to the Agent by the
Borrower (if such costs exceed 1 per cent. of the Consideration);
"CONSOLIDATED EBITDA" means, at any time and in respect of any Quarterly
Period, the EBITDA of the Financial Group;
"DEFERRED CONSIDERATION" means any amounts paid or payable or which will
be paid or payable as part of the Consideration for an Acquisition after
the date of completion of the Acquisition;
"DISPOSAL CONSIDERATION" means at any time, the value of cash or cash
equivalent assets received by any member of the Group in respect of any
Asset Disposal, together with all indebtedness and liabilities owing to
any member of the Group which is repaid upon such disposal, any
contingent payments (whether related to future earnings, operations or
otherwise) payable in the future and, in the case of a disposal of
shares, the value of any pre-completion dividends paid to any member of
the Group by any company whose shares are the subject of an Asset
Disposal which is effected as part of an arrangement for, or in
contemplation of, a disposal of that company;
"EBITDA" means, in relation to the Financial Group (or any part
thereof), in respect of any period and as calculated in accordance with
U.S. GAAP, Net Revenues of the Financial Group (or such part thereof)
during such period less all operating expenses incurred during such
period before the deduction of depreciation, amortisation, other non
cash charges, extraordinary items, Interest Expense and taxation (in
each case in respect of such period) (save that for the purposes of the
financial covenants set out in Clause 22 (Financial Condition) for the
period from the Closing Date up to (and including) 31 December 2000 any
charges relating to redundancy costs shall be ignored in the calculation
of EBITDA during such period);
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union;
"EMU LEGISLATION" means legislative measures of the European Union for
the introduction of, changeover to or operation of the euro in one or
more Member Sates, being in part legislative measures to implement EMU;
"ENVIRONMENTAL CLAIM" means any claim, notice of violation, prosecution,
demand, action, official warning or other investigation pursuant to any
Environmental Law;
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"ENVIRONMENTAL LAWS" includes all or any laws, statutes, regulations,
treaties, and judgements of any governmental authority or agency or any
regulatory body in any jurisdiction in which any member of the Group is
formed or carries on business or of the European Community, relating to
the pollution or protection of the environment or harm to or the
protection of human health or the health of animals or plants, and
applicable to any member of the Group and/or the construction,
installation and operation of cable television and telecommunications
systems in the areas covered by the Licences and/or any other activities
from time to time carried on by any member of the Group and/or the
occupation or use of any property owned, leased or occupied by any
member of the Group;
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law
for the construction, installation and operation of cable television and
telecommunications systems in the franchise areas and/or for any other
activities from time to time carried on by any member of the Group;
"ENW INDEBTEDNESS" means, at any time, the aggregate of the indebtedness
outstanding at such time under (a) the NLG 30,084,000 facility and (b)
the NLG 8,400,000 facility in each case extended by Energie Noord-West
to Multikabel;
"EURIBOR" means, in relation to any amount to be advanced to, or owing
by, an Obligor under the Facility Documents in euro on which interest
for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which displays
the rate of the Banking Federation of the European Union for
euro (being currently page 248) for such period as of 11.00 a.m.
(Brussels time) on the Quotation Date for such period or, if
such page or such service shall cease to be available, such
other page or such other service for the purpose of displaying
an average rate of the Banking Federation of the European Union
as the Agent, after consultation with the Banks and the
Borrower, shall select; or
(b) if no quotation for euro for the relevant period is displayed
and the Agent has not selected an alternative service on which a
quotation is displayed, the arithmetic mean (rounded upwards to
four decimal places) of the rates (as notified to the Agent) at
which each of the Reference Banks was offering to prime banks in
the European interbank market deposits in euro of an equivalent
amount and for such period as of 11.00 a.m. (Brussels time) on
the Quotation Date;
"EURO AMOUNT" means in relation to a Letter of Credit at any time:
(a) if such Letter of Credit is denominated in euro, the maximum
actual and contingent liability of the Fronting Bank (or the
Banks) thereunder or in respect thereof at such time; and
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(b) if such Letter of Credit is denominated in dollars, the
equivalent in euro of the maximum actual and contingent
liability of the Fronting Bank (or the Banks) thereunder or in
respect thereof at such time, calculated as at the later of the
dates which falls (1) two Business Days before its issue date or
(2) the most recent L/C Valuation Date;
"EVENT OF DEFAULT" means any of those events specified in Clause 24
(Events of Default);
"EXCESS CASH FLOW" means, in relation to the Financial Group and for any
Quarterly Period or financial year of the Financial Group, EBITDA of the
Financial Group for such period less (a) Fixed Charges for such period
and (b) EUR1,550,000 (or EUR385,000 if such period is a Quarterly
Period);
"EXISTING MULTIKABEL ENCUMBRANCES" means the encumbrances of the
Multikabel Group existing on the date of completion of the Multikabel
Acquisition and as declared in the certificate delivered pursuant to
Clause 4 (Conditions Precedent) and paragraph 16 of Schedule 3
(Conditions Precedent);
"EXISTING PRIMACOM ENCUMBRANCES" means the encumbrances of the Financial
Group existing on the date hereof and as declared in the certificate
delivered pursuant to Clause 4 (Conditions Precedent) and paragraph 16
of Schedule 3 (Conditions Precedent);
"EXISTING INDEBTEDNESS" means the Existing Multikabel Indebtedness and
the Existing PrimaCom Indebtedness;
"EXISTING MULTIKABEL INDEBTEDNESS" means the indebtedness of the
Multikabel Group existing on the date hereof, the details of which have
been delivered to the Agent prior to the date hereof;
"EXISTING PRIMACOM INDEBTEDNESS" means the indebtedness of the Group
outstanding pursuant to the EUR460,169,752 facility agreement (being an
amendment and restatement of the DM600,000,000 facility agreement
entered into between (amongst others,) certain banks and financial
institutions and the Borrower dated 23 December 1998), (including any
amounts outstanding under the Overdraft Facility (as defined therein);
"EXPIRY DATE" means in respect of a Letter of Credit the date specified
as such in the Notice of Drawdown in relation to such Letter of Credit;
"FACILITY" means the revolving loan and letter of credit facility of EUR
985,000,000 granted by the Banks to the Borrower hereunder;
"FACILITY AMOUNT" means, at any time, the aggregate amount of the
Commitments of the Banks at such time;
"FACILITY DOCUMENTS" means this Agreement, the Security Documents, the
Obligor Intercreditor Agreement, the Bank Intercreditor Agreement, the
Overdraft Letter, any
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Hedge Contract and any other agreement, document, letter, deed, notice
or certificate designated as such by the Agent and the Holding Company,
together with all amendments of, and supplements to, any of the
foregoing and "FACILITY DOCUMENT" shall be construed accordingly;
"FACILITY OFFICE" means, in relation to the Agent, the office identified
with its signature below and, in relation to any Bank, the office
notified by it to the Agent in writing prior to the date hereof (or, in
the case of a Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee) or in each case such other office as
it may from time to time select;
"FINANCE LEASE" means any lease or hire purchase contract which would,
in accordance with U.S. GAAP, be treated as a finance or capital lease;
"FINANCIAL GROUP" means the Holding Company and each of its subsidiaries
from time to time;
"FINAL MATURITY DATE" means 30 September 2009 (or if such day is not a
Business Day, the next succeeding Business Day);
"FINANCE PARTIES" means the Agent, the Arrangers, the Banks, the
Security Trustee, the Overdraft Bank and the Fronting Bank;
"FIXED CHARGES" means in respect of any period the sum of Total Cash
Interest Expense and Capital Expenditure, taxes and all scheduled
payments of principal during that period (each calculated on a
consolidated basis);
"FORCED DRAWING" means a borrowing by the Holding Company under the
Working Capital Facility which has either:
(a) been required by the Working Capital Lenders to be drawn
pursuant to the terms of the Working Capital Facility; or
(b) been required by the Finance Parties to be drawn pursuant to the
terms of the Bank Intercreditor Agreement either (i) due to the
occurrence of an Event of Default hereunder, (ii) in
circumstances where the Holding Company has requested a
borrowing under the Working Capital Facility and the Working
Capital Lenders have been required by an Instructing Group to
waive certain conditions precedent which would otherwise prevent
the borrowing from being drawn or (iii) in circumstances where
the availability period under the Working Capital Facility is
due to expire and the Working Capital Facility has not been
fully drawn;
"GERMANY" means the Federal Republic of Germany;
"GMBH SHARE PLEDGE" means the share pledge agreement over the shares of
those members of the Group listed in part 1 of Annex 3 of the Security
Trust Agreement;
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"GROUP" means the Borrower and each of its subsidiaries from time to
time and, prior to the completion of the Reorganisation, each of the
subsidiaries of the Holding Company;
"GROUP STRUCTURE CHARTS" means the group structure charts delivered to
the Agent pursuant to Clause 4 (Conditions Precedent) and described in
paragraph 23 of Schedule 3 (Conditions Precedent);
"GUARANTORS" means each of the Original Guarantors and any Additional
Guarantor and "GUARANTOR" means any of them;
"GUARANTOR ACCESSION MEMORANDUM" means a memorandum to be delivered by
any Additional Guarantor to the Agent substantially in the form set out
in Schedule 7 (Form of Guarantor Accession Memorandum) pursuant to
sub-clause 45.1.1 of Clause 45.1 (Additional Guarantors);
"HEDGE CONTRACT" means a contract between a bank or other financial
institution and any member of the Group relating to interest rate or
currency swaps, caps, floors, collars, forward sale or purchase
contracts, contracts for differences or any option transactions or any
other treasury transactions or any other transaction entered into in
connection with the management of risk related to indebtedness of the
Group;
"HOLDING COMPANY DEBT" means any indebtedness for borrowed money of the
Holding Company other than indebtedness arising under the Working
Capital Facility or the Senior Notes;
"HOLDING COMPANY MANAGEMENT EXPENSES" means (a) legal fees and fees of
any other professional advisers in each case incurred by the Holding
Company in connection with the Working Capital Facility, the issue of
Senior Notes or Holding Company Debt and (b) annual auditor's fees
incurred in connection with the preparation of audited annual
consolidated financial statements in accordance with sub-clause 21.1.1
of Clause 21.1 (Financial Statements) together with (c) other reasonable
expenses of the Holding Company properly incurred in the ordinary course
of business and on arm's length terms;
"INFORMATION MEMORANDUM" means the confidential information memorandum
dated September 2000 which at the request of the Borrower and on its
behalf, was prepared in relation to this transaction and distributed by
the Lead Arrangers to selected banks;
"INITIAL DUTCH SHARE PLEDGE" means the share pledge agreement and deed
over the shares of PrimaCom Netherlands Holding BV;
"INSTRUCTING GROUP" means:
(a) whilst no Advance or Letter of Credit is outstanding hereunder,
a group of Banks (which for these purposes may include the
Overdraft Bank) whose Commitments (in respect of the Overdraft
Bank, being for these purposes the amount of the Overdraft
Facility) amount (or, if each Bank's Commitment has
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been reduced to zero, did immediately before such reduction
to zero, amount) in aggregate to more than sixty six and two
thirds per cent. (66 2/3%) of the aggregate of the Facility
Amount and the amount of the Overdraft Facility; and
(b) thereafter, a group of Banks (which for these purposes may
include the Overdraft Bank) to whom in aggregate more than sixty
six and two thirds per cent. (66 2/3%) of the aggregate amount
of the Loan, the Letter of Credit Outstandings and the Overdraft
Amount is (or, immediately prior to repayment of such amounts,
was then) owed;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trade xxxx, service
xxxx, registered design, trade name or copyright required to carry on
the business of constructing, maintaining, using or operating cable
television and telecommunications systems;
"INTEREST EXPENSE" means, in relation to any Quarterly Period, the
aggregate of all interest (excluding capitalised interest) accrued
(whether or not paid or payable) during such Quarterly Period in respect
of indebtedness for borrowed money of members of the Financial Group
(other than indebtedness owed by one member of the Financial Group to
another member of the Financial Group);
"INTEREST PAYMENT DATE" means, in relation to any Advance, the last day
of the Term of such Advance, and if the Term of such Advance is more
than six months, in addition, on the expiry of each period of six months
during such Term;
"KG SHARE PLEDGE" means the share pledge agreement over the shares of
each of those members of the Group listed in Part 2 of Annex 3 of the
Security Trust Agreement;
"KPN CONTRACTS" means each of the broadcasting signal contracts between
KPN Telecom B.V. and each of Multikabel and Communikabel N.V.;
"L/C COMMISSION RATE" means, at any time, the rate equal to the Margin
at such time;
"L/C PROPORTION" means, in relation to a Bank in respect of a Letter of
Credit and save as otherwise provided herein, the proportion (expressed
as a percentage) borne by such Bank's Available Commitment to the
Available Facility immediately prior to the issue of such Letter of
Credit;
"L/C VALUATION DATE" means the first Business Day which falls six months
after the date hereof and each day falling at six monthly intervals
thereafter;
"LETTER OF CREDIT" means a letter of credit or guarantee issued or to be
issued by the Fronting Bank under the Facility pursuant to Clause 7
(Issue of Letters of Credit) substantially in the form set out in Part A
or, as the case may be, Part B of Schedule 11 (Forms of Letter of Credit
and Guarantee) (or in such other form as may be requested by the
Borrower PROVIDED THAT such form is acceptable to all the Banks and the
Fronting Bank);
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"LETTER OF CREDIT OUTSTANDING" means, in relation to any Letter of
Credit:
(a) at or before the Utilisation Date in respect of a proposed
Letter of Credit, the Original Euro Amount thereof; and
(b) thereafter, the sum at such time (without double counting) of
the Euro Amount of the maximum actual and contingent liabilities
of the Fronting Bank (and the Banks) under or in respect of such
Letter of Credit and the total Euro Amount of any payments made
by the Fronting Bank (and the Banks) thereunder which at such
time have not been paid or reimbursed by the Borrower to the
Fronting Bank and the Banks (or any of them) hereunder,
and "LETTER OF CREDIT OUTSTANDINGS" means at any time (without double
counting) the aggregate of all of the Euro Amounts of the maximum actual
and contingent liabilities of the Fronting Bank (and the Banks) under or
in respect of all the Letters of Credit outstanding under the Facility
at such time, together with the aggregate total Euro Amounts of all
payments made by the Fronting Bank (and the Banks) in relation thereto
which have not been paid or reimbursed by the Borrower;
"LIBOR" means, in relation to any amount to be advanced to, or owing by,
an Obligor under the Facility Documents in a currency other than euro on
which interest for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which displays
the British Bankers Association Interest Settlement Rate for
such currency (being currently "3740" or as the case may be
"3750") for such period as of 11.00 a.m. London time on the
Quotation Date for such period or, if such page or such service
shall cease to be available, such other page or such other
service for the purpose of displaying the British Bankers
Association Interest Settlement Rate for such currency as the
Agent, after consultation with the Banks and the Borrower, shall
select; or
(b) if no quotation for such currency and the relevant period is
displayed and the Agent has not selected an alternative service
on which a quotation is displayed, the arithmetic mean (rounded
upwards to four decimal places) of the rates (as notified to the
Agent) at which each of the Reference Banks was offering to
prime banks in the London interbank market deposits in such
currency for such period as of 11.00 a.m. London time on the
Quotation Date for such period;
"LICENCES" means any public law permits for operation of Systems from
RegTP or any other comparable national telecommunications regulatory
authority (as applicable) in any relevant townships;
"LOAN" means the aggregate principal amount of Advances for the time
being outstanding hereunder;
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"MAJORITY BANKS" means:
(a) whilst no Advances or Letters of Credit are outstanding
hereunder, a group of Banks (which for these purposes may
include the Overdraft Bank) whose Commitments (in respect of the
Overdraft Bank being for these purposes the amount of the
Overdraft Facility) amount (or, if each Bank's Commitment has
been reduced to zero, did immediately before such reduction to
zero, amount) in aggregate to more than fifty per cent. (50%) of
the aggregate of the Facility Amount and the amount of the
Overdraft Facility; and
(b) thereafter, a group of Banks (which for these purposes may
include the Overdraft Bank) to whom in aggregate more than fifty
per cent. (50%) of the aggregate amount of the Loan, the Letter
of Credit Outstandings and the Overdraft Amount is (or,
immediately prior to repayment of such amounts, was then) owed;
"MANDATORY COSTS RATE" means the rate determined in accordance with
Schedule 14 (Mandatory Costs);
"MARGIN" means the rate per annum calculated in accordance with Clause
10.3 (Margin);
"MATERIAL ADVERSE EFFECT" means a material adverse effect:
(a) on the business or financial condition of the Financial Group
taken as a whole; or
(b) on the ability of the Borrower, any Obligor which is a Material
Group Company or the Financial Group taken as a whole to comply
with any of its or their respective obligations under the
Facility Documents;
"MATERIAL COMMERCIAL CONTRACTS" means, the Material DT Contracts and any
other commercial agreements entered into by any member of the Group
which are material to the business or prospects of the Group taken as a
whole in terms of strategic commercial importance or revenue generation
and after completion of the Multikabel Acquisition the Sonera Contracts
and the KPN Contracts;
"MATERIAL DT CONTRACTS" means such co-operation and delivery of signal
contracts between any member of the Financial Group and Deutsche Telekom
which, either individually or taken together, are material to the
business (or the conduct thereof) of the Financial Group as a whole.
"MATERIAL ENVIRONMENTAL CLAIM" means any Environmental Claim which, if
successful, would be likely to have a Material Adverse Effect;
- 11 -
16
"MATERIAL GROUP COMPANY" means any subsidiary of the Holding Company or
the Borrower which is:
(a) a company, corporation or partnership which is a holding company
of a Material Group Company;
(b) a company, corporation or partnership whose Net Revenues or, in
the case of a company which itself has subsidiaries, whose
consolidated Net Revenues, exceed 5% of the consolidated Net
Revenues of the Financial Group as calculated by reference to
the latest quarterly financial statements (consolidated or
unconsolidated, as the case may be) of such subsidiary and the
Financial Group PROVIDED THAT:
(i) in the case of a subsidiary acquired after the end of
the Quarterly Period to which the most recently
delivered quarterly financial statements relate, the
reference to the latest financial statements of the
Financial Group for the purposes of the calculation
above shall, until the financial statements for the
Quarterly Period in which the acquisition is made are
prepared, be deemed to be a reference to such
first-mentioned accounts as if such subsidiary had been
shown in such accounts by reference to its own latest
financial statements, adjusted as deemed appropriate by
the auditors of the Borrower; and
(ii) if, in the case of any subsidiary which itself has
subsidiaries, no consolidated accounts are prepared, its
consolidated Net Revenues shall be determined on the
basis of pro forma consolidated accounts of the relevant
subsidiary and its subsidiaries prepared for this
purpose by the auditors of the Borrower or the auditors
for the time being of the relevant subsidiary; or
(iii) a company, corporation or partnership not falling within
sub-paragraph (i) above but which, as a result of any
intra-group transfer or re-organisation would, adopting
any of the tests referred to in sub-paragraph (i) above
and as if the accounts referred to in such sub-paragraph
had been drawn up immediately following such transfer or
re-organisation, be a Material Group Company PROVIDED
THAT such subsidiary shall only become a Material Group
Company upon the completion of such transfer or
re-organisation;
(c) a company, corporation or partnership which provides Broadband
Services to Subscribers constituting 5% or more of the
Subscribers of the Group; or
(d) a company, corporate or partnership whose EBITDA or, in the case
of a company which itself has subsidiaries whose consolidated
EBITDA, constitutes 5% or more of the EBITDA of the Financial
Group as calculated by reference to the latest quarterly
financial statements (consolidated or
- 12 -
17
unconsolidated, as the case may be) of such subsidiary and the
Financial Group PROVIDED THAT:
(i) in the case of a subsidiary acquired after the end of
the Quarterly Period to which the most recently
delivered quarterly financial statements relate, the
reference to the latest financial statements of the
Financial Group for the purposes of the calculation
above shall, until the financial statements for the
Quarterly Period in which the acquisition is made are
prepared, be deemed to be a reference to such
first-mentioned accounts as if such subsidiary had been
shown in such accounts by reference to its own latest
financial statements, adjusted as deemed appropriate by
the auditors of the Borrower; and
(ii) if, in the case of any subsidiary which itself has
subsidiaries, no consolidated accounts are prepared, its
consolidated EBITDA shall be determined on the basis of
pro forma consolidated accounts of the relevant
subsidiary and its subsidiaries prepared for this
purpose by the auditors of the Borrower or the auditors
for the time being of the relevant subsidiary; or
(iii) a company, corporation or partnership not falling within
sub-paragraph (i) above but which, as a result of any
intra-group transfer or re-organisation would, adopting
any of the tests referred to in sub-paragraph (i) above
and as if the accounts referred to in such sub-paragraph
had been drawn up immediately following such transfer or
re-organisation, be a Material Group Company PROVIDED
THAT such subsidiary shall only become a Material Group
Company upon the completion of such transfer or
re-organisation;
"MEESPIERSON INDEBTEDNESS" means, at any time, the indebtedness
outstanding at such time under the NLG 150,000,000 revolving bridge
facility extended by MeesPierson N.V. and Bank Nederlandse Gemeenten to
Multikabel and Communikabel N.V.;
"MULTIKABEL" means N.V. Kabeltelevisie Kop Noord-Holland (a public
company with limited liability incorporated under the laws of The
Netherlands and registered with the Commercial Register in The
Netherlands under number 37026706);
"MULTIKABEL ACQUISITION" means the acquisition, by way of share
purchase, of Multikabel by PrimaCom Netherlands Holding B.V. (a
wholly-owned subsidiary of the Borrower);
"MULTIKABEL ACQUISITION ADVANCES" means each Advance made or to be made
hereunder solely to (a) finance the Multikabel Acquisition (b) finance
the costs, fees, charges and expenses relating to the Multikabel
Acquisition and /or (c) refinance the Existing Multikabel Indebtedness
and shall include any Rollover Advance made to refinance a Multikabel
Acquisition Advance and "MULTIKABEL ACQUISITION ADVANCE" shall mean any
of them;
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18
"MULTIKABEL ACQUISITION AGREEMENT" means the share purchase agreement
dated 11 August 2000 relating to the Multikabel Acquisition;
"MULTIKABEL GROUP" means Multikabel and each of its subsidiaries at the
time of the Multikabel Acquisition;
"NECESSARY AUTHORISATIONS" means all approvals, authorisations,
franchises and licences from, all rights granted by and all filings,
registrations and agreements with any person including, without
limitation, any government or other regulatory authority (including,
without limitation, the Licences necessary or required for the business
of the Financial Group permitted by the terms of this Agreement;
"NET REVENUES" means in relation to the Financial Group (or any part
thereof) or any person which has been acquired by any member of the
Financial Group and for any period, all revenues (including all
installation revenues) from the use of or generated by the Systems
(exclusive of VAT) whatsoever payable to the Financial Group (or such
part thereof) or, as the case may be, such person, which arise during
such period;
"NET SENIOR DEBT" means at any time, Senior Debt at such time less an
amount equal to the amount of undrawn commitment under the Working
Capital Facility at such time;
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown);
"OBLIGORS" means the Borrower, the Guarantors and any other member of
the Group which provides security or guarantees at any time in respect
of any of the obligations of any Obligor under any of the Facility
Documents and "OBLIGOR" means any of them;
"OBLIGOR INTERCREDITOR AGREEMENT" means the intercreditor agreement
entered into or to be entered into between the Agent, the Banks, the
Fronting Bank, the Overdraft Bank, the Holding Company, the Obligors and
the Security Trustee;
"OPERATING COMPANY" means each member of the Group involved in the
construction, installation and/or operations of Systems;
"ORIGINAL BUSINESS PLAN" means the consolidated business plan of the
Financial Group referred to in paragraph 22 of Schedule 3 (Condition
Precedent Documents);
"ORIGINAL EURO AMOUNT" means in relation to a Letter of Credit, the face
amount of such Letter of Credit specified in the Notice of Drawdown
relating thereto, as the same may be reduced pursuant to Clause 6.4
(Reduction of Available Commitment), (or, if such Letter of Credit is
not denominated in euro, the equivalent of the amount (as the same may
be so reduced) in euro calculated as at the date of such Notice of
Drawdown);
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19
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) the audited consolidated financial statements for the year ended
31 December 1999 of the Holding Company; and
(b) the audited consolidated financial statements for the year ended
31 December 1999 of Multikabel;
"OVERDRAFT AMOUNT" means, at any time, the principal amount by way of
loan overdraft or guarantee outstanding under the Overdraft Facility at
that time;
"OVERDRAFT COMMITMENT" means the Overdraft Bank's commitment under the
Overdraft Facility as the same may be reduced from time to time in
accordance with the terms thereof;
"OVERDRAFT FACILITY" means the overdraft facility in an amount of EUR
15,000,000 provided or to be provided to the Borrower by the Overdraft
Bank pursuant to the terms of the Overdraft Letter and this Agreement;
"OVERDRAFT LETTER" means the overdraft letter setting out the terms of
the Overdraft Facility and incorporating the General Business Conditions
(Allgemeine Geschaftsbedingungen) of Chase Manhattan Bank AG (as amended
or varied from time to time in accordance with Clause 6.5 (Overdraft
Facility)) entered into on or about the date hereof between the
Overdraft Bank and the Borrower in respect of the Overdraft Facility;
"PARTICIPATING MEMBER STATE" means any member state of the European
Union which has adopted the euro as its lawful currency at the relevant
time;
"PERMITTED DISPOSAL EXPENSES" means:
(a) all title and registration expenses and expenses of professional
advisers, incidental to, incurred on and fairly attributable to,
any Asset Disposal;
(b) with the prior consent of an Instructing Group, estimated income
tax or trade tax referable to each Asset Disposal; and
(c) with the prior consent of an Instructing Group, any other costs
or expenses;
"PERMITTED ENCUMBRANCES" means:
(a) any encumbrances created pursuant to the terms hereof;
(b) encumbrances created pursuant to the Security Documents;
(c) any encumbrance which arises in respect of goods sold to any
Obligor in the ordinary course of its business by virtue of
retention of title provisions contained in the relevant seller's
standard conditions of sale;
(d) any lien (including but not limited to any contractor's lien)
arising by operation of law in the ordinary course of business;
- 15 -
20
(e) any rights of set-off or netting arrangements under any Hedge
Contract and any rights of set-off or netting arrangements which
may be exercisable in respect of any amounts standing to the
credit of any bank account held by any Obligor against any debit
balances of any bank account held by itself or any other Obligor
which either arise by operation of law or are contained in the
account holding bank's standard documentation and in the case of
any bank account held by any Obligor in the Netherlands other
encumbrances affecting such account which are granted pursuant
to the general terms and conditions of the relevant bank which
provides such account PROVIDED THAT such terms and conditions
are customary in the Netherlands;
(f) any encumbrance over or affecting any asset acquired by an Obligor after
the date hereof and subject to which such asset is acquired PROVIDED
THAT:
(i) such encumbrance was not created in contemplation of the
acquisition of such asset by an Obligor;
(ii) the amount thereby secured has not been increased at, in
contemplation of, or since the date of, the acquisition
of such asset by an Obligor; and
(iii) the aggregate amount of indebtedness secured by such
encumbrances shall not exceed EUR 1,000,000 for the
Group at any time;
(g) any encumbrance created after the date hereof over any asset of an
Obligor solely for the purpose of securing indebtedness for borrowed
money incurred to (i) acquire any such asset after the date hereof
and/or (ii) repair, alter, construct, develop or improve any such asset
PROVIDED THAT (a) the amount thereby secured does not exceed the
purchase price of such asset acquired or, as the case may be, the lower
of book value and market value of any such asset repaired, altered,
constructed, developed or improved after such repair, alteration,
construction, development or improvement at the time such encumbrance
was created and PROVIDED FURTHER THAT the aggregate amount of
indebtedness secured by any such encumbrances shall not exceed
EUR5,500,000 for the Group at any time and (b) any such encumbrance is
discharged within a period of twelve months from the date of its
creation (save where the amount of indebtedness secured by such
encumbrance when aggregated with the amount of indebtedness secured by
all other such encumbrances shall not exceed EUR1,000,000 for the Group
at any time);
(h) at any time prior to the date which falls 14 days after the Closing
Date, the Existing Multikabel Encumbrances;
(i) at any time prior to the date of the first Utilisation of the Facility,
the Existing PrimaCom Encumbrances;
(j) encumbrances which may arise as a result of any title transfer laws
applicable to the cables and other equipment forming part of a System by
which
- 16 -
21
ownership of elements permanently built into real property may pass to
the owner of that real property; and
(k) Finance Leases permitted pursuant to sub-clause 23.2.2 of Clause 23.2
(Negative Covenants) to the extent they could be regarded as
constituting encumbrances;
"POTENTIAL EVENT OF DEFAULT" means any event which would become (with
the passage of time, the giving of notice or any combination thereof) an
Event of Default;
"PRIMACOM MANAGEMENT SECOND DUTCH SHARE PLEDGE" means the share pledge
agreement and deed over the shares of PrimaCom Netherlands Holding B.V.
executed by the Borrower pursuant to sub-clause 23.7.3 of Clause 23.7
(Further Covenants of the Borrower);
"PRIMACOM NETHERLANDS ACCOUNT AND INTER-COMPANY LOAN PLEDGE" means the
account and inter-company loan pledge executed by PrimaCom Netherlands
Holding B.V.;
"PRO FORMA DEBT SERVICE" means, at any time, estimated Total Cash
Interest Expense plus Scheduled Principal Repayments and scheduled
repayments of other permitted indebtedness of any member of the
Financial Group for the four Quarterly Periods subsequent to such time
of determination PROVIDED THAT such Total Cash Interest Expense shall be
estimated by applying the weighted average interest rate on existing
indebtedness (excluding the Working Capital Facility or the Senior Notes
and any Holding Company Debt) at such time of determination to the
average outstanding indebtedness for borrowed money to be outstanding
over the four Quarterly Periods in accordance with the provisions of
this Agreement and adding the aggregate amount of interest scheduled to
become payable under the Working Capital Facility or on any Senior Notes
and any other Holding Company Debt during such period;
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advance or Letter of Credit is outstanding hereunder,
the proportion borne by its Commitment to the Facility Amount
(or, if the Facility Amount is then zero, by its Commitment to
the Facility Amount immediately prior to its reduction to zero);
or
(b) thereafter, the proportion borne by its share of the aggregate
of the Loan and the Letter of Credit Outstandings to the
aggregate of the Loan and the Letter of Credit Outstandings;
"QUARTER DAYS" means 31 March, 30 June, 30 September and 31 December in
any year;
"QUARTERLY PERIOD" means each successive period of approximately three
months commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
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22
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by leading banks in the London interbank market for
deposits in the relevant currency for delivery on the first day of that
period PROVIDED THAT, if for any such period quotations would ordinarily
be given on more than one date, the Quotation Date for that period shall
be the last of those dates;
"REDEMPTION UTILISATION" has the meaning given to it in clause 6.6
(Redemption Conditions);
"REDUCTION DATES" means the dates on which the Facility Amount is
reduced in accordance with Clause 12.2 (Reduction);
"REFERENCE BANKS" means the principal London offices of Bank of America,
N.A. and, The Chase Manhattan Bank or such other bank or banks as may
from time to time be agreed between the Borrower and an Instructing
Group;
"REGTP" means the Regulatory Authority for Telecommunications and Post
in Germany (Regulierungsbehorde fur Telekommunikation und Post);
"RELATED TRANSACTIONS" means any two or more Acquisitions which:
(a) are from the same vendor or from vendors which are affiliates of
each other;
(b) comprise assets relating to a single System; and
(c) are completed within a three month period;
"RELEVANT CONTRACTS" means the Licences and the Material Commercial
Contracts;
"RELEVANT JURISDICTION" means in respect of any person the jurisdiction
of its place of incorporation or, in the case of a partnership, its
place of establishment and, if different, the place in which it has its
principal place of business;
"REORGANISATION" means the System Asset Transfer and the transfer of all
subsidiaries of the Holding Company (other than the Borrower and
subsidiaries of the Borrower) to the Borrower or any of the Borrower's
wholly-owned subsidiaries;
"REPEATED REPRESENTATIONS" means the representations that are deemed to
be repeated pursuant to Clause 20.4 (Repetition of Representations);
"REPLACEMENT SENIOR NOTES" means the senior notes (if any) issued by the
Holding Company in accordance with the terms of the Working Capital
Facility and the Bank Intercreditor Agreement;
"RESTRICTED CASH" means monies held in escrow in an account held with
the Agent (or, as the case may be, with an agent or trustee on terms
acceptable to the Agent) in the name of the Holding Company pending
application towards the payment of interest on Senior Notes;
- 18 -
23
"ROLLOVER ADVANCE" means an Advance which is to be used to refinance a
maturing Advance and which is the same amount as such maturing Advance
and is to be drawn on the day such maturing Advance is to be repaid;
"SCHEDULED PRINCIPAL REPAYMENTS" means at any time the greater of zero
and the amount equal to the difference between (a) the aggregate of the
Loan and Letter of Credit Outstandings as at such time and (b) the
Facility Amount (after taking into account any scheduled reductions in
accordance with Clause 12.2 (Reduction) as at the fourth Quarter Day
which falls after the most recently ended Quarterly Period;
"SECURITY DOCUMENTS" means each of the following:
(a) the Security Trust Agreement;
(b) the Share Pledges;
(c) the assignment or, as the case may be, pledge of inter-company
loans;
(d) the Account Pledges;
(e) the PrimaCom Netherlands Account and Inter-Company Loan Pledge;
(f) the Additional Security; and
(g) the Target Security,
and any other agreement, deed or document from time to time executed in
favour of the Security Trustee for the Finance Parties or in favour of
each of such parties individually for the purpose of securing all or any
of the obligations of any Obligor under the Facility Documents or any of
them together with all amendments of, and supplements to any of the
foregoing and "SECURITY DOCUMENT" shall be construed accordingly;
"SECURITY TRUST AGREEMENT" means the security trust agreement entered or
to be entered into between, the Security Trustee, the Obligors, the
Holding Company, the Agent, the Fronting Bank, the Overdraft Bank and
the Banks;
"SENIOR DEBT" means, at any time, the aggregate at such time of all
indebtedness for borrowed money of the Group excluding (a) any
indebtedness for borrowed money owed by one member of the Group to
another member of the Group and (b) any Subordinated Debt permitted
hereunder, but including the net xxxx to market exposure of the Group as
calculated by the Agent under all derivative transactions of the nature
described in paragraph (h) of the definition of "indebtedness for
borrowed money" save for derivative transactions entered into to hedge
the exposure of the Group to fluctuations in exchange rates (and taken
into account in the calculation of Total Debt);
"SENIOR NOTES" means the Replacement Senior Notes and any other public
issue of senior notes, by the Holding Company, in accordance with this
Agreement;
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24
"SHARE PLEDGES" means each of the GmbH Share Pledge, the KG Share
Pledge, the Initial Dutch Share Pledge, or, after the execution of the
PrimaCom Management Second Dutch Share Pledge, the PrimaCom Management
Second Dutch Share Pledge and the share pledges to be granted by the
Holding Company over its partnership shares held in each member of the
Group;
"SONERA CONTRACTS" means each of the internet contracts between MultiWeb
B.V. and each of Multikabel and Communikabel N.V.;
"SUBORDINATED DEBT" means any loan provided by the Holding Company or
any other person to any Obligor which has been subordinated to the
Facility and the Overdraft Facility in accordance with the Obligor
Intercreditor Agreement or on terms which are otherwise acceptable to
the Agent;
"SUBSCRIBER" means a person who has entered into an agreement with any
member of the Group to be provided with Broadband Services (whether
alone or on the basis of an umbrella agreement);
"SUBSCRIBER AGREEMENT" means an agreement for the provision by any
member of the Group to a Subscriber of Broadband Services by means of a
System;
"SUBSCRIBER CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6 (Quarterly Subscriber Certificate);
"SUBSCRIBER RECEIVABLES" means all revenues generated pursuant to the
Subscriber Agreements (exclusive of VAT) which are payable to the
Holding Company;
"SUCCESSOR" in relation to a party means an assignee or successor in
title to such party or any person who, under the law of its jurisdiction
of incorporation or domicile, has assumed the rights and obligations of
such party hereunder or to which under such laws the same has been
transferred;
"SYSTEM" means each broadband fixed telecommunications network for the
delivery of Broadband Services, operated, managed, administered and,
where necessary, installed by a member or members of the Group PROVIDED
THAT such member (i) shall be a subsidiary of another member of the
Group as defined in paragraph (b) of the definition of subsidiary
contained in this Agreement and (ii) that the cash flows generated by
such System shall be controlled by such other member of the Group;
"SYSTEM ASSET TRANSFER" means the irrevocable transfer by the Holding
Company to the Borrower or a wholly-owned subsidiary of the Borrower (or
prior to the Reorganisation, to a wholly-owned subsidiary of the Holding
Company) of all its rights in any System Assets and any Net Revenues
generated thereby pursuant to the terms of this Agreement;
"SYSTEM ASSET SECURITY" has the meaning ascribed thereto in sub-clause
23.4.2 of Clause 24.3 (Positive Covenants of the Holding Company);
- 20 -
25
"SYSTEM ASSETS" means in relation to any System each of the Relevant
Contracts, head ends, cable networks and all other assets whatsoever
relating to that System;
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system;
"TARGET ACCOUNT AND INTER-COMPANY LOAN PLEDGES" means the account and
inter-company loan pledge agreements over the bank accounts held by each
member of the Multikabel Group listed in Schedule 9 (Members of the
Multikabel Group Granting Security) and over inter-company loans to be
entered into by each member of the Multikabel Group after the completion
of the Multikabel Acquisition;
"TARGET DAY" means any day on which TARGET is operating for the
settlement of payment in euro;
"TARGET SHARE PLEDGES" means each of the pledges pursuant to the share
pledge agreements and deeds entered into by PrimaCom Netherland Holding
BV and certain members of the Multikabel Group over the shares of each
member of the Multikabel Group listed in Schedule 9 (Members of the
Multikabel Group Granting Security);
"TARGET SECURITY" means the security constituted by the Target Share
Pledges, the Target Account and Inter-Company Loan Pledges, and any
other security interest in favour of the Finance Parties granted
pursuant thereto, in each case executed or to be executed by PrimaCom
Netherland Holding BV or any member of the Multikabel Group listed in
Schedule 9 (Members of the Multikabel Group Granting Security) pursuant
to Clause 45.3 (Multikabel Acquisition);
"TELECOMMUNICATIONS AND CABLE LAWS" means:
(a) in relation to members of the Group incorporated and/or doing
business in Germany the Telecommunication Act
(Telekommunikationsgesetz), the approval rules for reception
installations (Genehmigungsrechtliche Regelung fur
Rundfunksempfangsanlagen) and all other federal and state laws,
statutes, regulations and judgements relating to the building,
installation, management or operation of systems for
telecommunications or cable television applicable to any member
of the Group and/or business carried on by any member of the
Group;
(b) in relation to members of the Group incorporated and/or doing
business in The Netherlands the Telecommunications Act
(Telecommunicatiewet) and all other (including but not limited
to provincial and municipal) laws, statutes, regulations,
decisions and judgements relating to the building, installation,
management or operation of systems for the provision of
telecommunication networks and services, including but not
limited to the provision of Broadband Services and conditional
access networks and services applicable to any member of the
Group and/or business carried on by any member of the Group; and
- 21 -
26
(c) the corresponding laws, statutes, regulations and judgements
existing in any other jurisdiction as applicable to any other
member of the Group incorporated, or carrying on business in
such other jurisdiction;
"TERM" means, save as otherwise provided herein:
(a) in relation to any Advance, the period for which such Advance is
borrowed (as specified in the Notice of Drawdown relating
thereto); and
(b) in relation to any Letter of Credit, the period from its
Utilisation Date until its Expiry Date (as specified in the
Notice of Drawdown relating thereto);
"TOTAL ASSETS" means all the assets held by the Financial Group;
"TOTAL CASH INTEREST EXPENSE" means in relation to any period, the
aggregate of all interest (excluding capitalised interest) paid or
payable during such period in respect of indebtedness for borrowed money
of members of the Financial Group (other than indebtedness for borrowed
money owed by one member of the Financial Group to another member of the
Financial Group) less an amount equal to the amount of such interest
paid or payable during such period which was held as Restricted Cash at
the relevant time;
"TOTAL DEBT" means, at any time (but without double counting and
excluding, for the avoidance of doubt, any indebtedness for borrowed
money owed by one member of the Group to another member of the Group),
the aggregate at such time of:
(i) the aggregate amount of Senior Debt;
(ii) the aggregate amount of Subordinated Debt;
(iii) the principal amount (including the amount of any accretions
thereto relating to accrued interest) outstanding under the
Working Capital Facility or of any Senior Notes; and
(iv) the aggregate principal amount of all other indebtedness for
borrowed money of the Holding Company,
where "principal amount" means the euro equivalent of such principal
amount at the effective exchange rate resulting from any derivative
transaction entered into by any member of the Financial Group in order
to hedge exposure to relevant exchange rate fluctuations and, to the
extent that no such hedging has been entered into, the Agent's spot rate
of exchange for conversion into euros at or about 11.00 a.m. on the
relevant date in relation to such currency
LESS an amount equal to the amount of Restricted Cash at such time;
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27
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights and obligations hereunder
upon and subject to the terms and conditions set out in Clause
37 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the Agent
as is contemplated in Clause 37.3 (Transfers by Banks);
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in the schedule to such
Transfer Certificate;
"TRANSFEREE" means a bank or other financial institution to which a Bank
seeks to transfer all or part of such Bank's rights and obligations
hereunder;
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 25.1 (Default Interest Periods);
"U.S. GAAP" means generally accepted accounting principles in the United
States of America;
"UTILISATION" means a utilisation of the Facility hereunder by way of
Advance or the issuance of a Letter of Credit;
"UTILISATION DATE" means the date of a Utilisation, being the date on
which an Advance is to be or has been made or a Letter of Credit is to
be or has been issued; and
"WORKING CAPITAL FACILITY" means the EUR 375,000,000 working capital
facility entered into on or about the date hereof by the Holding Company
and a group of banks;
"WORKING CAPITAL LENDERS" means the financial institutions from time to
time party to the Working Capital Facility as lenders.
1.2 Any reference in this Agreement to:
an "AFFILIATE" of any person means any subsidiary or holding company of
that person or any subsidiary of any such holding company, or any other
person in which that person or any such person or subsidiary owns at
least 20 per cent. of the equity share capital (or the like);
the "AGENT", any "ARRANGER", any "BANK", any "BENEFICIARY", the
"FRONTING BANK", the "SECURITY TRUSTEE" or the "OVERDRAFT BANK" shall be
construed so as to include
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their respective Successors and any Successor of such Successor in
accordance with their respective interests;
"BARCLAYS CAPITAL" is a reference to Barclays Capital, the investment
banking division of Barclays Bank PLC;
a "CLAUSE" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
a Potential Event of Default or Event of Default is "CONTINUING" if it
has not been remedied or waived.
"DERIVATIVE TRANSACTION" includes any rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest
rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect thereto and any
combination in respect thereof);
an "ENCUMBRANCE" shall be construed as a reference to a mortgage,
charge, pledge, lien or other encumbrance securing any obligation of any
person or any other type of preferential arrangement (including, without
limitation, title transfer and retention arrangements) having a similar
effect;
the "EQUIVALENT" on any given date in one currency (the "FIRST
CURRENCY") of an amount denominated in another currency (the "SECOND
CURRENCY") is a reference to the amount of the first currency which
could be purchased with the amount of the second currency at the mean
rate of exchange quoted by the Frankfurt Currency Exchange on such date
for the purchase of the first currency with the second currency;
a "FINANCIAL STATEMENT" shall be construed as a reference to the balance
sheet, profit and loss account and cash flow statement of any person;
a "GUARANTEE" includes a guarantee, an indemnity and any other form of
legally binding assurance against (or other arrangement intended to
prevent or limit) loss in respect of any indebtedness for borrowed money
of any person;
a "HOLDING COMPANY" of a person shall be construed as a reference to any
person of which the first-mentioned person is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
"INDEBTEDNESS FOR BORROWED MONEY" shall be construed, without double
counting, as a reference to any indebtedness of any person for or in
respect of:
(a) moneys borrowed (other than Subordinated Debt);
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(b) liabilities under any standby letter of credit, guarantees,
acceptance credit, bills discounting facility or any receivables
purchase, factoring or discounting arrangements (other than
Letters of Credit);
(c) amounts raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or similar
instruments;
(d) the amount of any liability in respect of leases or hire
purchase contracts which would, in accordance with U.S. GAAP, be
treated as finance or capital leases;
(e) the amount of any Deferred Consideration;
(f) the amount of any liability in respect of any purchase price for
assets or services (other than in connection with an
Acquisition) the payment of which is deferred for a period in
excess of 120 days;
(g) amounts raised under any other transaction (including, without
limitation, any sale and repurchase agreement or forward sale or
purchase agreement) having the commercial effect of a borrowing
(excluding any derivative transactions of the nature described
in paragraph (h) below); and
(h) (for the purposes of Clause 24.7 (Cross-Default) and sub-clause
23.2.2. of Clause 23.2 (Negative Covenants) only) interest rate
or currency swaps, caps, floors, collars, forward sale or
purchase contracts, contracts for differences or any option
transactions, or any other treasury transactions or any other
transaction entered into in connection with the management of
risk related to indebtedness (and the amount of indebtedness for
borrowed money in relation to any such transaction shall be the
net amount not paid by the relevant member of the Financial
Group);
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would
otherwise end on a day which is not a Business Day, it shall end on the
next succeeding Business Day, unless that day falls in the calendar
month succeeding that in which it would otherwise have ended, in which
case it shall end on the immediately preceding Business Day PROVIDED
THAT, if a period starts on the last Business Day in a calendar month or
if there is no numerically corresponding day in the month in which that
period ends, that period shall end on the last Business Day in that
later month (and references to "months" shall be construed accordingly);
"OPERATING EXPENSES" shall be construed to include all operating
expenses (including, without limitation, management expenses) incurred
in relation to the operation of the Systems operated by the Group or,
prior to completion of the Reorganisation the Financial Group and the
servicing of its Subscribers;
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a "PART" shall, subject to any contrary indication, be construed as a
reference to a part hereof;
a Bank's "PARTICIPATION" in relation to a Letter of Credit shall be
construed as a reference to the rights and obligations of such Bank in
relation to such Letter of Credit as are expressly set out in this
Agreement;
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
the "RELEVANT INTERBANK RATE" is a reference to:
(a) in relation to the euro, EURIBOR; or
(b) in relation to any other currency, LIBOR;
a "SCHEDULE" shall, subject to any contrary indication, be construed as
a reference to a schedule hereto;
a "SUBSIDIARY" of a company, corporation or partnership shall be
construed as a reference to any company, corporation or partnership:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation or partnership;
(b) more than half the issued share capital or partnership share of
which is beneficially owned, directly or indirectly, by the
first-mentioned company, corporation or partnership; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation or partnership,
and, for these purposes, a company, corporation or partnership shall be
treated as being controlled by another if that other company,
corporation or partnership is able to direct its affairs and/or to
control the composition of its board of directors or equivalent body
and/or to appoint or dismiss the general partner thereof;
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time; and
"WHOLLY-OWNED" means a company, corporation or partnership whose issued
share capital or partnership shares are (i) 100 per cent. owned by its
sole shareholder or (ii) in the case of a partnership, (x) 99 per cent.
of its partnership shares are held by a limited partner and one
partnership share is held by PrimaCom AG as a further limited partner
while no partnership shares are held by the general partner or (y) 98
per cent
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of its partnership shares are held by PrimaCom AG as a limited
partner and two per cent of the partnership shares are held by its
general partner;
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a person shall be
construed so as to include any equivalent or analogous proceedings under
the law of the jurisdiction in which such person is incorporated or
registered or any jurisdiction in which such person carries on business
including the seeking of liquidation, winding-up, reorganisation,
dissolution, administration, arrangement, adjustment, protection or
relief of debtors.
1.3 "EUR" and "EURO" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in EMU
Legislation and "$" and "DOLLARS" denote lawful currency of the United
States of America.
1.4 Save where the contrary is indicated, any reference in this Agreement
to:
1.4.1 any licence, consent, agreement or document shall be construed
as a reference to such licence, consent, agreement or document
as the same may have been, or may from time to time be,
amended, varied, reissued, replaced, novated or supplemented;
1.4.2 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have
been, or may from time to time be, amended, varied, novated or
supplemented;
1.4.3 a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended
or re-enacted; and
1.4.4 a time of day shall unless otherwise specified be construed as
a reference to Frankfurt am Main time.
1.5 Clause and Schedule headings are for ease of reference only.
1.6 Financial terms not specifically defined herein shall be construed in
accordance with U.S. GAAP.
1.7 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
2. THE FACILITIES
2.1 GRANT OF FACILITY
The Banks hereby grant to the Borrower, upon the terms and subject to
the conditions hereof, a revolving loan and letter of credit facility in
an aggregate amount of EUR 985,000,000 (available for drawing by way of
(a) Advances denominated in euro and (b) Letters of Credit up to a
maximum Euro Amount of EUR 10,000,000 denominated in dollars or euro).
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2.2 GRANT OF THE OVERDRAFT FACILITY
The Overdraft Bank hereby grants to the Borrower upon the terms and
subject to the conditions of the Overdraft Letter and this Agreement, a
denominated euro overdraft facility in an aggregate amount of EUR
15,000,000.
3. PURPOSE
3.1 PURPOSE OF FACILITY
The Facility shall be used by the Borrower, where appropriate through
on-lending to PrimaCom Netherlands Holding B.V. or, as the case may be,
the Operating Companies, for the following purposes:
3.1.1 to refinance all Existing PrimaCom Indebtedness;
3.1.2 to finance the Multikabel Acquisition (including related
costs, fees, charges and expenses) and to refinance the
Existing Multikabel Indebtedness;
3.1.3 to finance Acquisitions (including related costs, fees,
charges and expenses) and to refinance any indebtedness for
borrowed money thereby acquired and/or to be applied to
discharge indebtedness secured by any encumbrance attaching to
any asset thereby acquired;
3.1.4 to finance the capital expenditure of the Group and any costs,
fees, charges and expenses incurred by the Group in connection
with the implementation of the Facility and the Overdraft
Facility or otherwise under the Facility Documents (for the
avoidance of doubt, excluding interest);
3.1.5 to finance distributions to the Holding Company in order (i)
subject to the conditions set out in Clause 6.6 (Redemption
Conditions) to purchase Senior Notes and/or (ii) to pay
interest under the Working Capital Facility or upon any Senior
Notes; and
3.1.6 for working capital and general corporate purposes.
3.2 PURPOSE OF OVERDRAFT FACILITY The Overdraft Facility is to be used for
general corporate and working capital purposes of the Group (including,
for the avoidance of doubt, the making of Acquisitions).
3.3 APPLICATION
The Borrower shall apply all amounts raised by it hereunder exclusively
in or towards satisfaction of the above purposes and without prejudice
to the obligations of the Borrower under Clause 3.1 (Purpose of the
Facility) and Clause 3.2 (Purpose of the Overdraft Facility) above none
of the Finance Parties shall be obliged to concern themselves with the
application of amounts raised by the Borrower hereunder.
3.4 APPLICATION OF FIRST ADVANCE
The first Utilisation Request delivered hereunder shall be in respect of
an Advance which shall be applied to refinance all Existing PrimaCom
Indebtedness and to pay all
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costs, fees and expenses incurred in connection with the implementation
of the Facility and the Overdraft Facility.
3.5 MULTIKABEL ACQUISITION
3.5.1 If the Borrower wishes to utilise the Facility to finance the
Multikabel Acquisition and the related costs, fees, charges
and expenses and/or to refinance any of the Existing
Multikabel Indebtedness, the Borrower shall specify in the
Utilisation Request that the requested Advance is a Multikabel
Acquisition Advance.
3.5.2 For the avoidance of doubt, no part of a Multikabel
Acquisition Advance may be drawn for any purpose other than
for the financing of the Multikabel Acquisition and the
related costs, fees, charges and expenses and/or for the
refinancing of any of the Existing Multikabel Indebtedness and
no part of an Advance other than a Multikabel Acquisition
Advance may be drawn for such purposes.
4. CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, the Borrower may not deliver the
first Notice of Drawdown to the Agent unless the Agent has confirmed to
the Banks that it has received all of the documents listed in Schedule 3
(Condition Precedent Documents) and that such documents are in form and
substance satisfactory the Agent.
5. NATURE OF BANKS' AND BORROWER'S OBLIGATIONS
5.1 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank, the Fronting Bank and the Overdraft Bank
hereunder are several and not joint and the failure by a Bank, the
Fronting Bank or the Overdraft Bank to perform its obligations hereunder
shall not affect the obligations of any Obligor or the Holding Company
towards any other party hereto nor shall any other party be liable for
the failure by such Bank, the Fronting Bank or the Overdraft Bank to
perform its obligations hereunder.
5.2 BANKS' RIGHTS SEVERAL
The amounts outstanding at any time hereunder from each of the Obligors
to any of the other parties hereto shall be a separate and independent
debt and each such party shall be entitled to protect and enforce its
individual rights arising out of this Agreement independently of any
other party and it shall not be necessary for any party hereto to be
joined as an additional party in any proceedings for this purpose.
5.3 DEFAULT IN OBLIGATIONS
If any Bank, the Fronting Bank or the Overdraft Bank defaults in the
performance of any of its obligations hereunder, the Agent shall
endeavour to consult with the Borrower with a view to assisting the
Borrower in deciding the appropriate action to be taken by the Borrower
in order to replace the Bank concerned, the Fronting Bank or the
Overdraft Bank with an alternative reputable bank or financial
institution.
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5.4 OBLIGATIONS OWED TO SECURITY TRUSTEE
For the purposes of ensuring and preserving the validity and continuity
of security rights to be granted under the laws of the Netherlands in
relation to the obligations of the Obligors:
5.4.1 each of the Obligors irrevocably and unconditionally
undertakes to pay to the Security Trustee in its capacity as
security trustee for the Beneficiaries all amounts whatsoever,
without any limitation, owing by such Obligor to the Finance
Parties or any of them, whether actually or contingently under
and in accordance with the terms of this Agreement and the
other Facility Documents upon such amounts becoming due and
payable (such obligation and undertaking being hereinafter
referred to as the "PARALLEL DEBT Obligations");
5.4.2 each of the Obligors and the Security Trustee acknowledge that
the Parallel Debt Obligations are obligations and liabilities
of the Borrower to the Security Trustee in its capacity as
security trustee under the Facility Documents separate and
independent from, and without prejudice to, the identical
obligations which the Borrower has to the other Finance
Parties or any of them under this Agreement or any other
Facility Document, provided that the total amount due and
payable under or in respect of the Parallel Debt Obligations
shall be decreased to the extent that the Borrower shall have
paid any amounts to such other Finance Parties or any of them
under this Agreement or any other Facility Document and
vice-versa, it being agreed that any amount received by the
Security Trustee in its capacity as security trustee will be
applied towards satisfaction of the obligations of the
Borrower towards the Finance Parties in accordance with the
terms of this Agreement and the Security Trust Agreement;
5.4.3 every payment by an Obligor of monies due by such Obligor and
made to the Security Trustee in its capacity as security
trustee for the Beneficiaries shall (conditionally upon such
payment not subsequently being avoided or reduced by virtue of
any provisions or enactments relating to bankruptcy,
insolvency, liquidation or similar laws of general
application) be in satisfaction pro tanto of the covenant by
such Obligor contained in sub-clause 5.4.1, PROVIDED THAT if
any such payment as is mentioned above is subsequently avoided
or reduced by virtue of any provisions or enactments relating
to bankruptcy, liquidation or similar laws of general
application the Security Trustee shall be entitled to receive
the amount of such payment from such Obligor and such Obligor
shall remain liable to perform the relevant obligation and the
relevant liability shall be deemed not to have been
discharged; and
5.4.4 nothing in this Clause 5.4 shall in any way negate or affect
the obligations which any Obligor may have under or in respect
of this Agreement or any other Facility Document to the
Finance Parties or any of them.
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6. UTILISATION OF THE FACILITY
6.1 UTILISATION OF ADVANCES AND LETTERS OF CREDIT
Save as otherwise provided herein, an Advance will be made by the Banks
to the Borrower or, as the case may be, a Letter of Credit will be
issued by the Fronting Bank at the request of the Borrower if:
6.1.1 by not later than 10.00 a.m. London time on a day which is not
more than ten nor less than three Business Days before the
proposed Utilisation Date (or by such later time and date
acceptable to the Agent), the Agent has received from the
Borrower a Notice of Drawdown therefor, receipt of which shall
oblige the Borrower to proceed with the Utilisation therein
requested on the date therein stated upon the terms and
subject to the conditions contained herein;
6.1.2 the proposed Utilisation Date is a Business Day falling one
month or more before the Final Maturity Date;
6.1.3 the proposed Utilisation Date is not less than five Business
Days after the Utilisation Date of any previous Utilisation
(PROVIDED THAT, subject to sub-clause 6.1.5 below the Borrower
shall be permitted to make more than one Utilisation on the
same day);
6.1.4 subject to the provisions of this Agreement regarding
availability:
(a) in respect of an Advance, the proposed amount of such
Advance (when aggregated with the amount of all other
Advances, if any, to be drawn by the Borrower on the
proposed Utilisation Date) is (x) a minimum amount of
EUR 2,500,000 and if greater, an integral multiple of
EUR 500,000 which is less than the amount of the
Available Facility as at the relevant Utilisation
Date and (assuming that there is no reduction or
cancellation of the Facility during the Term of such
Advance, save for a reduction scheduled to be made in
accordance with Clause 12.2 (Reduction)) as at the
last day of the proposed Term of such Advance or (y)
equal to the lesser of (1) the amount of the
Available Facility as at the relevant Utilisation
Date and (2) (assuming that there is no reduction or
cancellation of the Facility during the Term of such
Advance, save for a reduction scheduled to be made in
accordance with Clause 12.2 (Reduction)) the amount
of the Available Facility as at the last day of the
proposed Term of such Advance;
(b) in respect of a Letter of Credit, the proposed Euro
Amount of such Letter of Credit (when aggregated with
the Euro Amount of all other Letters of Credit, if
any, to be issued on the proposed Utilisation Date)
(x) is a minimum amount of EUR2,500,000 and, if
greater, an integral multiple of EUR 500,000 and, (y)
when aggregated with the Letter of Credit
Outstandings at such time does not exceed EUR
10,000,000 and (z) is less than or equal to the
lesser of (1) the amount of the Available Facility as
at the relevant Utilisation Date and (2) (assuming
that there is
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no reduction or cancellation of the Facility during
the proposed Term of such Letter of Credit, save for
a reduction scheduled to be made in accordance with
Clause 12.2 (Reduction)) the amount of the Available
Facility as at its Expiry Date; and
(c) in respect of a Multikabel Acquisition Advance, in
addition to the conditions specified in paragraph (a)
above, the proposed amount of such Multikabel
Acquisition Advance when aggregated with the amount
of all other Multikabel Acquisition Advances
outstanding as at the proposed Utilisation Date does
not exceed EUR 372,550,000;
6.1.5 there would not, immediately after such Utilisation, be more
than ten Advances and Letters of Credit outstanding hereunder;
6.1.6
(a) in respect of an Advance, the proposed Term of such
Advance is a period of one, two, three or six months
(or such other period as is agreed by the Banks)
ending no later than the Final Maturity Date; and
(b) in respect of a Letter of Credit, its proposed Term
is a period of not more than thirty-six months (or
such other duration as the Banks may have previously
agreed in writing) ending no later than the Final
Maturity Date;
6.1.7 on the proposed Utilisation Date either:
(a) no Event of Default or Potential Event of Default has
occurred and is continuing; and
(b) the Repeated Representations are true on and as of
the proposed Utilisation Date of such Advance or, as
the case may be, such Letter of Credit,
or each of the Banks agrees (notwithstanding any matter mentioned in
paragraphs (a) or (b) above) to participate in the making of such
Advance or, as the case may be, in the issue of such Letter of Credit;
and
6.1.8 the Notice of Drawdown relating to the proposed Utilisation
certifies and demonstrates in form and substance satisfactory
to the Agent, pro forma compliance with the financial
covenants contained in Clause 22.1 (Total Leverage Ratio) and
Clause 22.2 (Net Senior Leverage Ratio) of this Agreement as
at the proposed Utilisation Date, any calculations made in
relation thereto to be based on the most recently prepared
financial statements delivered pursuant to Clause 21.1
(Financial Statements) but adjusted to take into account the
amount of the proposed Utilisation. For the purposes of this
Clause 6.1.8, and notwithstanding the provisions of Clause 22
(Financial Condition), each of the financial covenants
contained in Clause 22.1 (Total
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Leverage Ratio) and Clause 22.2 (Net Senior Leverage Ratio)
shall be deemed to take effect as of the date hereof.
6.2 UTILISATION FOR ACQUISITIONS
If the Borrower wishes to utilise any part of the Facility for any of
the purposes described in sub-clause 3.1.3 of Clause 3.1 (Purpose of
Facility) then:
6.2.1 it shall only be entitled to deliver a Notice of Drawdown for
such purposes if, in addition to satisfying the requirements of
Clause 6.1 (Utilisation of Advances and Letters of Credit):
(a) the proposed Acquisition is of an Approved Target; or
(b) where such proposed Acquisition is not of an Approved
Target, the Consideration for such Acquisition (whether
in a single transaction or Related Transactions) does
not exceed EUR 50,000,000 when aggregated with the
Consideration paid for all other such Acquisitions made
in accordance with this sub-clause 6.2.1(b) or, if such
aggregate amount exceeds EUR 50,000,000, then such
Acquisition has been approved by the Majority Banks; and
6.2.2 it shall only be entitled to draw an Advance or Advances for
such purposes if ten Business Days prior to a proposed
Acquisition where the Consideration for such Acquisition exceeds
EUR 20,000,000, the Borrower has delivered to the Agent (for and
on behalf of the Banks):
(a) a certificate signed by the finance director of the
Holding Company certifying and demonstrating in form and
substance satisfactory to the Agent, pro forma
compliance with the financial covenants contained in
Clause 22 (Financial Condition) of this Agreement on the
date of the Acquisition and thereafter until the Final
Maturity Date (assuming for the purposes of this clause
6.2.2(a) that each of the financial covenants contained
in Clause 22 (Financial Condition) takes effect as of
the date hereof), through the provision of the pro forma
accounts and projections delivered pursuant to paragraph
(b);
(b) an updated pro forma business plan containing pro forma
accounts and projections for the Financial Group as
consolidated with the entity or business being acquired,
prepared on an annual basis for each financial year
until the Final Maturity Date and on a monthly basis in
relation to the first twelve months following the
Acquisition. Such projections shall be certified by the
finance director of the Holding Company as having been
based on reasonable assumptions prepared on a consistent
basis to the projections delivered under sub-clause
21.1.3 of Clause 21.1 (Financial Statements) hereof and
shall be calculated from the actual historical
performance of the Financial Group and the entity or
business
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being acquired, respectively, as indicated in their
latest available financial statements; and
(c) evidence satisfactory to the Agent that there is
sufficient liquidity available under the Working Capital
Facility (or from other identified sources) to fully
fund such business plan.
6.3 EACH BANK'S PARTICIPATION IN ADVANCES AND LETTERS OF CREDIT
Save as otherwise provided herein, each Bank will participate through
its Facility Office in each Advance made or Letter of Credit issued
pursuant to Clause 6.1 (Utilisation of Advances and Letters of Credit)
in the proportion borne by its Available Commitment to the Available
Facility immediately prior to the making of that Advance or the issue of
such Letter of Credit.
6.4 REDUCTION OF AVAILABLE COMMITMENT
If a Bank's Commitment is reduced in accordance with the terms hereof
after the Agent has received the Notice of Drawdown (but before the
Utilisation Date) for an Advance or a Letter of Credit, and such
reduction was not taken into account in the Available Facility then the
amount of that Advance or Letter of Credit shall be reduced accordingly.
6.5 OVERDRAFT FACILITY
6.5.1 Subject to sub-clause 6.5.2 the Overdraft Bank and the Borrower
agree that no amendment shall be made to the terms of the
Overdraft Letter unless such amendments have been agreed by an
Instructing Group.
6.5.2 The interest rate or guarantee commission which shall be applied
to the loan outstandings and liabilities in respect of
guarantees forming part of the Overdraft Amount pursuant to the
Overdraft Letter shall be the Overdraft Bank's normal overdraft
rate or normal guarantee commission respectively applicable to a
facility and obligor comparable with the Overdraft Facility and
the Borrower from time to time.
6.5.3 The Overdraft Bank shall not, without the prior written consent
of an Instructing Group, terminate or make demand under the
Overdraft Facility or call for cash collateral in respect of
guarantees issued by it thereunder at any time before the Final
Maturity Date and in any event no such termination or demand may
be made prior to an Event of Default.
6.5.4 Subject to sub-clause 6.5.3, if the Overdraft Facility is, with
the prior written consent of an Instructing Group, terminated or
demanded prior to the Final Maturity Date, the Overdraft Amount
at such time (including for the avoidance of doubt, an amount
equal to the unmatured contingent liabilities of the Overdraft
Bank in respect of guarantees issued by it thereunder) shall be
converted to form part of the Facility in accordance with the
provisions set out in sub-clause 6.5.5.
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6.5.5 Upon termination or demand of the Overdraft Facility:
(a) the Overdraft Amount at such time (including, for the
avoidance of doubt, an amount equal to the unmatured
contingent liabilities of the Overdraft Bank in respect
of guarantees issued by it thereunder) shall become part
of the Loan and shall be added to each Advance then
outstanding hereunder pro rata;
(b) each Bank's participation in each Advance shall be
adjusted to ensure that each Bank participates in each
Advance in the proportion which its Commitment bears to
the aggregate amount of the Commitments of all the Banks
and for these purposes the amount of the Overdraft
Commitment of the Overdraft Bank shall be converted into
Commitment under the Facility, and the Overdraft Bank
shall have a Commitment as a Bank hereunder and be
considered a Bank for the purposes of the Facility
Documents (its Overdraft Commitment being simultaneously
reduced to zero); and
(c) such accession agreement as is necessary to give effect
to this sub-clause 6.5.5 shall be entered into by the
parties hereto and the Agent shall, in consultation with
the Borrower, be entitled to agree such other amendments
to the Facility Documents as may be necessary to give
effect to the provisions set out in this sub-clause
6.5.5 or to ensure that the conversion takes place in an
administratively convenient manner.
6.5.6 The Overdraft Bank shall, from time to time, immediately upon
the request of the Agent, notify the Agent of the Overdraft
Amount.
6.5.7 Any part of the Facility arising by way of the conversion from
any amount equal to the unmatured contingent liabilities of the
Overdraft Bank in respect of guarantees issued by it under the
Overdraft Facility in accordance with sub-clauses 6.5.4 or 6.5.5
shall be made available by way of the cash collateralisation in
favour of the Overdraft Bank of its unmatured contingent
liabilities under such guarantee.
6.6 REDEMPTION CONDITIONS The Borrower and the Holding Company agree
that if the Borrower wishes to utilise any part of the Facility
(the amount of any such utilisation being a "REDEMPTION
UTILISATION") to finance distributions to the Holding Company in
order to purchase Senior Notes then it shall only be entitled to
do so if:
6.6.1 the Redemption Utilisation is to finance a purchase of Senior
Notes which takes place after 31 December 2001;
6.6.2 the amount of such Redemption Utilisation, when aggregated with
the total amount of all other Redemption Utilisations in any
financial year does not exceed EUR35,000,000;
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6.6.3 on the Utilisation Date of the Redemption Utilisation the
Borrower pays an amount equal to 0.5% of the amount of the
Redemption Utilisation to the Agent for distribution to the
Banks pro rata;
6.6.4 the Borrower prepays an amount of the Facility in accordance
with Clause 14.4 (Purchase of Senior Notes); and
6.6.5 not less than three Business Days prior to the Utilisation Date
of the Redemption Utilisation the Borrower has delivered to the
Agent a certificate signed by the finance director of the
Borrower certifying and demonstrating in form and substance
satisfactory to the Agent that the Borrower will be able to
comply with its obligations under Clause 12 (Repayment and
Reduction) notwithstanding the Redemption Utilisation and the
purchase of the Senior Notes.
7. ISSUE OF LETTERS OF CREDIT
7.1 INFORMATION
Each Notice of Drawdown in respect of a Letter of Credit shall, in
addition to the information required pursuant to Clause 6.1 (Utilisation
of Advances and Letters of Credit), specify the name and address of the
recipient to which the relevant Letter of Credit should be delivered and
shall have the proposed form of the Letter of Credit attached to it.
7.2 AUTHORITY TO ISSUE
Subject to the provisions hereof, the Fronting Bank shall issue a Letter
of Credit denominated in euros or dollars (as applicable) on the
relevant Utilisation Date if:
7.2.1 the identity of the recipient has been agreed by the Agent and
the Fronting Bank (which may withhold its agreement if as a
matter of bank policy the Fronting Bank does not enter into
contractual relations with such recipient); and
7.2.2 the form of the Letter of Credit has (if different from that set
out in Part A or Part B of Schedule 11 (Forms of Letter of
Credit and Guarantee) (as the case may be)) been agreed between
the Borrower, an Instructing Group and the Fronting Bank by no
later than two Business Days before delivery of the Notice of
Drawdown.
7.3 RESTRICTIONS ON PARTICIPATION IN LETTERS OF CREDIT
If the issue of a proposed Letter of Credit to the proposed recipient is
prohibited under any law, statute, regulation, order or decree to which
a Bank or the Fronting Bank is subject or pursuant to any request from
or requirement of any central bank or other fiscal, monetary or other
authority to which a Bank or the Fronting Bank is subject, that Bank or,
as the case may be, the Fronting Bank shall notify the Agent thereof by
no later than the Utilisation Date and:
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7.3.1 in respect of a Bank:
(a) that Bank shall not be obliged to participate in such Letter of
Credit;
(b) the maximum actual and contingent liabilities of the Fronting
Bank under such Letter of Credit shall be reduced by an amount
equal to what would have been the amount of such Bank's L/C
Proportion of the Letter of Credit Outstanding of such Letter of
Credit if such prohibition in respect of such Bank had not
occurred; and
(c) such Bank shall (subject to the other provisions of this
Agreement) be required to make an Advance to the Borrower in
euro in an amount equal to the Original Euro Amount of what
would have been the amount of such Bank's L/C Proportion of the
Letter of Credit Outstanding of such Letter of Credit if such
prohibition had not occurred and with an equivalent Term to the
Term of such Letter of Credit (and any such Advance shall not be
taken into account for the purpose of the limit set out in
sub-clause 6.1.5 of Clause 6.1 (Utilisation of Advances and
Letters of Credit); and
7.3.2 in respect of the Fronting Bank, the Fronting Bank shall not be
obliged to and shall not issue such proposed Letter of Credit.
7.4 COMPLETION OF LETTERS OF CREDIT
The Fronting Bank is hereby irrevocably authorised to issue any Letter
of Credit to be issued by it pursuant to Clause 7.2 (Authority to Issue)
by:
7.4.1 completing the issue date, the Expiry Date and all other
relevant details of such Letter of Credit; and
7.4.2 executing and delivering such Letter of Credit to the Borrower
or, if the Borrower has so requested, to the relevant recipient
(at the address specified by the Borrower) on the Utilisation
Date.
8. LIABILITIES UNDER LETTERS OF CREDIT
8.1 DEMANDS UNDER LETTERS OF CREDIT
If, at any time, a demand for payment (the amount so demanded being
herein referred to as the "AMOUNT DEMANDED") is made under a Letter of
Credit the Fronting Bank shall promptly notify the Agent thereof and the
Agent shall (upon such notification) notify the Borrower of such demand
(with a copy to each Bank) and make demand of the Borrower for an amount
equal to the Amount Demanded.
8.2 PAYMENT BY THE BORROWER
The Borrower shall, immediately upon receipt by it of a demand made on
it by the Agent under this Clause 8 and in any event no later than 11.00
a.m. on the first Business Day following receipt of the demand, pay to
the Agent the Amount Demanded, such payment to be for the account of the
Fronting Bank or, following payment by the Banks under Clause 8.3
(Payment by the Banks), the Banks.
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8.3 PAYMENT BY THE BANKS
If the Agent has not received the Amount Demanded in full from the
Borrower in accordance with Clause 8.2 (Payment by the Borrower):
8.3.1 the Agent shall make a written demand of each Bank for payment
to the Agent, on the date which is two Business Days after the
date of such demand, of an amount equal to each such Bank's L/C
Proportion of the Amount Demanded; and
8.3.2 each Bank shall, no later than 11.00 a.m. on the date two
Business Days after the date of demand under sub-clause 8.3.1,
pay to the Agent the amount so demanded of such Bank.
8.4 PAYMENT BY THE AGENT
The Agent shall pay amounts received by it pursuant to Clause 8.2
(Payment by the Borrower) or Clause 8.3 (Payment by the Banks) to the
Fronting Bank promptly upon receipt thereof and shall promptly inform
the Banks of any such payments made pursuant to Clause 8.2 (Payment by
the Borrower) or Clause 8.3 (Payment by the Banks).
8.5 BANKS' INDEMNITY TO FRONTING BANK
Each Bank hereby (on a several basis) irrevocably and unconditionally
agrees to indemnify and keep indemnified the Fronting Bank on demand
against each and every sum paid or payable by the Fronting Bank to any
beneficiary of a Letter of Credit issued by the Fronting Bank and also
undertakes to indemnify and hold harmless the Fronting Bank on demand
from and against all actions, proceedings, liabilities, costs (including
without limitation, any costs incurred in funding any amount which falls
due from the Fronting Bank under any Letter of Credit (and from the
Banks hereunder)) claims, losses, damages and reasonable expenses which
the Fronting Bank may at any time incur or sustain in connection with or
arising out of the issue of any Letter of Credit by it other than those
incurred or sustained as a result of the gross negligence or wilful
misconduct of the Fronting Bank PROVIDED THAT the amount of each Bank's
liability in respect of any amount demanded under this Clause 8.5 in
respect of a Letter of Credit issued by a Fronting Bank shall be limited
to each such Bank's L/C Proportion.
8.6 BORROWER'S INDEMNITY TO BANKS
The Borrower hereby irrevocably and unconditionally agrees to indemnify
and keep indemnified the Agent, each Bank and the Fronting Bank against
each and every sum paid or payable by the Agent, any such Bank or the
Fronting Bank under or in connection with any Letter of Credit requested
by the Borrower and also undertakes to indemnify and hold harmless the
Agent, each Bank and the Fronting Bank on demand from and against all
actions, proceedings, liabilities, costs (including, without limitation,
any costs incurred in funding any amount which falls due from the Agent,
any Bank or the Fronting Bank under any Letter of Credit or in
connection with any such Letter of Credit), claims, losses, damages and
expenses which the Agent, any Bank or the Fronting Bank may at any time
incur or sustain in connection with or
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arising out of any such Letter of Credit and any costs incurred by the
Agent, a Bank or the Fronting Bank in funding an Amount Demanded or a
Banks' L/C Proportion thereof, as the case may be, prior to
reimbursement.
8.7 RIGHT TO MAKE PAYMENTS UNDER LETTERS OF CREDIT
Each Bank and the Fronting Bank shall be entitled to make any payment
under or in respect of any Letter of Credit for which a demand has been
made without any reference to or further authority from the Borrower or
any other investigation or enquiry, need not concern itself with the
propriety of any demand made or purported to be made under and in the
manner required by the terms of any such Letter of Credit and shall be
entitled to assume that any person expressed in any Letter of Credit or
in any notice served pursuant to any such Letter of Credit to be
entitled to make demands is so entitled and that any individual
purporting to sign any such demand or notice on behalf of such person is
duly authorised to do so; accordingly, it shall not be a defence to any
demand made of the Borrower nor shall the obligations of the Borrower
hereunder be impaired by the fact (if it be the case), that any Bank or
the Fronting Bank was or might have been justified in refusing payment,
in whole or in part, of the amounts demanded under the Letter of Credit
or this Clause 8 (unless, through its gross negligence or wilful
default, the Fronting Bank does not pay to or at the direction of the
person who on the face of the Letter of Credit is the beneficiary
thereof).
8.8 PRESERVATION OF FRONTING BANK RIGHTS
Neither the several obligations of each Bank to the Fronting Bank
hereunder nor the rights, powers and remedies conferred on the Fronting
Bank by this Agreement or by law shall be discharged, lessened or
impaired by any act, omission or circumstance whatsoever which, but for
this provision, might operate to release or exonerate such Bank from all
or part of such obligations or in any other way discharge, lessen or
impair the same.
8.9 SETTLEMENT CONDITIONAL
The several obligations of each Bank hereunder shall be in addition to,
and shall not be in any way affected or prejudiced by, any guarantee,
collateral or other security now or hereafter held by or on behalf of
the Fronting Bank. The several obligations of each Bank hereunder to the
Fronting Bank shall remain in full force notwithstanding the discharge
of all sums payable hereunder or the release of any security held
therefor if such discharge or release shall have been given or made in
reliance on any assurance, payment or security which is avoided under
any statute relating to winding-up, administration, insolvency or any
kind of moratorium of debts or is otherwise avoided in any manner
whatsoever and any discharge or release shall be conditional upon no
assurance, security or payment being so avoided. If any such assurance,
security or payment shall be so avoided or reduced, the Fronting Bank
shall be entitled to recover hereunder as if no such discharge or
release had been made.
8.10 PRESERVATION OF BANK AND FRONTING BANK RIGHTS
Neither the obligations of the Borrower to the Banks and the Fronting
Bank hereunder nor the rights, powers and remedies conferred on the
Fronting Bank or any Bank by
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this Agreement or by law shall be discharged, lessened or impaired by
any act, omission or circumstance whatsoever which, but for this
provision, might operate to release or exonerate the Borrower from all
or part of each obligation or in any other way discharge, lessen or
impair the same. The obligations of the Borrower hereunder shall be in
addition to, and shall not be in any way affected or prejudiced by, any
guarantee, collateral or other security now or hereafter held by the
Banks or the Fronting Bank.
8.11 SETTLEMENT CONDITIONAL
The obligations of the Borrower hereunder to the Banks and the Fronting
Bank shall remain in full force notwithstanding the discharge of all
sums payable hereunder or the release of any security held therefor if
such discharge or release shall have been given or made in reliance on
any assurance, payment or security which is avoided under any statute
relating to winding-up, administration, insolvency or any kind of
moratorium of debts or is otherwise avoided in any manner whatsoever and
any discharge or release shall be conditional upon no assurance,
security or payment being so avoided. If any such assurance, security or
payment shall be so avoided or reduced, the Banks and the Fronting Bank,
as the case may be, shall be entitled to recover hereunder as if no such
discharge or release had been made.
8.12 CERTIFICATE
A certificate of any Bank or the Fronting Bank as to the amount paid out
by the Bank or the Fronting Bank in respect of any Letter of Credit
shall, save for manifest error, be conclusive and binding upon the
Borrower and the Banks for the purpose of this Agreement and prima facie
evidence of the payment of such amounts in any legal action or
proceedings arising in connection herewith.
8.13 REVALUATION OF OUTSTANDINGS
On each L/C Valuation Date, the Agent shall calculate the amount of the
Letter of Credit Outstandings (having regard to changes in the Euro
Amounts of the Letters of Credit which may arise as a result of currency
fluctuations) and the Agent shall notify the Borrower of the amount, if
any (the "EXCESS AMOUNT") by which the Letter of Credit Outstandings
when aggregated with the Loan exceed the aggregate Commitments of the
Banks and the Borrower shall:
8.13.1 procure that the Fronting Bank's obligations under any Letters
of Credit are reduced by an amount no less than the Excess
Amount; or
8.13.2 secure such Excess Amount by providing Cash Collateral in an
amount no less than the Excess Amount.
9. LETTER OF CREDIT COMMISSION AND FRONTING BANK FEE
9.1 LETTER OF CREDIT COMMISSION
The Borrower shall, in respect of each Letter of Credit issued at its
request, pay to the Agent for the account of each Bank (for distribution
in proportion to each Bank's L/C Proportion of such Letter of Credit), a
letter of credit commission ("LETTER OF CREDIT COMMISSION") in the
currency in which the relevant Letter of Credit is denominated at
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the L/C Commission Rate on the maximum actual and contingent liabilities
of the Fronting Bank under the relevant Letter of Credit. Such Letter of
Credit Commission shall accrue during the period beginning on the date
of issue of the relevant Letter of Credit and ending on its Expiry Date
and shall be paid in arrear on each date on which commitment commission
is payable pursuant to Clause 30.1 (Commitment Commission) during such
period and on the Expiry Date of such Letter of Credit.
9.2 FRONTING BANK FEE
The Borrower shall, in respect of each Letter of Credit, pay to the
Fronting Bank the fees specified in the letter of even date herewith
from the Fronting Bank to the Borrower at the times, and in the amounts
specified in such letter.
10. INTEREST
10.1 PAYMENT OF INTEREST
On each Interest Payment Date relating to each Advance, the Borrower
agrees to pay accrued interest on such Advance.
10.2 CALCULATION OF INTEREST
The rate of interest applicable to each Advance from time to time during
its Term shall be the rate per annum which is the sum of the Margin, the
Mandatory Costs Rate in respect thereof at such time and EURIBOR on the
Quotation Date therefor.
10.3 MARGIN
The Margin applicable to each Advance during its Term shall be the rate
per annum indicated in the table below opposite the ratio of Total Debt
to Annualised EBITDA, as determined on the Quotation Date for such Term,
by reference to the financial performance of the Financial Group during
the most recent Quarterly Period for which financial statements have
been provided in accordance with sub-clause 21.1.2 of Clause 21.1
(Financial Statements) save that for the period from the Closing Date
until the date falling twelve months thereafter the Margin shall be 2.5%
per annum:
TOTAL DEBT TO MARGIN
ANNUALISED EBITDA RATIO
greater than or equal to 7.50 : 1.00 2.25%
less than 7.50 : 1.00
but greater than or equal to 7.00 : 1.00 2.00%
less than 7.00 : 1.00
but greater than or equal to 6.00 : 1.00 1.50%
less than 6.00 : 1.00
but greater than or equal to 5.00 : 1.00 1.25%
less than 5.00 : 1.00 1.00%
but greater than or equal to 4.00 : 1.00
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less than 4.00 : 1.00 0.75%
but greater than or equal to 3.00 : 1.00
less than 3.00 : 1.00 0.50%
PROVIDED ALWAYS that after the date which falls twelve months after the
Closing Date (a) no reduction in the Margin shall occur at any time
while a Potential Event of Default has occurred and is continuing and
(b) upon the occurrence of an Event of Default and for so long as such
Event of Default is continuing the Margin shall revert to 2.25% per
annum and PROVIDED FURTHER THAT any suspension of the reduction in the
Margin or, as the case may be, any increase in the Margin to 2.25% shall
be in effect for as long as such Potential Event of Default or Event of
Default, as applicable, is continuing.
11. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
If, in relation to any Advance:
11.1.1 EURIBOR is to be determined by reference to Reference Banks and
the Agent determines that at or about 11.00 a.m., London time,
on the Quotation Date for the Term in respect of such Advance
none or only one of the Reference Banks was offering to leading
banks in the London interbank market deposits in euros for the
proposed duration of such Term; or
11.1.2 before the close of business in London on the Quotation Date for
the Term in respect of any Advance the Agent has been notified
by a Bank or each of a group of Banks to which in aggregate
fifty per cent. or more of the Loan is (or, if an Advance were
then made, would be) owed that EURIBOR does not accurately
reflect the cost to it of funding its participation in such
Advance; or
11.1.3 by reason of circumstances affecting the European interbank
market during any period of three consecutive Business Days,
EURIBOR is not available for euro to prime banks in the European
interbank market,
then, notwithstanding the provisions of Clause 10 (Interest):
(a) the Agent shall notify the Borrower and the Banks of such event;
(b) if the Advance concerned is not a Rollover Advance, such Advance
shall not be made;
(c) if the Advance concerned is a Rollover Advance, the duration of
the Term in respect of the Advance shall be one month;
(d) if the Advance concerned is a Rollover Advance, the rate of
interest applicable to such Advance from time to time during the
Term in respect of such Advance shall be the rate per annum
which is the sum of the Margin, the Mandatory Costs Rate in
respect thereof and the rate per annum determined by the Agent
to be the arithmetic mean (rounded upwards, if not already such
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a multiple, to the nearest whole multiple of one-sixteenth of
one per cent.) of the rates notified by each Bank to the Agent
before the last day of such Term to be those which express as a
percentage rate per annum the cost to each Bank of funding from
whatever sources it may reasonably select its portion of such
Advance during such Term; and
(e) if the Agent or the Borrower so requires, within five days of
notification by the Agent pursuant to paragraph (a) the Agent
and the Borrower shall enter into negotiations with a view to
agreeing a substitute basis for determining the rates of
interest which may be applicable to Advances in the future
and/or the terms upon which any Advance shall be maintained in
the future (whether in euros or another currency) and any such
substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto
PROVIDED THAT the Agent may not agree any such substitute
basis without the prior consent of each Bank.
12. REPAYMENT AND REDUCTION
12.1 REPAYMENT
The Borrower shall repay each Advance made to it in full on the last day
of the Term relating thereto. The Borrower shall not repay all or any
part of any Advance outstanding hereunder except at the times and in the
manner expressly provided herein but, subject to the terms and
conditions hereof, shall be entitled to reborrow any Advance or part
thereof repaid. The Facility shall be repaid in full on the Final
Maturity Date.
12.2 REDUCTION
12.2.1 The amount of the Facility shall be reduced in accordance with
the reduction schedule set out in Schedule 12 (Facility
Reduction Schedule) so that on each of the Reduction Dates
specified therein (or if such date is not a Business Day, on the
next succeeding Business Day) the Facility Amount on such date
shall be reduced by an amount equal to the amount obtained by
multiplying the Facility Amount on the Closing Date by the
percentage set opposite such Reduction Date.
12.2.2 If the Borrower cancels the whole or any part of the Commitments
in accordance with Clause 13.1 (Cancellation) or if the
Commitment of any Bank is reduced pursuant to Clause 14.4
(Application of Reduction) or Clause 18 (Illegality), then the
amount of the reduction to be made on each Reduction Date
thereafter will reduce pro rata by the amount so cancelled.
12.3 APPLICATION OF REDUCTION
Reduction of the Facility shall be made as follows:
12.3.1 the amount by which the Facility Amount is to be reduced in
accordance with Clause 12.2 (Reduction) shall be cancelled and
such cancellation shall reduce the Available Commitment and the
Commitment of each Bank ratably;
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12.3.2 if as a result of such cancellation the aggregate of the amount
of the Loan and Letter of Credit Outstandings would exceed the
Facility Amount (as reduced by such cancellation) (the amount of
such excess being the "EXCESS AMOUNT") then the Borrower shall,
subject to the provisions of Clause 25.4 (Break Costs), repay an
amount of the Loan equal to such Excess Amount by repaying one
or more Advances (or part thereof) as appropriate (which may not
be reborrowed at any time thereafter) on such Reduction Date
PROVIDED THAT if such Excess Amount exceeds the total amount of
all Advances outstanding hereunder, the Borrower shall provide
Cash Collateral to the Banks in relation to that proportion of
Letter of Credit Outstandings necessary to ensure that the
Letter of Credit Outstandings do not exceed the Facility Amount;
and
12.3.3 if Advances are required to be repaid pursuant to sub-clause
12.3.2, the first Advances to be repaid shall be Multikabel
Acquisition Advances.
13. CANCELLATION AND VOLUNTARY PREPAYMENT
13.1 CANCELLATION
The Borrower may, by giving to the Agent not less than fifteen days'
prior written notice to that effect, cancel the whole or any part (being
an amount of EUR 2,500,000 or any larger sum which is an integral
multiple of EUR 250,000) of the Available Facility without premium or
penalty. Any such cancellation shall reduce the Available Commitment and
the Commitment of each Bank rateably. Any amounts so cancelled may not
be reinstated.
13.2 PREPAYMENT
The Borrower may, if it has given to the Agent not less than fifteen
days' prior written notice to that effect, prepay the whole or any part
(being an amount of EUR 2,500,000 or any larger sum which is an integral
multiple of EUR 250,000) of an Advance, without premium or penalty save
that the Borrower may not voluntarily prepay any Advance which is not a
Multikabel Acquisition Advance until all the Multikabel Acquisition
Advances have been repaid in full. Subject to the terms and conditions
hereof, the Borrower shall be entitled to reborrow any Advance or part
thereof prepaid in accordance with this Clause 13.2.
13.3 NOTICE
Any notice of cancellation or prepayment given by the Borrower pursuant
to Clause 13.1 (Cancellation) or Clause 13.2 (Prepayment) shall be
irrevocable, shall specify the date upon which such cancellation or
prepayment is to be made and the amount of such cancellation or
prepayment and, in the case of a notice of prepayment, shall oblige the
Borrower to make such prepayment on such date.
13.4 NOTICE OF REMOVAL OF A BANK OR FRONTING BANK
If:
13.4.1 any sum payable to any Bank or the Fronting Bank by an Obligor
is required to be increased pursuant to Clause 15.1 (Tax
Gross-Up); or
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13.4.2 any Bank or the Fronting Bank claims indemnification from the
Borrower under Clause 15.2 (Tax Indemnity) or Clause 17.1
(Increased Costs)
the Borrower may, whilst such circumstance continues, give the Agent at
least fifteen Business Days' notice (which notice shall be irrevocable)
of its intention (a) if such circumstance relates to a Bank to cancel,
repay and/or provide Cash Collateral in respect of the Commitment of
such Bank or (b) if such circumstance relates to the Fronting Bank, to
procure the cancellation of or provide Cash Collateral in respect of the
Fronting Bank's Letters of Credit.
13.5 REMOVAL OF A BANK OR FRONTING BANK
On the day the notice referred to in Clause 13.4 (Notice of Removal of a
Bank or the Fronting Bank) expires:
13.5.1 (if such circumstance relates to a Bank) the Borrower shall
repay such Bank's portion of the Advances and shall procure
either that such Bank's L/C Proportion of each relevant Letter
of Credit be reduced to zero (by reduction of the amount of such
Letter of Credit in an amount represented by such Bank's L/C
Proportion) or that Cash Collateral be provided in an amount
equal to such Bank's L/C Proportion of such Letter of Credit);
and
13.5.2 (if such circumstance relates to the Fronting Bank) the Borrower
shall procure that the Fronting Bank's liability under each
Letter of Credit issued by it shall either be reduced to zero or
otherwise secured (to the satisfaction of the Fronting Bank
acting reasonably) by the Borrower providing Cash Collateral in
an amount equal to the Fronting Bank's maximum actual and
contingent liabilities under each such Letters of Credit.
13.6 NO OTHER REPAYMENTS
The Borrower shall not repay all or any part of any Advance except at
the times and in the manner expressly provided for in this Agreement.
14. MANDATORY PREPAYMENT
14.1 EXCESS CASH FLOW
If in respect of the financial year ending 31 December 2002 or any
financial year thereafter the Financial Group achieves any Excess Cash
Flow (calculated by reference to the audited consolidated financial
statements of the Financial Group for the relevant financial year), the
Borrower shall, within one hundred and twenty (120) days of the end of
such financial year notify the Agent of the amount of such Excess Cash
Flow and an amount equal to 50% of such Excess Cash Flow shall, upon
such notification, be applied in prepayment and cancellation of the
Facility in accordance with Clause 14.5 (Application of Reduction),
PROVIDED THAT if, in respect of any financial year, the ratio of Net
Senior Debt (calculated on the last day of such financial year) to
Annualised EBITDA is less than 2.5:1.00, then no such prepayment and
cancellation of the Facility shall be made in respect of such financial
year.
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14.2 DISPOSALS
An amount equal to:
(a) any Disposal Consideration received by any member of the Group
from any Asset Disposal less any Permitted Disposal Expenses; or
(b) any excess of estimated corporation tax or trade tax referable
to an Asset Disposal over the amounts of such tax actually
payable,
shall, on the first Business Day falling 180 days after receipt thereof,
be applied in prepayment and cancellation of the Facility in accordance
with Clause 14.5 (Application of Reduction) unless such amounts are
reinvested in the Group or used to fund (in whole or in part) an
Acquisition within one hundred and eighty (180) days of the receipt
thereof.
The Borrower shall notify the Agent promptly upon receipt of any amounts
referred to in (a) or (b) above.
14.3 WORKING CAPITAL FACILITY
An amount equal to the amount of any Forced Drawing under the Working
Capital Facility shall, promptly upon receipt by the Borrower of such
amount, be applied in prepayment and cancellation of the Facility in
accordance with Clause 14.5 (Application of Reduction).
The Borrower shall notify the Agent promptly upon receipt of any such
amount.
14.4 PURCHASE OF SENIOR NOTES
An amount equal to two times the amount of any Redemption Utilisation
shall, on the Utilisation Date of such Redemption Utilisation, be
applied in prepayment and cancellation of the Facility in accordance
with Clause 14.5 (Application of Reduction).
14.5 APPLICATION OF REDUCTION
Any amount to be applied in payment and cancellation of the Facility
pursuant to Clause 14.1 (Excess Cash Flow), Clause 14.2 (Disposals),
Clause 14.3 (Working Capital Facility) or Clause 14.4 (Purchase of
Senior Notes) a "REDUCTION AMOUNT") shall be applied as follows:
14.5.1 the Borrower shall repay an amount of the Loan equal to such
Reduction Amount by repaying the whole or part of an Advance
(which may not be reborrowed at any time thereafter) on the
first Interest Payment Date following the date on which such
Reduction Amount falls to be applied. If the Reduction Amount
exceeds the amount of the Advance to which such Interest Payment
Date relates, the Borrower shall repay Advances (which may not
be reborrowed at any time thereafter) on each succeeding
Interest Payment Date until the full amount has been prepaid;
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14.5.2 if, on the date on which such Reduction Amount falls to be
applied, such Reduction Amount together with any other Reduction
Amount then applicable, exceeds the total amount of all Advances
outstanding hereunder at such time, an amount of the Available
Facility and an amount of the Facility Amount, in each case
equal to such excess, shall be cancelled and such cancellation
shall reduce the Available Commitment and the Commitment of each
Bank rateably and shall be applied pro rata against each
reduction of the Facility to be made on the Reduction Dates
falling thereafter;
14.5.3 if (following the application of sub-clauses 14.4.1 and 14.4.2
above) on the date on which such Reduction Amount falls to be
applied, such Reduction Amount together with any other Reduction
Amount then applicable, exceeds the aggregate of the total
amount of all Advances outstanding hereunder at such time and
the amount of the Available Facility at such time, the Borrower
shall provide Cash Collateral in relation to that proportion of
Letter of Credit Outstandings equal to such excess; and
14.5.4 if Advances are required to be repaid pursuant to sub-clause
14.4.1, the first Advances to be repaid shall be Multikabel
Acquisition Advances.
14.6 CHARGED ACCOUNT
14.6.1 All amounts falling within paragraphs (a) or (b) of Clause 14.2
(Disposals) shall be paid into the Charged Account pending any
withdrawal for application as permitted in Clause 14.2
(Disposals).
14.6.2 Subject in the case of Clause 14.2 (Disposals) to the provisions
of sub-clause 14.5.1 above, amounts to be prepaid in accordance
with Clauses 14.1 (Excess Cash Flow), 14.2 (Disposals), Clause
14.3 (Working Capital Facility) or Clause 14.4 (Purchase of
Senior Notes), shall be paid into the Charged Account for
application in accordance with Clause 14.5 (Application of
Reduction).
15. TAXES
15.1 TAX GROSS-UP
All payments to be made by any Obligor to any person under any Facility
Document shall be made free and clear of and without deduction for or on
account of tax unless such Obligor is required to make such a payment
subject to the deduction or withholding of tax, in which case the sum
payable by such Obligor in respect of which such deduction or
withholding is required to be made shall be increased to the extent
necessary to ensure that, after the making of the required deduction or
withholding, such person receives and retains (free from any liability
in respect of any such deduction or withholding) a net sum equal to the
sum which it would have received and so retained had no such deduction
or withholding been made or required to be made.
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15.2 TAX INDEMNITY
Without prejudice to Clause 15.1 (Tax Gross-up), if any Finance Party or
the Agent on its behalf is required to make any payment of or on account
of tax on or in relation to any sum received or receivable hereunder
(including any sum deemed for purposes of tax to be received or
receivable by such person whether or not actually received or
receivable) or if any liability in respect of any such payment is
asserted, imposed, levied or assessed against any Finance Party or the
Agent on its behalf, the Borrower shall, upon demand of the Agent,
promptly indemnify the Finance Party which suffers a loss or liability
as a result against such payment or liability, together with any
interest, penalties, costs and expenses payable or incurred in
connection therewith, PROVIDED THAT this Clause 15.2 shall not apply to:
15.2.1 any tax imposed and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for
the avoidance of doubt, not including any sum deemed for
purposes of tax to be received or receivable by such Finance
Party but not actually receivable) by the jurisdiction in which
such Finance Party is incorporated; or
15.2.2 any tax imposed on and calculated by reference to the net income
of the Facility Office of such Finance Party actually received
or receivable by such Finance Party (but, for the avoidance of
doubt, not including any sum deemed for purposes of tax to be
received or receivable by such Finance Party but not actually
receivable) by the jurisdiction in which its Facility Office is
located.
16. TAX RECEIPTS
16.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, any Obligor is required by law to make any deduction or
withholding from any sum payable by it under any Facility Document (or
if thereafter there is any change in the rates at which or the manner in
which such deductions or withholdings are calculated), such Obligor
shall promptly notify the Agent.
16.2 EVIDENCE OF PAYMENT OF TAX
If any Obligor makes any payment under any Facility Document in respect
of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall deliver to the Agent for each Finance
Party, within thirty days after it has made such payment to the
applicable authority, an original receipt (or a certified copy thereof)
issued by such authority evidencing the payment to such authority of all
amounts so required to be deducted or withheld in respect of that
Finance Party's share of such payment.
16.3 TAX CREDIT PAYMENT
If any Obligor makes a payment under Clause 15 (Taxes) for account of
any person and such person, in its sole opinion, determines that it has
received or been granted a credit against or relief or remission for, or
repayment of tax paid or payable by it in respect of or calculated with
reference to the deduction or withholding giving rise to such
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payment, such person shall, to the extent that it can in its sole
discretion do so, without prejudice to the retention of the amount of
such credit, relief, remission or repayment pay to such Obligor such
amount as such person shall, in its sole opinion, have calculated to be
attributable to such tax. If an Event of Default or Potential Event of
Default has occurred and is continuing, any such payment may be paid to
such interest bearing account as the Agent may in its absolute
discretion select and be held as security for the performance of the
obligations of such Obligor under the Facility Documents. Nothing herein
contained shall interfere with the right of a person to arrange its tax
affairs in whatever manner it thinks fit and, in particular, no person
shall be under any obligation to claim credit, relief, remission or
repayment from or against its corporate profits or similar tax liability
in respect of the amount of such deduction or withholding or payment on
account of tax in priority to any other claims, reliefs, credits or
deductions available to it, nor oblige any person to disclose any
information relating to its tax affairs or any of its tax computations.
16.4 TAX CREDIT CLAWBACK
If any Finance Party makes any payment to an Obligor pursuant to Clause
16.3 (Tax Credit Payment) and such Finance Party subsequently
determines, in its sole opinion acting in good faith, that the credit,
relief, remission or repayment in respect of which such payment was made
was not available or has been withdrawn or that it was unable to use
such credit, relief, remission or repayment in full, such Obligor shall
reimburse such Finance Party such amount as such Finance Party
determines, in its sole opinion acting in good faith, is necessary to
place it in the same after-tax position as it would have been in if such
credit, relief, remission or repayment had been obtained and fully used
and retained by such Finance Party.
17. INCREASED COSTS
17.1 INCREASED COSTS
Subject to Clause 17.4 (Exclusions) the Borrower shall, within three
Business Days of a demand by the Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance Party
or its holding company 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.
In this Agreement "INCREASED COSTS" means:
17.1.1 a reduction in the rate of return from the Facility or on a
Finance Party's (or its holding company's) overall capital;
17.1.2 an additional or increased cost; or
17.1.3 a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or its holding company
to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations
under any Facility Document.
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17.2 NOTIFICATION
A Finance Party intending to make a claim pursuant to Clause 17.1
(Increased Costs) shall notify the Agent of the event by reason of
which it is entitled to do so within 60 days of the date upon which
such Finance Party's Facility Office became aware of its entitlement to
make such a claim and the amount thereof, whereupon the Agent shall
notify the Borrower thereof (giving reasonable details of how such
cost, reduction in rate of return, increased cost or liability has been
calculated) PROVIDED THAT nothing herein shall require such Finance
Party to disclose any confidential information relating to the
organisation of its affairs.
17.3 NO LIABILITY FOR DELAY
The Borrower shall not be obliged to indemnify any person for any part
of any cost, reduction in rate of return, increased cost or liability
under Clause 17.1 (Increased Costs) which would otherwise be payable if
such amount was incurred solely by reason of an unreasonable delay in
the relevant Finance Party notifying the Agent of the event by which it
is entitled to be so indemnified after the relevant person has become
aware of the occurrence of such event and can compute a reasonable
estimate of the amount of such cost, reduction in rate of return,
increased cost or liability.
17.4 EXCLUSIONS
Notwithstanding Clause 17.1 (Increased Costs) above, the Borrower shall
not be obliged to make any payment pursuant thereto to the extent that
the relevant cost, reduction in rate of return, increased cost or
liability:
17.4.1 results from compliance with a relevant request or requirement
not having the force of law unless compliance therewith is
customary on the part of financial institutions in the
position of the Finance Party concerned;
17.4.2 to the extent that such cost, reduction in rate of return,
increased cost or liability is compensated under any other
provision of this Agreement;
17.4.3 results from the relevant Finance Party having exceeded a
limit, or failed to comply with an obligation, in effect at
the date hereof, by reason of having agreed to the terms
hereof; or
17.4.4 attributable to the wilful breach by the relevant Finance
Party or its affiliates of any law or regulation.
18. ILLEGALITY
If, at any time, it is unlawful for a Bank or the Fronting Bank to
make, fund, issue, participate in or allow to remain outstanding all or
any of the Advances or Letters of Credit, then that Bank or the
Fronting Bank shall, promptly after becoming aware of the same, deliver
to the Borrower through the Agent a certificate to that effect and,
unless such illegality is avoided in accordance with Clause 19
(Mitigation):
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18.1.1 such Bank or the Fronting Bank shall not thereafter be
obliged to make Advances or issue or participate in Letters of Credit
hereunder and the amount of its Available Commitment shall be
immediately reduced to zero; and
18.1.2 if the Agent on behalf of such Bank or the Fronting
Bank so requires, the Borrower shall on the latest date as is, in the
Bank's or the Fronting Bank's sole opinion, the latest date permitted
by law or, if such date cannot be ascertained by the Bank or the
Fronting Bank, upon such date as the Agent shall have reasonably
specified on the instructions of such Bank or the Fronting Bank:
(a) repay such Bank's share of any outstanding Advances together
with accrued interest thereon and all other amounts owing to
such Bank hereunder; and
(b) procure that the liabilities of such Bank or the Fronting Bank
in respect of all the Letter of Credit Outstandings are
promptly reduced to zero or otherwise secured by providing
Cash Collateral acceptable to such Bank or the Fronting Bank
in respect thereof.
19. MITIGATION
If, in respect of any Bank, circumstances arise which would or would
upon the giving of notice result in:
19.1.1 the reduction of its Available Commitment to zero pursuant to
sub-clause 18.1.1 of Clause 18 (Illegality); or
19.1.2 a requirement to make an additional payment under Clause 15.1
(Tax Gross-up) or a claim for indemnification pursuant to
Clause 15.2 (Indemnification) or Clause 17 (Increased Costs),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Borrower under any of the
Clauses referred to in sub-clauses 19.1.1 and 19.1.2 such Bank shall
promptly upon its Facility Office becoming aware of the same notify the
Agent thereof and, take such steps as such Bank considers at its sole
discretion appropriate to mitigate the effects of such circumstances
including the transfer of its Facility Office to another jurisdiction
or the transfer of its rights and obligations hereunder to another
financial institution willing to participate in the Facility PROVIDED
THAT such Bank shall be under no obligation to take any such action if,
in the opinion of such Bank in its sole discretion, to do so might have
any adverse effect upon its business, operations, financial condition
or tax affairs.
20. REPRESENTATIONS
20.1 The Holding Company and each Obligor party hereto acknowledges
that each Finance Party has entered into this Agreement and
participated in the Facility (which is or will be syndicated
on an international basis) in full reliance on the
representations in this Clause 20 which are made and given
without prejudice to the applicability of the
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General Business Conditions of Chase Manhattan Bank AG referred to in
Clause 47.2 (Overdraft Facility).
20.2 REPRESENTATIONS
The Holding Company and each Obligor represents that:
20.2.1 Status it is a limited company, a stock corporation, a limited
partnership or, as the case may be, a corporation duly formed,
registered and validly existing under the laws of its Relevant
Jurisdiction;
20.2.2 Capacity it has the capacity, power and authority to own its
own property and to conduct its business as it is now being
conducted and to enter into the Facility Documents and the
Relevant Contracts to which it is a party and to exercise its
rights and perform its obligations thereunder;
20.2.3 Authorisation all action required to authorise the execution,
delivery and performance of the Facility Documents and the
Relevant Contracts to which it is party has been duly taken;
20.2.4 No Deduction or Withholding under the laws of its Relevant
Jurisdiction in force at the date hereof, it will not be
required to make any deduction or withholding from any payment
it may make under any of the Facility Documents;
20.2.5 Pari Passu under the laws of its Relevant Jurisdiction in
force at the date hereof, the claims of each Finance Party
against it under:
(a) the Facility Documents (other than the Security
Documents) to which it is a party will rank at least
pari passu with the claims of all its other unsecured
creditors save those whose claims are preferred
solely by any bankruptcy, insolvency, liquidation or
other similar laws of general application; and
(b) the Security Documents to which it is a party rank
ahead of the claims of all its other creditors (save
those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar
laws of general application and other than, if and to
the extent applicable, creditors with the benefit of
Permitted Encumbrances) against the assets the
subject of the encumbrances created by such Security
Documents;
20.2.6 No Immunity in any proceedings taken in its Relevant
Jurisdiction in relation to any of the Facility Documents, it
will not be entitled to claim for itself or any of its assets
immunity from suit, execution, attachment or other legal
process;
20.2.7 Governing Law and Judgements in any proceedings taken in its
Relevant Jurisdiction in relation to any of the Facility
Documents, the choice of English law or, as the case may be,
German law or Dutch law as the governing law of
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the Facility Documents and any judgement obtained in England or, as the
case may be, Germany or The Netherlands will be recognised and
enforced, in such Relevant Jurisdiction subject to any qualifications
as to matters of law in the legal opinions to be delivered in
connection herewith;
20.2.8 Validity and Admissibility in evidence all acts, conditions
and things required to be done, fulfilled, performed and
obtained (including, without limitation, the obtaining of any
necessary consents) in order (a) to enable it lawfully to
enter into, exercise its rights under and perform and comply
with the obligations expressed to be assumed by it in the
Facility Documents and the Relevant Contracts to which it is a
party, (b) to ensure that the obligations expressed to be
assumed by it in the Facility Documents and the Relevant
Contracts to which it is a party are legal, valid and binding
and (c) to make the Facility Documents and the Relevant
Contracts to which it is a party admissible in evidence in the
forum selected in the relevant document have been done,
fulfilled, performed and obtained;
20.2.9 No Filing or Stamp Taxes under the laws of its Relevant
Jurisdiction in force at the date hereof, it is not necessary
that any of the Facility Documents or the Relevant Contracts
be filed, recorded or enrolled with any court or other
authority in such jurisdiction or that any stamp, registration
or similar tax be paid on or in relation to any of the
Facility Documents or Relevant Contracts, save for (i) the
notarisation in Germany of the Share Pledges and any mortgages
and (ii) the notarisation of the instruments constituting the
Target Security, the Initial Dutch Share Pledge, the PrimaCom
Management Second Dutch Share Pledge and the PrimaCom
Netherlands Account and Inter-Company Loan Pledge in the
Netherlands;
20.2.10 Binding Obligations the obligations expressed to be assumed by
it in the Facility Documents and the Relevant Contracts to
which it is a party are legal and valid obligations binding on
it and enforceable in accordance with the terms thereof,
subject to any qualifications as to matters of law in the
legal opinions delivered or to be delivered in connection
herewith or therewith; and
20.2.11 Information Systems the computer and management information
systems of the Group are sufficient to permit the Group to
conduct its business without Material Adverse Effect.
20.3 FURTHER REPRESENTATIONS The Holding Company (with respect to itself and
each member of the Group) and the Borrower with respect to itself and
each of its subsidiaries only) further represent (in the case of
sub-clauses 20.3.4, 20.3.5 and 20.3.6 (in each case insofar as they
relate to the Original Financial Statements referred to in paragraph
(b) of the definition thereof) and sub-clauses 20.3.11, 20.3.12 and
20.3.13, in all such cases to the best of its knowledge and belief
having made all reasonable enquiries) that:
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20.3.1 No Winding-up no member of the Financial Group has taken any
corporate action nor have any other formal steps been taken or
legal proceedings been started or, to the best of its
knowledge and belief, threatened against it for its
winding-up, dissolution, administration or re-organisation, as
the case may be, or for the appointment of a receiver,
preliminary receiver, trustee or similar officer of it or them
or of any or all of its or their assets or revenues (other
than a solvent reorganisation on terms and conditions approved
by an Instructing Group);
20.3.2 No Material Defaults no member of the Financial Group is 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 would be likely to have a Material
Adverse Effect;
20.3.3 No Material Proceedings no action, arbitration proceeding or
administrative proceeding of or before any court or agency has
been started or, to the best of its knowledge and belief,
threatened which has a reasonable prospect of success and
which, if it succeeded, would be likely to have a Material
Adverse Effect;
20.3.4 Original Financial Statements the Original Financial
Statements referred to in paragraph (a) of the definition of
Original Financial Statements were prepared in accordance with
US GAAP and the financial statements referred to in paragraph
(b) of the definition of Original Financial Statements were
prepared in accordance with Dutch GAAP in each case
consistently applied and (in conjunction with the notes
thereto) fairly represent in accordance with US GAAP or Dutch
GAAP, as the case may be, the financial condition and
operations of the Financial Group in the case of the financial
statements referred to in paragraph (a) of the definition of
Original Financial Statements and, in the case of the
financial statements referred to in paragraph (b) of the
definition of Original Financial Statements, of the Multikabel
Group during the financial year then ended;
20.3.5 No Material Adverse Change since publication of the Original
Financial Statements there has been no material adverse change
in the business or financial condition of the Financial Group
taken as a whole or, as the case may be, the Multikabel Group
taken as a whole;
20.3.6 Written Information (a) all of the written information
supplied by or on behalf of any member of the Financial Group
and its advisers to the Finance Parties or any of them or
their advisers in connection with any Facility Document on or
prior to the date hereof and relating to any member of the
Financial Group is true, complete and accurate in all material
respects and (b) it is not aware of any material facts or
circumstances that have not been disclosed to the Finance
Parties or any of them;
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20.3.7 Encumbrances save for Permitted Encumbrances (i) no
encumbrance exists over all or any of the assets of the
Financial Group and (ii) the execution by the Holding Company
and each of the Obligors of the Facility Documents and the
Relevant Contracts to which it is a party and the exercise by
such Obligor or the Holding Company of its rights and
performance of its obligations thereunder will not result in
the existence of nor oblige any member of the Financial Group
to create any encumbrance over all or any of its present or
future revenues or assets (other than those hereunder or under
the Security Documents);
20.3.8 Execution of Facility Documents and Relevant Contracts the
execution by the Holding Company and each of the Obligors of
the Facility Documents and the Relevant Contracts to which it
is a party and its exercise of its rights and performance of
its obligations thereunder do not and will not:
(a) conflict with any agreement, mortgage, bond or other
instrument or treaty to which any member of the
Financial Group is a party or which is binding upon
them or any of their assets;
(b) conflict with the constitutive documents and rules
and regulations of any member of the Financial Group;
or
(c) conflict with any applicable law, regulation or
official or judicial order;
20.3.9 Private and Commercial Acts the execution by each of the
Holding Company and each Obligor of the Facility Documents and
the Relevant Contracts to which it is a party constitutes, and
its exercise of its rights and performance of its obligations
hereunder or thereunder will constitute, private and
commercial acts done and performed for private and commercial
purposes;
20.3.10 Environmental Compliance each member of the Group has (a) at
all times complied with all Environmental Laws and
Environmental Licences and (b) obtained and maintained in full
force and effect all Environmental Licences, save to the
extent in each case that failure so to do would not be likely
to have a Material Adverse Effect, and there are no facts or
circumstances entitling any such Environmental Licences to be
revoked, suspended, amended, varied, withdrawn or not renewed
in circumstances which would be likely to give rise to a
Material Adverse Effect;
20.3.11 Environmental Claims no Material Environmental Claim is
pending or has been made or, to the best of its knowledge and
belief, threatened against any member of the Group;
20.3.12 Sufficiency of Intellectual Property Rights the Intellectual
Property Rights owned by or licensed to the members of the
Group are all the Intellectual Property Rights required by
them in order to carry out, maintain and operate their
respective businesses, properties and assets and no member of
the Group in carrying on its respective businesses, infringes
any Intellectual Property
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Rights of any third party to any extent which would be likely
to have a Material Adverse Effect;
20.3.13 No Infringement of Intellectual Property Rights no
Intellectual Property Rights owned by the members of the Group
are, to the best of its knowledge and belief, being infringed,
nor, to the best of its knowledge and belief, is there any
threatened infringement of any such Intellectual Property
Rights in each case which would be likely to have a Material
Adverse Effect;
20.3.14 Relevant Contracts in Force save to an extent which is not
likely to have a Material Adverse Effect, the Relevant
Contracts are in full force and effect;
20.3.15 No Breach of Relevant Contracts no Obligor is in breach of the
terms of any of the Relevant Contracts, nor is there any
material dispute subsisting between the parties thereto, which
in either case would be likely to have a Material Adverse
Effect;
20.3.16 Necessary Authorisations none of the Necessary Authorisations
are the subject of any pending or, to the best of its
knowledge and belief, threatened challenge, revocation,
suspension or withdrawal nor are any sanctions pending or, to
the best of its knowledge and belief, threatened thereunder in
each case to an extent which would be likely to have a
Material Adverse Effect and each such Necessary Authorisation
is in full force and effect save to the extent that any
failure to be in full force and effect would not be likely to
have a Material Adverse Effect;
20.3.17 No Event of Default no (a) Event of Default or (b) Potential
Event of Default has occurred and is continuing;
20.3.18 Telecommunications and Cable Laws each member of the Group
complies and at all times has complied with all
Telecommunications and Cable Laws save to the extent that any
non-compliance would not be likely to have a Material Adverse
Effect;
20.3.19 Ownership of the Borrower in the case of the Borrower only,
and in respect of itself only, that it is a direct (or to the
extent of the holding of APA, indirect) wholly owned
subsidiary of the Holding Company;
20.3.20 Group Structure the Group structure (a) at the date hereof and
(b) immediately after completion of the Multikabel Acquisition
is or, as the case may be, will immediately after completion
of the Multikabel Acquisition be as set out in the Group
Structure Charts;
20.3.21 Assets of the Borrower in the case of the Borrower
only and in respect of itself only, that its assets comprise
solely (a) the shares which it beneficially owns directly or
indirectly in its subsidiaries; (b) the loans made by it to
any of its subsidiaries in accordance with the terms hereof;
(c) receivables from management services provided on arms'
length terms to members of the
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Group; (d) account balances on current accounts maintained in
the ordinary course of its business; (e) assets not included
in the operation of and the day to day running of the
Broadband Services network and (f) assets required for the
administration or management of the other assets described in
this sub-clause;
20.3.22 Assets of the Holding Company in the case of the Holding
Company only and in respect of itself only, that its assets
comprise solely (a) the shares which it owns in the Borrower;
(b) the limited partnership interests which it owns in the
direct and indirect subsidiaries of the Borrower, (which
subsidiaries in (a) and (b) shall include the subsidiaries
named in the Group Structure Charts and any future
subsidiaries acquired by a member of the Group pursuant to
Clause 6.2 (Utilisation for Acquisitions) and sub-clause
23.5.2 of Clause 23.5 (Covenants of the Borrower)); (c) the
loans made by it to any Obligor by way of Subordinated Debt;
and (d) prior to the completion of the Reorganisation, rights
in certain System Assets and subsidiaries as held by the
Holding Company on the date hereof (in respect of such
subsidiaries, as indicated in the Group Structure Charts); and
20.3.23 Information Memorandum the factual information contained in
the Information Memorandum was at its date correct in all
material respects, the financial projections contained therein
have been prepared on the basis of recent historical
information and on the basis of reasonable assumptions and
nothing has occurred or been omitted that renders the factual
information contained in the Information Memorandum untrue or
misleading in any material respect.
20.4 REPETITION OF REPRESENTATIONS Each of the representations referred to
in Clause 20.2 (Representations) and Clause 20.3 (Further
Representation) (other than those contained in sub-clauses 20.2.3,
20.2.4, 20.2.5 and 20.2.9 and sub-clauses 20.3.1, 20.3.5, 20.3.6,
20.3.14, 20.3.20 and 20.3.23) shall be deemed to be repeated by the
relevant Obligors on the date of any Notice of Drawdown hereunder and
on each Utilisation Date, by reference to the facts and circumstances
then existing but as if references to the Original Financial Statements
were references to the audited (and consolidated) financial statements
of the Holding Company most recently delivered to the Agent pursuant
hereto.
21. INFORMATION
21.1 FINANCIAL STATEMENTS
The Borrower shall and the Holding Company shall ensure that the
Borrower shall:
21.1.1 Annual Statements as soon as the same become available, but in
any event within 120 days after the end of each of its
financial years, deliver to the Agent the audited annual
consolidated financial statements of the Financial Group
prepared in accordance with U.S. GAAP PROVIDED THAT if in
accordance with the German Commercial Code (HGB) any of the
Obligors or the Holding Company are required to prepare
unaudited or, as the case may
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be, audited financial statements or if in accordance with the
German Banking Act (KWG) requirements the Banks are required
to receive the unaudited or, as the case may be, audited
financial statements of any of the Obligors or the Holding
Company, such audited or, as the case may be, unaudited
financial statements shall be provided to the Banks
immediately;
21.1.2 Quarterly Statements deliver to the Agent as soon as
practicable but in any event within 60 days after the end of
each Quarterly Period, the consolidated quarterly financial
statements of the Financial Group prepared in accordance with
U.S. GAAP together with a Compliance Certificate and a
Subscriber Certificate in each case certified by the managing
director of the Borrower;
21.1.3 Business Plan and Statements as soon as practicable but in any
event within 60 days of the end of each of its financial
years, deliver to the Agent (a) a revised consolidated
business plan (in a format acceptable to the Banks) for the
Financial Group including projected profit and loss accounts
and cash flow statements for the Financial Group for each
calendar month during the period of 12 calendar months
commencing immediately after the end of each such financial
year, and (b) for each financial year (until the Final
Maturity Date), projected profit and loss accounts, balance
sheets and cash flow statements for the Financial Group
consolidated in accordance with U.S. GAAP, together with a
reconciliation statement reconciling the performance of the
Financial Group during the previous financial year with the
business plan delivered in respect of the Financial Group for
such previous financial year and an explanation (in reasonable
detail) of such reconciliation;
21.1.4 Other Information from time to time on the request of the
Agent, furnish the Agent for distribution to the Banks, with
such other information concerning the Borrower or any member
of the Financial Group as the Agent may reasonably require;
and
21.1.5 Pro Forma Accounts deliver to the Agent as soon as practicable
but in any event within 60 days of the Closing Date, pro forma
consolidated financial statements of the Holding Company,
assuming completion of the Multikabel Acquisition, prepared by
Ernst & Young for the year ended 31 December 1999 in
accordance with US GAAP.
21.2 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Holding Company and the Borrower shall ensure that:
21.2.1 each set of financial statements delivered by it pursuant to
sub-clause 21.1.1 of Clause 21.1 (Financial Statements) is
prepared on the same basis as was used in the preparation of
the Original Financial Statements referred to in paragraph (a)
of the definition thereof and in accordance with U.S. GAAP and
consistently applied;
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21.2.2 each set of financial statements delivered by it pursuant to
sub-clause 21.1.1 of Clause 21.1 (Financial Statements) is
certified by a duly authorised officer of the relevant Obligor
as giving a true and fair view of the financial condition of
such Obligor, or, in the case of the consolidated accounts of
the Holding Company of the Financial Group in each case as at
the end of the period to which those financial statements
relate and of the results of the operations of such Obligor,
or, as appropriate, the Financial Group during such period;
21.2.3 each set of financial statements delivered by it pursuant to
sub-clause 21.1.1 of Clause 21.1 (Financial Statements) has
been audited by a generally recognised international firm of
auditors acceptable to the Agent;
21.2.4 each set of financial statements delivered under each of
sub-clauses 21.1.1, 21.1.2 and 21.1.3 of Clause 21.1
(Financial Statements) is prepared on a consistent basis to
the financial statements previously delivered thereunder, save
to the extent good practice or law requires otherwise; and
21.2.5 the managing director of the Borrower certifies that it is not
unable to meet its debts as they fall due at the same time
that the Compliance Certificate is delivered to the Agent
pursuant to sub-clause 21.1.2 of Clause 21.1 (Financial
Statements).
21.3 ACCURACY OF INFORMATION
The Holding Company and the Borrower shall ensure that all written
information supplied by or on behalf of any member of the Financial
Group and its advisers to the Finance Parties or any of them or their
advisers in connection herewith after the date hereof which relates to
any member of the Financial Group is true, complete and accurate in all
material respects at the time it is delivered.
21.4 ACCOUNTING POLICIES
The Holding Company and the Borrower shall ensure that in the event
that any financial statements are delivered which are not prepared on a
consistent basis to financial statements previously delivered
hereunder, such financial statements are accompanied by an explanation
of any changes to accounting bases used with a reconciliation of any of
the covenants in Clause 22 (Financial Condition) to the extent
reasonably requested by an Instructing Group.
21.5 OTHER INFORMATION
Each Obligor shall from time to time, on the request of the Agent,
furnish the Agent with such information about its, or, in the case of
the Holding Company, its or the Financial Group's business condition
(financial and otherwise), operations, performance, assets or prospects
as the Agent or any Finance Party through the Agent may reasonably
require and, in particular, all information and documents as may be
required under Sections 13, 13(a) and 18 of the German Banking Act
(Gesetz uber das Kreditwesen).
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21.6 ABILITY TO PAY DEBTS
Each Obligor shall, and the Holding Company shall and shall ensure that
each Material Group Company shall, provide the auditors (as referred to
in Clause 24.9 (Insolvency and Rescheduling)) with all information
required by them in order to determine such Obligor's, the Holding
Company's or, as the case may be, such Material Group Company's ability
to pay its debts as they fall due in accordance with and as
contemplated in Clause 24.9 (Insolvency and Rescheduling).
22. FINANCIAL CONDITION
The consolidated financial condition of the Financial Group as
evidenced by the then most recent consolidated financial statements
delivered pursuant to sub-clauses 21.1.1, 21.1.2 and 21.1.3 of Clause
21.1 (Financial Statements) (adjusted as an Instructing Group may
reasonably consider appropriate (or in the event of a dispute between
the Holding Company and an Instructing Group as to what is appropriate,
as determined by the auditors of the Holding Company), to take account
of any changes in the basis on which such statements were prepared or
in generally accepted applicable accounting principles) shall be such
that:
22.1 TOTAL LEVERAGE RATIO
As at each Quarter Day specified below the ratio of Total Debt to
Annualised EBITDA (determined in respect of the Quarterly Period which
ends on such Quarter Day) shall not exceed the ratio set alongside such
Quarter Day:
QUARTER DAY RATIO
30 September 2000 13.00:1.00
31 December 2000 13.00:1.00
31 March 2001 13.00:1.00
30 June 2001 13.00:1.00
30 September 2001 13.00:1.00
31 December 2001 12.50:1.00
31 March 2002 12.50:1.00
30 June 2002 12.00:1.00
30 September 2002 12.00:1.00
31 December 2002 11.00:1.00
31 March 2003 11.00:1.00
30 June 2003 10.75:1.00
30 September 2003 10.75:1.00
31 December 2003 10.00:1.00
31 March 2004 10.00:1.00
30 June 2004 9.75:1.00
30 September 2004 9.75:1.00
31 December 2004 9.00:1.00
31 March 2005 9.00:1.00
30 June 2005 8.75:1.00
30 September 2005 8.75:1.00
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Quater Day Rate
31 December 2005 and on each Quarter Day thereafter 8.00:1.00
22.2 NET SENIOR LEVERAGE RATIO
As at each Quarter Day specified below the ratio of Net Senior Debt to
Annualised EBITDA (determined in respect of the Quarterly Period which
ends on such Quarter Day) shall not exceed the ratio set alongside such
Quarter Day:
QUARTER DAY RATIO
30 September 2000 8.00:1.00
31 December 2000 8.00:1.00
31 March 2001 8.00:1.00
30 June 2001 8.00:1.00
30 September 2001 8.00:1.00
31 December 2001 7.50:1.00
31 March 2002 7.50:1.00
30 June 2002 7.35:1.00
30 September 2002 7.35:1.00
31 December 2002 7.00:1.00
31 March 2003 7.00:1.00
30 June 2003 6.75:1.00
30 September 2003 6.75:1.00
31 December 2003 6.00:1.00
31 March 2004 6.00:1.00
30 June 2004 5.75:1.00
30 September 2004 5.75:1.00
31 December 2004 5.00:1.00
31 March 2005 5.00:1.00
30 June 2005 4.75:1.00
30 September 2005 4.75:1.00
31 December 2005 4.00:1.00
31 March 2006 7.50:1.00
30 June 2006 3.75:1.00
30 September 2006 3.75:1.00
31 December 2006 3.25:1.00
31 March 2007 3.25:1.00
30 June 2007 3.25:1.00
30 September 2007 3.25:1.00
31 December 2007 and on each Quarter Day thereafter 3.00:1.00
22.3 TOTAL INTEREST RATIO
As at each Quarter Day set out below, the ratio of Consolidated EBITDA
to Total Cash Interest Expense (determined in respect of the Quarterly
Period which ends on such Quarter Day) shall not be less than the ratio
set alongside such Quarter Day:
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QUARTER DAY RATIO
30 September 2000 00.80:1.00
31 December 2000 00.80:1.00
31 March 2001 00.80:1.00
30 June 2001 00.80:1.00
30 September 2001 00.80:1.00
31 December 2001 1.00:1.00
31 March 2002 1.00:1.00
30 June 2002 1.00:1.00
30 September 2002 1.00:1.00
31 December 2002 1.00:1.00
31 March 2003 1.00:1.00
30 June 2003 1.05:1.00
30 September 2003 1.05:1.00
31 December 2003 1.10:1.00
31 March 2004 1.10:1.00
30 June 2004 1.20:1.00
30 September 2004 1.20:1.00
31 December 2004 1.35:1.00
31 March 2005 1.35:1.00
30 June 2005 1.45:1.00
30 September 2005 1.45:1.00
31 December 2005 1.65:1.00
31 March 2006 1.65:1.00
30 June 2006 1.75:1.00
30 September 2006 1.75:1.00
31 December 2006 2.00:1.00
31 March 2007 2.00:1.00
30 June 2007 2.15:1.00
30 September 2007 2.15:1.00
31 December 2007 2.45:1.00
31 March 2008 2.45:1.00
30 June 2008 2.55:1.00
30 September 2008 2.55:1.00
31 December 2008 and on each Quarter Day thereafter 2.85:1.00
22.4 PRO FORMA DEBT SERVICE RATIO
In respect of the Quarterly Period ending 31 December 2002 and each
Quarterly Period thereafter, and tested by reference to the
consolidated financial statements of the Financial Group for such
Quarterly Period, the ratio of Annualised EBITDA of the Financial Group
to Pro Forma Debt Service shall not be less than 1.00:1.00 on the last
day of such Quarterly Period.
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22.5 MINIMUM EBITDA
22.5.1 As at each Quarter Day specified below the Consolidated EBITDA
of the Financial Group, determined on a rolling 12 month
basis, shall not fall below the amount set alongside such
Quarter Day:
QUARTER DAY MINIMUM CONSOLIDATED
EBITDA (EUR M)
30 September 2000 48,000
31 December 2000 48,000
31 March 2001 48,000
30 June 2001 48,000
30 September 2001 48,000
31 December 2001 57,057
31 March 2002 57,057
30 June 2002 63,717
30 September 2002 63,717
31 December 2002 73,707
31 March 2003 73,707
30 June 2003 84,529
30 September 2003 84,529
31 December 2003 100,761
31 March 2004 100,761
30 June 2004 111,621
30 September 2004 111,621
31 December 2004 127,911
31 March 2005 127,911
30 June 2005 139,404
30 September 2005 139,404
31 December 2005 156,643
31 March 2006 156,643
30 June 2006 169,247
30 September 2006 169,247
31 December 2006 188,154
31 March 2007 188,154
30 June 2007 197,511
30 September 2007 197,511
31 December 2007 211,546
31 March 2008 211,546
30 June 2008 218,684
30 September 2008 218,684
31 December 2008 229,391
31 March 2009 229,391
30 June 2009 and on each Quarter Day 236,635
thereafter
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A "rolling 12 month basis" shall be construed as the period of
four consecutive Quarterly Periods ending on the relevant
Quarter Day.
22.5.2 The covenant contained in sub-clause 22.5.1 shall be reset
upon completion of each Acquisition to include 80% of the pro
forma net income of the company or assets acquired. The pro
forma net income of such company or assets acquired shall be
calculated by reference to (a) 40% of the pro forma net income
of such company or assets for the period from January to June
inclusive and (b) 60% of the pro forma net income of such
company or assets for the period from July to December
inclusive.
23. COVENANTS
23.1 POSITIVE COVENANTS
Each of the Holding Company and the Borrower undertakes that it shall,
and shall procure that its subsidiaries shall:
23.1.1 Maintenance of Legal Validity obtain, comply with the terms of
and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences and consents
required in or by the laws and regulations of the Relevant
Jurisdiction to enable it lawfully to enter into and perform
its obligations under the Facility Documents to which it is a
party and to ensure the legality, validity, enforceability or
admissibility in evidence in the Relevant Jurisdiction of the
Facility Documents to which it is a party subject to any
matters of law contained in the legal opinions delivered or to
be delivered in connection herewith or therewith;
23.1.2 Insurance maintain insurances on and in relation to its
business and assets with reputable underwriters or insurance
companies against such risks and to such extent as is usual
for companies and partnerships carrying on a business such as
that carried on by it;
23.1.3 Notification of Event of Default (in the case of the Borrower
and the Holding Company only, it being understood that
notification by one party will be sufficient to satisfy both
parties' obligations in respect of this clause 21.1.3)
promptly inform the Agent of the occurrence of any Event of
Default or Potential Event of Default and, upon receipt of a
written request to that effect from the Agent, confirm to the
Agent that, save as previously notified to the Agent or as
notified in such confirmation, no Event of Default or
Potential Event of Default has occurred;
23.1.4 Pari Passu ensure that at all times the claims of the Finance
Parties against it under:
(a) the Facility Documents (other than the Security
Documents) to which it is a party rank at least pari
passu with the claims of all their other unsecured
creditors save those whose claims are preferred by
any
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bankruptcy, insolvency, liquidation or other similar
laws of general application; and
(b) the Security Documents to which it is a party rank
ahead of the claims of all its other creditors (other
than, if and to the extent applicable, creditors with
the benefit of Permitted Encumbrances) against the
assets the subject of the encumbrances created by
such Security Documents:
23.1.5 Material Commercial Contracts comply with the terms of the
Material Commercial Contracts and do all that is necessary to
maintain all Material Commercial Contracts in full force and
effect save to the extent that any such non-compliance or
failure to maintain a Material Commercial Contract in full
force and effect would not be likely to have a Material
Adverse Effect;
23.1.6 Preservation of Assets maintain and preserve all of its assets
that are necessary and material in the conduct of its business
as conducted at the date hereof in good working order and
condition (ordinary wear and tear excepted) and repair (with
reasonable promptness) any damage to such assets or replace
such assets with equivalent assets save to the extent a
failure so to do would not be likely to have a Material
Adverse Effect.
23.1.7 Access to Information to the extent requested by the Agent, at
any time whilst an Event of Default is continuing, procure
that any representative or professional adviser to the Agent
may have access to and be provided with copies of books,
records, accounts, documents, computer programmes, data or
other information in the possession of or available to it,
save to the extent that the provision of such copies would
either result in a breach of any applicable law or would be
contrary to any agreement which the member of the Group
concerned has at the date of this Agreement entered into with
any third party (in which case the Borrower and the Agent will
enter into discussion concerning the extent of the disclosure
which is allowable in the circumstances);
23.1.8 Maintenance of Licences and other Authorisations save to the
extent a failure so to do would not be likely to have a
Material Adverse Effect maintain and protect its rights and
interests in the Relevant Contracts and shall:
(a) promptly pay all and any registration, renewal and
licence fees and any fees and other additional
payments payable under the Licences and/or the
Environmental Licences;
(b) procure that all notices and registrations necessary
for the protection by them of their respective rights
and interests therein are promptly given and/or made
in the appropriate forms; and
(c) promptly take such action as may be reasonably
required to protect the same from infringement;
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23.1.9 Business Plan conduct its business in all material respects in
accordance with the general parameters specified in the
Business Plan PROVIDED THAT:
(a) this sub-clause 23.1.12 shall not of itself oblige
any Obligor to comply with any particular financial
targets or projections which may be included in such
Business Plan; and
(b) this sub-clause 23.1.12 shall not of itself restrict
any Obligor from making any acquisition or disposal
of any asset or expanding or altering any System or
system;
23.1.10 Compliance with Laws comply with the terms and conditions of
all laws, directives, regulations, agreements, licences and
concessions including, without limitation, all Environmental
Laws and all Environmental Licences, all Telecommunications
and Cable Laws and all Licences, save to the extent that any
non-compliance therewith would not be likely to have a
Material Adverse Effect;
23.1.11 Payment of 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 otherwise subject to pay
tax and will promptly pay all taxes shown to be due and
payable on such returns or any assessment made against it
(other than where (a) the same is being contested in good
faith and where payment thereof can lawfully be withheld and
(b) either (i) would not result in an encumbrance with
priority to the security created or evidenced by the Security
Documents or (ii) against which it is maintaining adequate
reserves);
23.1.12 Notices notify the Agent forthwith upon receipt by it of any
notice from any government, court or regulatory authority or
agency which is likely to give rise to the enforcement,
revocation, termination, material amendment, suspension or
withdrawal of any Relevant Contract where the same would be
likely to have a Material Adverse Effect;
23.1.13 Necessary Authorisations ensure that none of the Necessary
Authorisations are subject to a pending or threatened
challenge, revocation, suspension or withdrawal to any extent
which would be likely to have a Material Adverse Effect;
23.1.14 Interest on Subordinated Debt ensure that each member of the
Group which has borrowed Subordinated Debt maintains a
shareholders' debt to equity ratio such that any interest paid
to the Holding Company or any shareholder in relation to any
Subordinated Debt is not recharacterised as dividends for tax
purposes in the Relevant Jurisdiction; and
23.1.15 Hedging Arrangements ensure that, within 90 days from the date
of this Agreement, the Borrower has entered into such interest
rate hedging arrangements as are necessary to hedge, for a
period of at least 3 years from the date of implementation of
such arrangements, the Financial Group's
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exposure to interest rate fluctuations in relation to a
notional principal amount of no less than an amount equal to
fifty per cent. (50%) of the aggregate indebtedness for
borrowed money of the Financial Group from time to time.
23.2 NEGATIVE COVENANTS
The Holding Company and the Borrower shall ensure that no member of the
Group shall:
23.2.1 Relevant Contracts permit or agree to any amendment, waiver,
termination or assignment to or of any of the terms and
conditions of any Relevant Contract if such amendment, waiver,
termination or assignment would be likely to have a Material
Adverse Effect;
23.2.2 Indebtedness create, assume, incur or otherwise permit to be
outstanding any indebtedness for borrowed money other than:
(a) any indebtedness for borrowed money created under
this Agreement;
(b) any Subordinated Debt;
(c) any indebtedness for borrowed money outstanding
between the Borrower and any Obligor;
(d) any Deferred Consideration relating to any
Acquisition PROVIDED THAT the amount of such Deferred
Consideration does not exceed the Available Facility
at such time;
(e) any indebtedness for borrowed money arising under a
derivative transaction entered into in accordance
with sub-clause 23.1.15 of Clause 23.1 (Positive
Covenants) or any currency exchange derivative
transactions entered into in relation to the Working
Capital Facility and the Senior Notes with a notional
principal amount of up to an amount equal to fifty
per cent. (50%) of the aggregate indebtedness under
the Working Capital Facility and the Senior Notes;
(f) any indebtedness for borrowed money existing under
the Finance Leases PROVIDED THAT the maximum
aggregate amount of such indebtedness of the Group
when aggregated with the amount of the indebtedness
for borrowed money of the Holding Company under any
Finance Leases held by the Holding Company does not
exceed EUR 25,000,000;
(g) any other indebtedness for borrowed money of the
Group outstanding at any time up to a maximum
aggregate amount of EUR 10,000,000;
(h) at any time prior to the date of the first
Utilisation of the Facility, the Existing PrimaCom
Indebtedness, the MeesPierson Indebtedness and the
ENW Indebtedness; and
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(i) at any time prior to the date which falls 60 days
after the Closing Date, the Existing Multikabel
Indebtedness other than the MeesPierson Indebtedness
and the ENW Indebtedness;
23.2.3 Negative Pledge create or permit to subsist any encumbrance
over all or any of its present or future revenues or assets
(including, without limitation, (and for the avoidance of
doubt) any such revenues and assets released from the Existing
Encumbrances pursuant to the terms hereof) other than
Permitted Encumbrances;
23.2.4 Loans and Guarantees make any loans, grant any credit or give
any guarantee or indemnity (except as required hereby) to or
for the benefit of any person or otherwise voluntarily assume
any liability, whether actual or contingent, in respect of any
obligation of any other person other than:
(a) loans made, or credit granted, by an Obligor to
another Obligor;
(b) credit granted by any Operating Company in the
ordinary course of its business consistent with good
practice in the cable television industry;
(c) investments made in the ordinary course of business
of the Group by way of loan up to a maximum aggregate
amount of EUR10,000,000 for the Group;
(d) any guarantee or indemnity granted by a member of the
Group in respect of obligations permitted by the
terms hereof of an Obligor or any guarantee or
indemnity granted by a member of the Group who is not
an Obligor in respect of obligations permitted by the
terms hereof of another member of the Group who is
not an Obligor;
(e) loans made by a member of the Group to its employees
in the ordinary course of its employees' employment
up to an aggregate amount in respect of the Group as
a whole of EUR100,000;
(f) loans made or credit granted by a member of the Group
who is not an Obligor to another member of the Group
who is not an Obligor; and
(g) subordinated debt lent by a member of the Group which
is not an Obligor to an Obligor;
23.2.5 Disposals subject to Clause 14.2 (Disposals) hereof,
(disregarding sales of stock in trade in the ordinary course
of business and excluding any transfer pursuant to the
Reorganisation) without the prior written approval of an
Instructing Group, sell, lease, transfer or otherwise dispose
of, by one or more transactions or series of transactions
(whether related or not), the whole or any part of its
revenues or its assets other than:
(a) the disposal on arms length terms for full market
value of any asset where (i) the value (which shall
either be its net book value or the
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amount of proceeds from such disposal, whichever is
the higher) of such asset (when aggregated with the
value of all other assets of the Group, calculated on
a similar basis, disposed of during the then current
financial year) does not exceed an amount equal to
five per cent. (5%) of the total assets of the
Financial Group (as at the date of such
determination) and (ii) the Net Revenues generated by
such assets (when aggregated with the Net Revenues
generated by all other assets of the Financial Group,
calculated on a similar basis, disposed of during the
then current financial year) does not exceed five per
cent. (5%) of the consolidated Net Revenues of the
Financial Group taken as a whole for such period
provided that, notwithstanding the provisions of this
paragraph (a) no disposal of any shareholding in
Mediakabel B.V.may take place without the prior
written approval of an Instructing Group;
(b) the disposal of any System Asset to any other person
in exchange for equivalent or similar System Assets
of such person located in the same jurisdiction
PROVIDED THAT ten Business Days prior to the proposed
exchange of System Assets, the Borrower has delivered
to the Agent a certificate from the finance director
of the Holding Company certifying and demonstrating
in a form satisfactory to the Agent, that after the
occurrence of such exchange the Financial Group shall
remain in compliance with the terms of this
Agreement, (including without limitation, Clause 22
(Financial Condition) hereof), from the date of such
exchange until the Final Maturity Date through the
provision of pro forma accounts and projections for
the Financial Group prepared on an annual basis for
each financial year until the Final Maturity Date and
on a monthly basis in relation to the first twelve
months following the date of the exchange. Such
projections will be based upon reasonable assumptions
prepared on a consistent basis to the projections
delivered under sub-clause 21.1.3 of Clause 21.1
(Financial Statements) hereof;
(c) any disposal for cash on arm's length commercial
terms of any surplus or obsolete assets no longer
required for the efficient operation of the business
of the Group; and
(d) any disposal by a member of the Group to an Obligor;
23.2.6 Business of the Borrower (in the case of the Borrower only)
trade or undertake any activity other than those activities
specified in sub-clause 20.3.21 of Clause 20.3 (Further
Representations) or acquire any business or part of a business
(save where such Acquisition complies with the requirements of
Clause 6.2 (Utilisation for Acquisitions) and the
documentation specified in such clause is delivered in
relation to such Acquisition), hold any assets (other than
rights relating to intercompany loans made by the Borrower to
other Obligors and the proceeds of any drawing
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hereunder) or incur any obligations other than as contemplated
by the Facility Documents;
23.2.7 Share Capital of Operating Companies (in the case of the
Borrower only) increase the share capital which it owns in any
of the Operating Companies out of the retained earnings (in
the case of Operating Companies established or incorporated in
Germany, Kapitalerhohung aus Gesellschaftsmitteln) of such
Operating Companies without the prior written consent of an
Instructing Group;
23.2.8 Conduct of Business no member of the Group shall carry on its
business other than in accordance with the terms of all
applicable Relevant Contracts and the Business Plan in each
case to the extent that a failure so to do would be likely to
have a Material Adverse Effect and the terms of the Facility
Documents; or
23.2.9 Dividends pay, make or declare any dividend or make any other
payment or distribution to its shareholders (or, if it is a
partnership, its general or limited partner) unless (i) such
shareholder is a member of the Financial Group and (ii) in the
case of any such dividend, payment or distribution to be made
to the Holding Company the same is permitted under Clause 23.6
(Restrictions on Payments) hereof PROVIDED THAT any member of
the Group may pay, make or declare any dividend or make any
other payment or distribution to a third party minority
interest shareholder as long as the aggregate of all such
payments made by members of the Group does not exceed
EUR10,000 in any financial year.
23.3 NEGATIVE COVENANTS OF THE HOLDING COMPANY
The Holding Company shall not:
23.3.1 Negative Pledge create or permit to subsist any encumbrance
over the whole or any part of its shareholding in the Borrower
or any System Asset save, prior to the date of the
Reorganisation, for encumbrances arising in the ordinary
course of business and any Additional Security;
23.3.2 Indebtedness create, assume, incur or otherwise permit to be
outstanding any indebtedness for borrowed money other than:
(a) any indebtedness for borrowed money arising under the
Working Capital Facility (or any substitute
financing) or the Replacement Senior Notes up to the
aggregate of EUR375,000,000 and any interest
capitalised pursuant to the terms thereof PROVIDED
THAT the net amount of the proceeds of such
indebtedness are (1) invested in the Borrower and/or
its subsidiaries in the form of equity or
Subordinated Debt and provided further that if such
amount is lent as Subordinated Debt, such loan must
be assigned to the Finance Parties or (2) used to
finance Acquisitions where the entities or assets so
acquired become, upon acquisition, subsidiaries or,
as the case may be, assets of the Borrower; or
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(b) indebtedness resulting from any issuance of Senior
Notes (other than the Replacement Senior Notes) or
Holding Company Debt PROVIDED THAT:
(1) the claims of the relevant creditors against
the Holding Company are structurally or
contractually subordinated to the claims of
the Finance Parties under the Facility
Documents;
(2) the net amount of the proceeds of such
indebtedness are (i) immediately lent to, or
invested in, the Borrower and/or its
subsidiaries in the form of equity or
Subordinated Debt and provided further that
if such amount is lent as Subordinated Debt,
such loan must be assigned to the Finance
Parties or (ii) used to finance Acquisitions
where the entities or assets so acquired
become, upon acquisition, subsidiaries or,
as the case may be, assets of the Borrower;
(3) such indebtedness does not mature before the
date which falls 6 months after the Final
Maturity Date;
(4) no breach of any of the provisions of this
Agreement is caused by such incurrence or
issue and prior to such incurrence or issue
the finance director of the Holding Company
has certified and demonstrated in form and
substance satisfactory to the Agent, that
such compliance shall continue from the date
of incurrence or issue until the Final
Maturity Date through the provision of pro
forma accounts and projections for the
Financial Group prepared on an annual basis
for each financial year until the Final
Maturity Date and on a monthly basis in
relation to the first twelve months from the
date of incurrence or issue and, in each
case, based upon reasonable assumptions and
prepared on a consistent basis to the
projections delivered under sub-clause
21.1.3 of Clause 21 (Financial Statements)
hereof and, in relation to the yearly
accounts and projections, accompanied by a
statement demonstrating that six-monthly
figures (based upon a linear interpolation
of the yearly figures produced), would also
show pro forma compliance with the financial
covenants contained in Clause 22 (Financial
Condition) hereof;
(5) the negative covenants contained in any
documentation relating to any Holding
Company Debt or any such Senior Notes are no
more restrictive than those contained in
this Agreement and the terms of the Facility
Documents would not cause a breach under any
such documentation; and
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(6) the Holding Company shall, prior to the
incurrence or issuance of such indebtedness,
promptly provide to the Agent copies of the
documentation constituting such Holding
Company Debt or Senior Notes (as
applicable).
23.3.3 Business conduct or otherwise engage in any business or
operations other than (and only to the extent otherwise
permitted under the terms of this Agreement) relating to:
(i) the ownership of the share capital or other interests
of its respective subsidiaries, the sale and transfer
of such ownership interests, and the exercise of
rights and performance of obligations in connection
therewith;
(ii) the implementation of the Reorganisation;
(iii) compliance with applicable reporting and other
obligations under any applicable laws;
(iv) making loans to or other investments in its
subsidiaries by way of Subordinated Debt;
(v) other activities incidental or related to the
foregoing;
(vi) its obligations under the Finance Documents; and
(vii) prior to the System Asset Transfer, the operation of
System Assets (for the avoidance of doubt including,
but not limited to, the incurrence of capital
expenditure or operating expenses in relation
thereto).
23.3.4 Disposals dispose of any of its assets other than in
accordance with the Reorganisation or the System Asset
Transfer.
23.3.5 Acquisitions create or acquire any new subsidiaries, enter
into any partnership or acquire any business without such new
subsidiary becoming an Obligor under this Agreement or, if
such person is unable to accede hereto as an Obligor due to
the prohibitions of any applicable law, without the consent of
an Instructing Group (and shall ensure that no member of the
Financial Group other than the Borrower or a wholly-owned
subsidiary of the Borrower shall do any of the foregoing).
23.4 POSITIVE COVENANTS OF THE HOLDING COMPANY
The Holding Company shall:
23.4.1 Reorganisation use its best efforts to complete the
Reorganisation by 30 June 2001 and shall confirm to the Agent
when the Reorganisation has been completed PROVIDED THAT if
the Reorganisation is not completed by such date, (or if the
circumstances described in sub-clause 24.4.4 hereof occur
prior to
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such date) it shall (i) provide a Share Pledge over the shares
and partnership interests it holds in all its subsidiaries
(other than the Borrower or a subsidiary of the Borrower)
including its interests in the shares of Prima TV broadcasting
GmbH and the partnership interests it holds in the
subsidiaries of PrimaCom Kabelbetriebsverwaltungsgesellschaft
mbH, (ii) become an Additional Guarantor in accordance with
sub-clause 45.1.1 of Clause 45.1 (Additional Guarantors)
hereof and (iii) shall procure that its subsidiaries and
PrimaCom Kabelbetriebsverwaltungsgesellschaft mbH and the
subsidiaries thereof grant security in form and substance
satisfactory to the Agent on substantially the same terms as
the Security Documents (such security and guarantee described
in (i), (ii) and (iii) above together with the System Asset
Security being herein defined as the "ADDITIONAL SECURITY").
23.4.2 Transfer of System Assets use its best efforts to ensure that
all of its rights in any System Assets are transferred to the
Borrower or a wholly-owned subsidiary of the Borrower or
(prior to the Reorganisation) to a wholly-owned subsidiary of
the Holding Company before 31 January 2001, or failing such
transfer by such date (or if the circumstances described in
sub-clause 23.4.4 hereof occur prior to such date), (i) full
asset security is granted by it in favour of the Beneficiaries
over all of its Subscriber Receivables together with all of
its other Net Revenues in form and substance satisfactory to
the Finance Parties and (ii) it becomes an Additional
Guarantor in accordance with sub-clause 45.1.1 of Clause 45.1
(Additional Guarantors) hereof (such security and guarantee
being together defined as the "SYSTEM ASSET SECURITY").
23.4.3 Net Revenues ensure that any Net Revenues received or
generated by it during any Quarterly Period prior to the date
of completion of the Reorganisation (less any Capital
Expenditure or operating expenses incurred by the Holding
Company in connection with its System Assets) are invested in
or lent to the Borrower in the form of equity or Subordinated
Debt prior to the last day of the immediately succeeding
Quarterly Period;
23.4.4 Additional Security ensure that, prior to any borrowing under
the Working Capital Facility or (if earlier) prior to the
issue of any Senior Notes or the incurrence of any Holding
Company Debt (other than inter-company loans permitted
pursuant to the terms hereof), if, in each such case, both the
System Asset Transfer and the Reorganisation have not been
completed, it shall (and shall ensure that all other relevant
members of the Financial Group shall) enter into the
Additional Security upon terms satisfactory to the Agent.
23.4.5 Working Capital Facility Drawings:
(a) at the request of the Agent (acting on the
instructions of an Instructing Group) and whilst an
Event of Default is continuing request an advance, in
the amount specified by the Agent, to be made by the
Working Capital Lenders under the Working Capital
Facility; and
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(b) on the last day on which a request for an advance can
be made under the Working Capital Facility (being, at
the date hereof, the day falling 61 days before the
end of the availability period under the Working
Capital Facility) submit a request for an advance to
be made by the Working Capital Lenders under the
Working Capital Facility in an amount equal to the
undrawn amount of the Working Capital Facility.
23.4.6 Working Capital Facility Proceeds ensure that:
(a) the proceeds of any drawing under the Working Capital
Facility; and
(b) if the Working Capital Facility is cancelled in whole
or in part, an amount equal to the amount of any such
cancellation
shall be (i) immediately invested in or lent to the Borrower
in the form of equity or Subordinated Debt PROVIDED THAT if
such amount is lent to the Borrower as Subordinated Debt, the
benefit of such loan must be assigned to the Finance Parties
or (ii) applied for the purposes specified in paragraph (a)(2)
of sub-clause 23.3.2 of Clause 23.3 (Negative Covenants of the
Holding Company).
23.4.7 Funding procure that prior to the date which falls 24 months
after the date of the first Utilisation hereunder:
(a) EUR200,000,000 (or its equivalent) of indebtedness
has been incurred by it (whether under the Working
Capital Facility or pursuant to the issue of Senior
Notes or pursuant to any other Holding Company Debt)
and such indebtedness complies with the requirements
set out in the proviso to sub-clause 23.3.2 (b) of
Clause 23.3 (Negative Covenants of the Holding
Company);
(b) EUR200,000,000 (or its equivalent) has effectively
been invested in the Group in the form of equity or
Subordinated Debt and if such amount has been lent as
Subordinated Debt, such loan has been assigned to the
Finance Parties; or
(c) following a merger on terms approved by an
Instructing Group involving the issue of shares by
the Holding Company, the share capital of the Holding
Company is increased by at least EUR200,000,000 by
reference to the mid market value of each share in
the Holding Company immediately prior to the
announcement of such merger multiplied by the number
of shares so issued PROVIDED THAT the assets acquired
as a result of such merger are held directly or
indirectly by a subsidiary of the Borrower which is
an Obligor.
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23.5 COVENANTS OF THE BORROWER
The Borrower shall (save to the extent that any of the following arise
pursuant to the Reorganisation) give the Agent no less than twenty (20)
Business Days' prior written notice of any member of the Group's
intention to:
23.5.1 merge or consolidate with any other company or person, unless
the resulting entity will assume all the obligations of the
relevant member of the Group concerned under the Facility
Documents and Relevant Contracts to which it is a party, and
will be of at least an equivalent creditworthiness to the
relevant member of the Group (in each case as demonstrated to
the reasonable satisfaction of the Agent);
23.5.2 create or acquire any new subsidiaries, enter into any
partnerships or acquire any business (other than by way of
acquisition funded through a Utilisation of this Facility in
accordance with Clause 6.2 (Utilisation for Acquisitions)
hereof), unless it can demonstrate that, it is an acquisition
which is being made by the Borrower or by a wholly owned
subsidiary of the Borrower and would satisfy the requirements
specified in Clause 6.2 (Utilisation for Acquisitions) hereof
as if it were being funded through a Utilisation of this
Facility and provide all financial documentation specified
therein in accordance therewith and, in each case, procure
that the relevant new subsidiary or partnership executes a
Guarantor Accession Memorandum, delivers the required
accompanying documents and grants any security required in
accordance with Clause 45.1 (Additional Guarantors);
23.5.3 issue any further shares (save for issues of shares by any
member of the Group to its holding company) or alter any
rights attaching to its issued shares in existence at the date
hereof;
23.5.4 open or permit to subsist any bank account with any person
other than a Bank, except for any bank accounts held by any
person whose share capital or limited partnership interest (as
appropriate) is acquired by any member of the Group after the
date hereof and in relation to which it shall use its
reasonable efforts to transfer such accounts to a Bank within
3 months of the date of such acquisition, failing which the
Borrower shall ensure that the relevant member of the Group
shall grant an Account Pledge over such accounts in favour of
the Beneficiaries in form and substance satisfactory to the
Agent as soon as reasonably practicable subject always to the
requirements and application of any applicable law; or
23.5.5 change its financial year end from 31 December.
The Agent shall be entitled within ten (10) Business Days of receipt of
such notice to request the Borrower to supply to the Agent any relevant
information in connection with the proposed action as reasonably
requested and set out in such notice.
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The Agent shall notify the Borrower, within ten (10) Business Days of
receipt of such notice, or if additional information has been requested
by the Agent within the prescribed time, within ten (10) Business Days'
of receipt of such information, whether the proposed action is or is, in
the reasonable opinion of an Instructing Group likely to have a material
adverse effect on the risk position of the Banks.
If the proposed action is so considered to have such a material adverse
effect and the relevant member of the Group nevertheless takes such
action, the Agent shall be entitled to make (and, if so instructed by an
Instructing Group, shall make) any declaration set out in Clause 24.25
(Acceleration and Cancellation) and call for repayment of the Advances
and/or cash collateralisation of the Letters of Credit and exercise the
other rights in accordance with Clause 24.25 (Acceleration and
Cancellation).
23.6 RESTRICTIONS ON PAYMENTS
Notwithstanding any other provision hereof no member of the Group shall
pay, make or declare any dividend or pay any interest or other
distribution to the Holding Company save that (PROVIDED THAT no Event
of Default or Potential Event of Default has occurred or would arise as
a result thereof):
23.6.1 any member of the Group may pay, make and declare dividends,
pay any interest or make any other distribution to the Holding
Company solely for the purpose of meeting the Holding
Company's interest payment obligations in respect of (a) the
Working Capital Facility or the Replacement Senior Notes or
(b) any Senior Notes (other than the Replacement Senior Notes)
or any Holding Company Debt arising in accordance with
sub-clause 23.3.2(b) of Clause 23.3 (Negative Covenants of the
Holding Company); and
23.6.2 any member of the Group may pay, make and declare dividends,
pay any interest or make any other distribution or loan to the
Holding Company in order for the Holding Company to pay
Holding Company Management Expenses.
23.7 FURTHER COVENANTS OF THE BORROWER
23.7.1 The Borrower shall ensure that, unless it is agreed otherwise
by an Instructing Group in consultation with the Borrower
taking into account the specific circumstances applicable to
any particular System or member of the Group concerned:
(a) no System Assets are transferred by any member of the
Group to any person (whether by intra-group transfer,
change in legal status or otherwise) unless all
System Assets forming part of the System concerned
are transferred on arms' length terms to the same
transferee at the same time;
(b) all System Assets relating to each System are owned
and operated by the same person which is (i) a
subsidiary of another member of the Group
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(as defined in paragraph (b) of the definition of
subsidiary contained in this Agreement whose cash
flows are controlled by such member of the Group) or
(ii) (prior to the date of completion of the System
Asset Transfer), the Holding Company or a subsidiary
of the Holding Company; and
(c) each member of the Group which is a company is a
wholly owned subsidiary of its direct holding company
(other than third party minority interests as set out
in the Group Structure Charts and each member of the
Group which is a limited partnership has the Borrower
as its sole limited partner and a directly owned
subsidiary of the Borrower, which has no assets other
than its general partnership interest in the limited
partnership as its general partner, save for (i)
those limited partnerships which have 1% of their
shares held by Holding Company and for those members
of the Group which have such minority shareholders as
are indicated in the Group Structure Charts and (ii)
any entity which becomes a member of the Group after
the date hereof as a result of an Acquisition made in
accordance with this Agreement which is a subsidiary
of another member of the Group as defined in
paragraph (b) of the definition of subsidiary
contained in this Agreement whose cash flows are
controlled by such other member of the Group.
23.7.2 The Borrower shall not, without the prior written consent of
an Instructing Group, proceed with the Multikabel Acquisition
if any member state of the European Union has taken any action
under Article 21(3) of the European Merger Control Regulation.
23.7.3 As soon as possible but in any event no later than 14 days
after the Closing Date:
(a) the Borrower and PrimaCom Netherlands Holding BV
shall ensure that the articles of association of
PrimaCom Netherlands Holding BV are amended so that
the Beneficiaries may have the right to take control
of the voting rights of PrimaCom Netherlands Holding
BV at any time after the occurrence of an Event of
Default and while it is continuing; and
(b) the Borrower shall execute and deliver a further
share pledge agreement and deed over the shares of
PrimaCom Netherlands Holding BV, which shall be on
substantially the same terms as and which shall
replace the Initial Dutch Share Pledge but shall
incorporate the transfer of voting rights referred to
in paragraph (a) above, and which shall replace the
Initial Dutch Share Pledge.
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24. EVENTS OF DEFAULT
Each of Clause 24.1 (Failure to Pay) to Clause 24.24 (Material Adverse
Change) describes circumstances which constitute an Event of Default
for the purposes of this Agreement.
24.1 FAILURE TO PAY
Any Obligor fails to pay any sum due from it under any of the Facility
Documents within two Business Days of the due date therefor, in the
currency and in the manner specified-herein.
24.2 MISREPRESENTATION
Any representation, warranty or statement other than those made in
sub-clause 20.3.17 of Clause 20.3 (Further Representations) made by the
Holding Company or any Obligor in any Facility Document or in any
notice or other document, certificate or statement delivered by it
pursuant thereto or in connection therewith is or proves to have been
incorrect or misleading in any material respect when made or deemed
repeated and the circumstances giving rise to such inaccuracy, if
capable of remedy or change, are not remedied or do not change, such
that the relevant representation would be correct and not misleading if
repeated 15 days after the earlier of (a) it being notified by the
Agent to the Borrower as having been made inaccurately and (b) the
Holding Company or the relevant Obligor becoming aware of such
inaccuracy.
24.3 COVENANTS
The Holding Company or any Obligor fails duly to perform or comply with
any of the obligations expressed to be assumed by it in Clause 21
(Information), Clause 23 (Covenants) or Clause 45 (Group Structure
Changes and Permissions) (other than in sub-clauses 21.1.2, 21.1.3 of
Clause 21 (Information) or in sub-clauses 23.1.1, 23.1.2, 23.1.4,
23.1.5, 23.1.9, 23.1.10, 23.1.11 and 23.1.13 of Clause 23 (Covenants)).
24.4 SPECIFIC COVENANTS
The Borrower fails to comply with sub-clauses 21.1.2 and 21.1.3 of
Clause 21 (Information) and such failure is not remedied within fifteen
days after the due date for delivery thereunder.
24.5 FINANCIAL COVENANTS
The financial covenants set out in Clause 22 (Financial Covenants) are
not complied with.
24.6 OTHER OBLIGATIONS
Any Obligor or the Holding Company fails duly to perform or comply with
any other obligation (for the avoidance of doubt, including those
obligations referred to in the sub-clauses contained within the
brackets in Clause 24.3 (Covenants) (except for sub-clauses 21.1.2 and
21.1.3)) expressed to be assumed by it in any Facility Document and
such failure is not remedied within twenty one days after the Agent has
given notice thereof to the relevant defaulting party.
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24.7 CROSS DEFAULT
Any indebtedness for borrowed money of the Group or of the Holding
Company exceeding EUR 2,000,000 in aggregate is not paid when due, is
declared to be or otherwise becomes due and payable prior to its
specified maturity or any creditor or creditors of any member of the
Group or of the Holding Company becomes entitled to declare any such
indebtedness for borrowed money due and payable prior to its specified
maturity, save that this clause shall not apply to any indebtedness for
borrowed money of any member of the Multikabel Group where such
indebtedness for borrowed money is Existing Multikabel Indebtedness
provided that if any such Existing Multikabel Indebtedness is
accelerated or otherwise becomes due and payable it is repaid in full
by the end of the grace period contractually provided for in respect
thereof (and the Facility may be utilised for such purpose).
24.8 WORKING CAPITAL FACILITY
Any of the events of default specified in the Working Capital Facility
or in any Senior Notes occurs or the Working Capital Facility or, as
the case may be, any Senior Notes are required to be prepaid as a
result of a change of control of the Holding Company (howsoever
described).
24.9 INSOLVENCY AND RESCHEDULING
Any Material Group Company or the Holding Company is unable or deemed
unable to pay its debts as they fall due (zahlungsunfahig oder drohende
Zahlungsunfahigkeit) or is over-indebted (uberschuldet) or commences
negotiations with any one or more of its creditors with a view to any
arrangement for the general readjustment or rescheduling of its
indebtedness; or a general assignment for the benefit of or a
composition with its creditors or a moratorium in respect of all or any
class of debts of any Material Group Company or the Holding Company is
applied for, ordered or declared. For the purpose of this Clause 24.9 a
person shall be deemed to be unable to pay its debts as they fall due
(drohende Zahlungsunfahigkeit) if so determined by such person's
auditors or any other generally recognised international firm of
auditors.
24.10 WINDING-UP
Any Material Group Company or the Holding Company takes any action or
other steps are taken or legal proceedings are started for its
winding-up, dissolution or re-organisation (save where this is for the
purpose of the Reorganisation) or for the appointment of a receiver,
preliminary receiver, administrator, administrative receiver, trustee
or similar officer of it or of any or all of its revenues and assets
(other than a solvent re-organisation on terms and conditions approved
by an Instructing Group).
24.11 RELEVANT CONTRACTS
Any event shall occur which gives grounds for belief, in the reasonable
opinion of an Instructing Group, (or any notice is given) that any of
the Relevant Contracts may be amended, suspended, cancelled, revoked,
surrendered or terminated (whether in whole or in part) and that such
event is likely to give rise to a Material Adverse Effect.
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24.12 ANALOGOUS PROCEEDINGS
There occurs, in relation to any Material Group Company or the Holding
Company, in any country or territory in which any of them carries on
business or in the jurisdiction of whose courts any part of their
respective assets is subject, any event which, in the opinion of an
Instructing Group appears in that country or territory to be equivalent
or similar to, any of those events or circumstances mentioned in Clause
24.9 (Insolvency and Rescheduling) or Clause 24.10 (Winding-up) or any
Material Group Company otherwise becomes subject in any such country or
territory, to the operation of any law relating to insolvency,
bankruptcy or liquidation.
24.13 EXECUTION OR DISTRESS
Any execution, distress, attachment or legal process is levied, made or
taken against, or an encumbrancer takes possession of, the whole or any
part of, the property, undertaking or assets of any Material Group
Company where the value of such assets is at least EUR2,000,000 and is
not discharged within 10 days or any event occurs which under the laws
of any jurisdiction would have an analogous effect.
24.14 GOVERNMENTAL INTERVENTION
By or under the authority of any government the management of any
Material Group Company is wholly or substantially displaced or the
authority of the management of any Material Group Company in the
conduct of the business of such Material Group Company is wholly or
substantially curtailed.
24.15 SIMILAR EVENTS
Any of the events set out in Clause 24.9 (Insolvency and Rescheduling),
Clause 24.10 (Winding-up) or Clause 24.12 (Analogous Proceedings) to
Clause 24.14 (Governmental Intervention) shall occur in relation to any
member of the Financial Group which is not a Material Group Company
where such event would be likely to have a Material Adverse Effect.
24.16 ILLEGALITY
At any time it is or becomes unlawful for any Obligor or the Holding
Company to perform or comply with any or all of its obligations under
the Facility Documents or the Relevant Contracts to which it is are
party or any such Facility Documents or Relevant Contracts, any of the
obligations of any Obligor or the Holding Company thereunder or any
security interests created thereby or pursuant thereto are not or cease
to be legal, valid and binding and the result would be likely to have a
Material Adverse Effect.
24.17 OWNERSHIP OF THE HOLDING COMPANY
Any person or persons being affiliates acquires directly or indirectly
50% or more of the share capital or of the voting rights of the Holding
Company.
24.18 OWNERSHIP OF THE BORROWER
The Holding Company ceases (directly or indirectly through APA) to own
the entire issued share capital of the Borrower.
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24.19 THE GROUP'S BUSINESS
Any member of the Group ceases to carry on the business it carries on
at the date hereof or enters into any unrelated business (other than as
a result of an Acquisition permitted by the terms of this Agreement).
24.20 REPUDIATION
Any Obligor or the Holding Company repudiates any of the Facility
Documents or any of the Relevant Contracts to which it is party.
24.21 CHANGE IN REGULATION OR POLICY
Any change occurs in the regulatory environment relating to, or in
stated government policy towards, the cable television and/or
telecommunications industry in (a) Germany (excluding any changes in
the public domain at the date hereof) or (b) in any other country where
any member of the Financial Group carries on its business and which, in
the reasonable opinion of an Instructing Group, might have a Material
Adverse Effect.
24.22 PROHIBITED PAYMENTS
Any amount is paid by any member of the Group to the Holding Company
which is not permitted by the Obligor Intercreditor Agreement and such
breach is not remedied within five days of such payment.
24.23 AMENDMENT OF WORKING CAPITAL FACILITY
Any amendment is made to the Working Capital Facility or to the terms
upon which any Holding Company Debt was approved by the Agent as being
in accordance with sub-clause 23.3.2(b) of Clause 23.3 (Covenants of
the Holding Company), which is materially adverse to the interests of
the Finance Parties hereunder.
24.24 MATERIAL ADVERSE CHANGE
Any other event occurs or circumstance arises which is likely to affect
materially and adversely the ability of the Holding Company or any
Obligor to perform any of its obligations under or otherwise to comply
with the terms of any of the Facility Documents or Relevant Contracts
to which it is party.
24.25 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter
whilst it is continuing, the Agent may (and, if so instructed by an
Instructing Group, shall) by written notice to the Borrower:
24.25.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable
together with accrued interest thereon and any other sums then
owed by the Borrower under the Facility Documents) or declare
all or any part of the Advances to be due and payable on
demand of the Agent; and/or
24.25.2 require the Borrower to procure that the liabilities of each
of the Banks and the Fronting Bank in respect of all the
Letter of Credit Outstandings are promptly reduced to zero
and/or provide Cash Collateral in respect thereof (whereupon
the Borrower shall do so); and/or
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24.25.3 declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each Bank shall
be reduced to zero.
24.26 ADVANCES DUE ON DEMAND
If, pursuant to Clause 24.25 (Acceleration and Cancellation), the Agent
declares all or any part of the Advances to be due and payable on
demand of the Agent, then, and at any time thereafter, the Agent may
(and, if so instructed by an Instructing Group, shall) by written
notice to the Borrower:
24.26.1 require repayment of all or such part of the Advances on such
date as it may specify in such notice (whereupon the same
shall become due and payable on such date together with
accrued interest thereon and any other sums then owed by the
Borrower under the Facility Documents) or withdraw its
declaration with effect from such date as it may specify in
such notice; and/or
24.26.2 select as the duration of any Term which begins whilst such
declaration remains in effect a period of six months or less;
and/or
24.26.3 the Term in respect of any such Advance shall, if the Agent
subsequently demands payment before the scheduled Interest
Payment Date in respect of such Advance, be deemed (except for
the purposes of Clause 25.4 (Break Costs)) to be of such
length that it ends on the date that such demand is made.
25. DEFAULT INTEREST AND INDEMNITY
25.1 DEFAULT INTEREST PERIODS
If any sum due and payable by any Obligor hereunder is not paid on the
due date therefor in accordance with the provisions of Clause 26
(Currency of Account and Payment) or if any sum due and payable by any
Obligor under any judgement of any court in connection herewith is not
paid on the date of such judgement, the period beginning on such due
date or, as the case may be, the date of such judgement and ending on
the date upon which the obligation of such Obligor to pay such sum (the
balance thereof for the time being unpaid being herein referred to as
an "UNPAID SUM") is discharged shall be divided into successive
periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which
shall (except as otherwise provided in this Clause 25) be selected by
the Agent.
25.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Term in respect thereof
at the rate per annum which is the sum from time to time of one per
cent., the Margin at such time, the Mandatory Costs Rate in respect
thereof and the relevant interbank rate on the Quotation Date therefor
PROVIDED THAT:
25.2.1 if, for any such period, the relevant interbank rate cannot be
determined, the rate of interest applicable to such Unpaid Sum
shall be the sum from time to time of one per cent., the
Margin at such time, the Mandatory Costs Rate in respect
thereof and the rate per annum determined by the Agent to be
the
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arithmetic mean (rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty second
of one per cent.) of the rates notified by each Reference Bank
to the Agent before the last day of such period to be those
which express as a percentage rate per annum the cost to it of
funding from whatever sources it may reasonably select its
portion of such Unpaid Sum for such period; and
25.2.2 if such Unpaid Sum is all or part of an Advance which became
due and payable on a day other than the last day of the Term
relating thereto, the first such period applicable thereto
shall be of a duration equal to the unexpired portion of that
Term and the rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one per
cent. the rate which would have been applicable to it had it
not so fallen due.
25.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 25.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and
shall be paid by the relevant Obligor at the end of the period by
reference to which it is calculated or on such other date or dates as
the Agent may specify by written notice to such Obligor.
25.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of an Advance or Unpaid Sum otherwise than on
the last day of the Term relating thereto, the Borrower shall pay to
the Agent on demand for account of such Bank an amount equal to the
amount (if any) by which (a) the additional interest which would have
been payable on the amount so received or recovered had it been
received or recovered on the last day of that Term thereof exceeds (b)
the amount of interest which in the opinion of the Agent would have
been payable to the Agent on the last day of that Term in respect of a
euro deposit equal to the amount so received or recovered placed by it
with a leading bank in the London interbank market for a period
starting on the third Business Day following the date of such receipt
or recovery and ending on the last day of that Term.
25.5 BORROWER'S INDEMNITY
The Borrower undertakes to indemnify:
25.5.1 each Finance Party against any cost, claim, loss, expense
(including, without limitation, legal fees) or liability
together with any VAT thereon, which any of them may sustain
or incur as a consequence of the occurrence of any Event of
Default or any default by any Obligor, the Holding Company or
APA in the performance of any of its obligations expressed to
be assumed by it in any of the Facility Documents to which it
is party;
25.5.2 each Finance Party and their respective officers, employees,
agents and delegates (together the "Indemnified Parties"),
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
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contract, tort or otherwise and whether arising at common law,
in equity or by statute which the Indemnified Party may
sustain or incur as a consequence of, or relating to, or
arising directly or indirectly out of, an Environmental Claim
made or asserted against such Indemnified Party; and
25.5.3 each Bank and the Fronting Bank against any loss it may suffer
as a result of its funding or making arrangements to fund its
portion of an Advance or its issuing or making arrangements to
issue or participate in a Letter of Credit requested by a
Borrower hereunder but not made or issued by reason of the
operation of any one or more of the provisions hereof other
than due to the gross negligence of or wilful default by the
Bank or the Fronting Bank (as the case may be) in the
performance of its obligations hereunder.
25.6 Any Unpaid Sum shall (for the purposes of this Clause 25 and Clause
17.1) be treated as an Advance and accordingly in this Clause 25 and
Clause 17 the term "Advance" and "advance" includes any Unpaid Sum and
"Term", in relation to an Unpaid Sum, includes each such period
relating thereto as is mentioned in Clause 25.1 (Default Interest
Periods).
26. CURRENCY OF ACCOUNT AND PAYMENT
26.1 The euro is the currency of account and payment for each and every sum
at any time due from any Obligor hereunder PROVIDED THAT:
26.1.1 each repayment of an Unpaid Sum or a part thereof shall be
made in the currency in which such Unpaid Sum is denominated
at the time of that repayment;
26.1.2 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
26.1.3 each payment pursuant to Clause 15.2 (Tax Indemnity), Clause
17.1 (Increased Costs) or Clause 25.5 (Borrower's Indemnity)
shall be made in the currency specified by the party claiming
thereunder;
26.1.4 each payment in respect of a Letter of Credit (including any
Cash Collateral in respect of a Letter of Credit) shall be
made in the currency in which such Letter of Credit is
denominated;
26.1.5 each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated; and
26.1.6 any amount expressed to be payable in a currency other than
euro shall be paid in that other currency.
26.2 CURRENCY INDEMNITY
If any sum due from any Obligor under any of the Facility Documents or
any order or judgement given or made in relation hereto has to be
converted from the currency (the "FIRST CURRENCY") in which the same is
payable hereunder or under such order or
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judgement into another currency (the "SECOND CURRENCY") for the
purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgement in any court or
other tribunal or (c) enforcing any order or judgement given or
made in relation hereto, the Borrower shall indemnify and hold
harmless each of the persons to whom such sum is duefrom and against
any loss suffered as a result of any discrepancy 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 such person 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, judgement, claim or proof.
27. PAYMENTS
27.1 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by
any of the Obligors or any of the Banks hereunder, such Obligor or, as
the case may be, such Bank shall make the same available to the Agent:
27.1.1 where such amount is denominated in euros, by payment in euros
and in immediately available, freely transferable, cleared
funds to the Agent's account number 00000000 in favour of
Chase Manhattan Bank AG with Landeszentral bank, Frankfurt,
attention X. Xxxxx re PrimaCom Facility Agreement (or such
other account or bank as the Agent may have specified for this
purpose); or
27.1.2 where such amount is denominated in dollars, by payment in
dollars and in immediately available, freely transferable,
cleared funds to the Agent's account number 001-1-30-3906 9 in
favour of Chase Manhattan Bank AG with The Chase Manhattan
Bank, New York, attention X. Xxxxx (re PrimaCom Facility
Agreement (or such other account or bank as the Agent may have
specified for this purpose).
27.2 ALTERNATIVE ARRANGEMENTS
If, at any time, it shall become impracticable (by reason of any action
of any governmental authority or any change in law, exchange control
regulations or any similar event) for any of the Obligors to make any
payments hereunder in the manner specified in Clause 27.1 (Payments to
the Agent), then such Obligor may agree with each or any of the Banks
alternative arrangements for the payment direct to such Bank and the
Fronting Bank of amounts due to such Bank or the Fronting Bank
hereunder PROVIDED THAT, in the absence of any such agreement with any
Bank or the Fronting Bank, such Obligor shall be obliged to make all
payments due to such Bank or the Fronting Bank in the manner specified
herein. Upon reaching such agreement such Obligor and such Bank or the
Fronting Bank shall immediately notify the Agent thereof and shall
thereafter promptly notify the Agent of all payments made direct to
such Bank or the Fronting Bank.
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27.3 PAYMENTS BY THE AGENT
Save as otherwise provided herein, each payment received by the Agent
for the account of another person pursuant to Clause 27.1 (Payments to
the Agent) shall:
27.3.1 in the case of a payment received for the account of the
Borrower, be made available by the Agent to the Borrower by
application:
(a) first, in or towards payment the same day of any
amount then due from the Borrower hereunder to the
person from whom the amount was so received; and
(b) secondly, in or towards payment the same day to the
account of the Borrower with such Bank in Frankfurt
or New York City, as appropriate, as the Borrower
shall have previously notified to the Agent for this
purpose; and
27.3.2 in the case of any other payment, be made available by the
Agent to the person for whose account such payment was
received (in the case of a Bank or the Fronting Bank, for the
account of the Facility Office) for value the same day by
transfer to such account of such person with such bank in
Frankfurt or New York City, as appropriate, as such person
shall have previously notified to the Agent.
27.4 NO SET-OFF
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall
be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
27.5 CLAWBACK
Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to
that other person until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such
sum, then the person to whom such sum was so made available shall on
request refund the same to the Agent together with an amount sufficient
to indemnify the Agent against any cost or loss it may have suffered or
incurred by reason of its having paid out such sum prior to its having
received such sum.
27.6 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment the Agent
may apply the amount received towards the obligations of the Obligors
under this Agreement in the following order:
27.6.1 FIRST, in or towards payment of any unpaid costs and expenses
of the Agent due hereunder;
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27.6.2 SECONDLY, in or towards payment of any demand made by the
Fronting Bank in respect of a payment made or to be made by it
under a Letter of Credit due but unpaid;
27.6.3 THIRDLY, in or towards payment pro rata of any accrued
interest, letter of credit commission or fronting bank fee
payable to any Bank or the Fronting Bank due but unpaid;
27.6.4 FOURTHLY, in or towards payment pro rata of any principal or
Letter of Credit Outstandings due but unpaid; and
27.6.5 FIFTHLY, in or towards payment pro rata of any other sum due
but unpaid.
27.7 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 27.6 (Partial Payments)
shall override any appropriation made by the Obligor to which the
partial payment relates but the order set out in sub-clauses 27.6.2,
27.6..3 and 27.6.4 of Clause 27.6 (Partial Payments) may be varied if
agreed by all the Banks.
27.8 BUSINESS DAYS
27.8.1 Any payment hereunder which is due to be made on a day that is
not a Business Day shall be made on the next Business Day in
the same calendar month (if there is one) or the preceding
Business Day (if there is not).
27.8.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
28. SET-OFF
Each Obligor authorises each Bank, the Fronting Bank and the Overdraft
Bank to apply any credit balance to which such Obligor is entitled on
any account held by such Obligor with that Bank, the Fronting Bank or
the Overdraft Bank in satisfaction of any sum due and payable from that
Obligor to such Bank, the Fronting Bank or the Overdraft Bank but
unpaid; for this purpose, each Bank, the Fronting Bank and the
Overdraft Bank is authorised to purchase at prevailing rates of
exchange with the moneys standing to the credit of any such account
such other currencies as may be necessary to effect such application.
Neither any Bank, the Fronting Bank nor the Overdraft Bank shall be
obliged to exercise any right given to it by this Clause 28. Any Bank,
the Fronting Bank or the Overdraft Bank which exercises such rights
will promptly notify the relevant Obligor of such application.
29. REDISTRIBUTION OF PAYMENTS
29.1 PAYMENTS TO BANKS
If, at any time, any Bank (a "RECOVERING BANK") applies any receipt or
recovery (whether by payment, the exercise of a right of set-off or
combination of accounts or otherwise) from an Obligor to a payment due
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under this Agreement and such amount is received or recovered other
than in accordance with Clause 27 (Payments), then such Recovering Bank
shall:
29.1.1 notify the Agent of such receipt or recovery;
29.1.2 at the request of the Agent promptly pay to the Agent an
amount (the "SHARING PAYMENT") equal to such receipt or
recovery less any amount which the Agent determines may be
retained by such Recovering Bank as its share of any payment
to be made in accordance with Clause 27.6 (Partial Payments).
29.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if such amount had been
received by it from such Obligor and shall distribute it between the
Finance Parties (other than the Recovering Bank) in accordance with
Clause 27.6 (Partial Payments).
29.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 29.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
29.4 REPAYABLE RECOVERIES
If any sum (a "relevant sum") received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
29.4.1 each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 29.1 shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such relevant
sum; and
29.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing party for the amount so
reimbursed.
29.5 EXCEPTIONS
This Clause 29 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
29.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and,
as a result thereof or in connection therewith, receives any amount,
then such Bank shall not be required to share any portion of such
amount with any Bank which has the legal right to, but does not, join
in such action or commence and diligently prosecute a separate action
to enforce its rights in another court.
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30. COMMITMENT COMMISSION AND FEES
30.1 COMMITMENT COMMISSION
The Borrower shall pay to the Agent for account of each Bank or, as the
case may be, the Overdraft Bank a commitment commission on:
30.1.1 in respect of each Bank, the amount of such Bank's Available
Commitment from day to day during the period commencing on the
Closing Date and ending on the Final Maturity Date; and
30.1.2 in respect of the Overdraft Bank, the unutilised portion of
the Overdraft Facility from day to day during the period
commencing on the Closing Date and ending on the Final
Maturity Date,
in each case, such commitment commission to be calculated at the rate
of 0.50 per cent. per annum and payable in arrear on the last day of
each successive period of three months which ends during such period
and on the Final Maturity Date.
30.2 ARRANGEMENT FEES
The Borrower shall pay to Chase Manhattan plc as coordinating arranger
the fees specified in the letter dated 11 August from inter alia the
Lead Arrangers to the Borrower at the times, and in the amounts,
specified in such letter.
30.3 AGENCY FEE
The Borrower shall pay to the Agent for its own account the fees
referred to in the agency fee letter dated 11 August from inter alia
the Agent to the Borrower at the times, and in the amounts, specified
in such letter.
31. COSTS AND EXPENSES
31.1 TRANSACTION EXPENSES
The Borrower shall, from time to time on demand of the Agent, reimburse
each of the Agent and the Arrangers for all reasonable costs and
expenses (including, without limitation, legal fees as agreed) together
with any VAT thereon incurred by it in connection with the negotiation,
syndication, preparation and execution of the Facility Documents
(including, without limiting the generality of the foregoing, in
connection with any amendments, supplements, waivers and consents
requested by any party thereto) and the completion of the transactions
therein contemplated (including the accession and/or secession of
Obligors). Any claims by the Agent or the Arrangers made upon the
Borrower pursuant to this Clause shall be accompanied by appropriate
invoices.
31.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand of the Agent, reimburse
the Finance Parties for all costs and expenses (including, without
limitation, legal fees) together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the
rights of the Finance Parties under the Facility Documents including,
without limitation any such costs and expenses incurred as a result of
the implementation or operation of Clause 45 (Group Structure Changes
and Permissions).
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31.3 STAMP TAXES
The Borrower shall pay all stamp, registration and other taxes to which
the Facility Documents or any judgement given in connection therewith
is or at any time may be subject and shall, from time to time on demand
of the Agent, indemnify the Finance Parties against any liabilities,
costs, claims and expenses resulting from any failure to pay or any
delay in paying any such tax.
31.4 BANKS' LIABILITIES FOR COSTS
If the Borrower fails to perform any of its obligations under this
Clause 31, each Bank shall, in its Proportion, indemnify each of the
Agent and the Arrangers against any loss incurred by any of them as a
result of such failure and the Borrower shall forthwith reimburse each
Bank for any payment made by it pursuant to this Clause 31.4.
32. GUARANTEE
32.1 GUARANTEE AND INDEMNITY
Each Guarantor hereby irrevocably and unconditionally:
32.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all the terms, conditions and
covenants on the part of the Borrower contained in the
Facility Documents and agrees to pay to the Agent from time to
time upon first written demand any and every sum or sums of
money which the Borrower shall at any time be liable to pay to
each Finance Party under or pursuant to the Facility Documents
and which has become due and payable but the Agent confirms
have not been paid at the time such demand is made; and
32.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand by the Agent from and against any
loss incurred by each Finance Party as a result of any of the
obligations of the Borrower under or pursuant to the Facility
Documents being or becoming void, voidable, unenforceable or
ineffective as against the Borrower for any reason whatsoever,
whether or not known to the Finance Parties or any of them or
any other person, the amount of such loss being the amount
which the person or persons suffering it would otherwise have
been entitled to recover from the Borrower.
32.2 CONDITIONS
32.2.1 In respect of a Guarantor incorporated or established in
Germany, the Banks will repay any monies received by enforcing
the Guarantee if and to the extent such a Guarantor
demonstrates to the reasonable satisfaction of the Agent that
enforcing the Guarantee and repaying the guaranteed
Obligations out of the enforcement proceeds would result in a
decrease of assets necessary to maintain the relevant
Guarantor's, or, in the case of a limited partnership, the
Guarantor's general partner's registered share capital
(Stammkapital).
When calculating the assets necessary to maintain the
registered share capital, the following amounts shall not be
taken into account:
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(a) all capital increases made after execution of this
agreement not in accordance with the Facility
Documents;
(b) all liabilities vis-a-vis other Group companies;
(c) all loans or similar obligations against third
parties; and
(d) all other liabilities that have been entered into in
violation of any provisions of the Facility
Documents.
In addition, where such Guarantor does not have sufficient
assets to maintain its, or its general partner's registered
share capital, the Guarantor shall realise (to the extent
legally permitted and PROVIDED THAT such asset is not
necessary for continuing the Guarantor's business
(betriebsnotwendig)) any and all of its assets (by disposal
thereof on arms length terms for full market value) which are
shown to have a book value (Buchwert) in such Guarantor's most
recent balance sheet that is significantly lower than the
market value of such asset or assets.
32.2.2 In respect of a Guarantor incorporated in the Netherlands
which is a member of the Multikabel Group, the obligations of
such Guarantor in this Clause 32 (Guarantee) shall not extend
to (and accordingly no such Guarantee shall guarantee the
repayment of) any indebtedness of the Borrower outstanding
under any Multikabel Acquisition Advance.
33. PRESERVATION OF RIGHTS
33.1 ADDITIONAL SECURITY
The obligations of each of the Guarantors herein contained shall be in
addition to and independent of every other security which the Finance
Parties or any of them may at any time hold in respect of any of the
Borrower's obligations under the Facility Documents.
33.2 CONTINUING OBLIGATIONS
The obligations of the Guarantors herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever, and in particular but without
limitation, shall not be considered satisfied by any intermediate
payment or satisfaction of all or any of the obligations of the
Borrower under the Facility Documents and shall continue in full force
and effect until final payment in full of all amounts owing by the
Borrower thereunder and total satisfaction of all the Borrower's actual
and contingent obligations thereunder.
33.3 OBLIGATIONS NOT DISCHARGED
Neither the obligations of the Guarantors herein contained nor the
rights, powers and remedies conferred in respect of the Guarantors upon
the Finance Parties or any of them by the Facility Documents or by law
shall be discharged, impaired or otherwise affected by:
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33.3.1 the winding-up, dissolution, administration or re-organisation
of the Borrower or any other person or any change in its
status, function, control or ownership;
33.3.2 any of the obligations of the Borrower under the Facility
Documents or under any other security taken in respect of any
of its obligations thereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
33.3.3 time or other indulgence being granted or agreed to be granted
to the Borrower in respect of its obligations under any
Facility Document;
33.3.4 any amendment to, or any variation, waiver or release of, any
obligation of the Borrower or any other person under any
Facility Document;
33.3.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any of the Borrower's obligations under any Facility
Document;
33.3.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
encumbrance taken in respect of any of the Borrower's
obligations under any Facility Document; or
33.3.7 any other act, event or omission which, but for this Clause
33.3, might operate to discharge, impair or otherwise affect
any of the obligations of any of the Guarantors herein
contained or any of the rights, powers or remedies conferred
upon the Finance Parties or any of them by the Facility
Documents or any of them or by law.
33.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between any Obligor and the Finance Parties
or any of them shall be conditional upon no security or payment to the
Finance Parties or any of them by any such Obligor or any other person
on behalf of any such Obligor being avoided or reduced by virtue of any
laws relating to bankruptcy, insolvency, liquidation or similar laws of
general application for the time being in force and, if any such
security or payment is so avoided or reduced, the Finance Parties shall
each be entitled to recover the value or amount of such security or
payment from any such Obligor subsequently as if such settlement or
discharge had not occurred.
33.5 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of the Guarantors or
any of them by any of the Facility Documents or by law:
33.5.1 to make any demand of the Borrower or any other Obligor;
33.5.2 to take any action or obtain judgement in any court against
the Borrower or any other Obligor;
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33.5.3 to make or file any claim or proof in a winding-up or
dissolution of the Borrower or any other Obligor; or
33.5.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of the Borrower or any other
Obligor under any Facility Document.
33.6 DEFERRAL OF GUARANTOR'S RIGHTS
Each of the Guarantors agrees that, so long as any amounts are or may
be owed by the Borrower under any Facility Document or the Borrower is
under any actual or contingent obligations under any Facility Document
it shall not exercise any rights which it may at any time have by
reason of the performance by it of its obligations under the Facility
Documents:
33.6.1 to be indemnified by the Borrower or any other Obligor; and/or
33.6.2 to claim any contribution from any other guarantor of the
Borrower's obligations thereunder; and/or
33.6.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Facility Documents or any of them or of any other
security (including the guarantee entered into by any other
Guarantor) taken pursuant to, or in connection with the
Facility Documents or any of them by all or any of the Finance
Parties.
33.7 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Finance Party by virtue
of Clause 32.1 (Guarantee and Indemnity) may, in that Finance Party's
discretion, be credited to an interest bearing suspense or impersonal
account and may be held in such account for so long as such Finance
Party thinks fit pending the application from time to time (as such
Finance Party may think fit) of such moneys in or towards the payment
and discharge of any amounts owing by a Guarantor to such Bank
hereunder until the amount held in such account would be sufficient to
discharge all amounts due and payable under the Facility Documents.
34. THE AGENT, THE ARRANGERS, THE FRONTING BANK AND THE BANKS
34.1 APPOINTMENT OF THE AGENT
The Arrangers, the Overdraft Bank, the Fronting Bank and each of the
Banks hereby appoint the Agent to act as its agent in connection with
the Facility Documents and hereby acknowledges that the Security
Trustee will act for it and on its behalf in connection with the
Security Documents in accordance with the terms of the Security Trust
Agreement and authorises the Agent to exercise such rights, powers,
authorities and discretions as are specifically delegated to the Agent
by the terms hereof together with all such rights, powers, authorities
and discretions as are reasonably incidental thereto.
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The Agent and the Security Trustee shall be released from the
restrictions set out in Section 181 of the German Civil Code. The Agent
and the Security Trustee may grant such substitute powers of attorney
and release any sub-agent from such restriction and revoke that
substitute power of attorney.
34.2 AGENT'S DISCRETIONS
The Agent may:
34.2.1 assume that:
(a) any representation made by any Obligor or the Holding
Company in connection with any of the Facility
Documents is true;
(b) no Event of Default or Potential Event of Default has
occurred;
(c) no Obligor nor the Holding Company is in breach of or
default under its obligations under any of the
Facility Documents or Relevant Contracts; and
(d) any right, power, authority or discretion vested
herein upon an Instructing Group, the Banks, the
Fronting Bank, the Overdraft Bank or any other person
or group of persons has not been exercised,
unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto;
34.2.2 assume that the Facility Office of each Bank is that
identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it
is a party as Transferee) until it has received from such Bank
a notice designating some other office of such Bank to replace
its Facility Office and act upon any such notice until the
same is superseded by a further such notice;
34.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
34.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any of the Obligors or
the Holding Company upon a certificate signed by or on behalf
of such Obligor or the Holding Company;
34.2.5 rely upon any communication or document believed by it to be
genuine;
34.2.6 refrain from exercising any right, power or discretion vested
in it as agent under any of the Facility Documents unless and
until instructed by an Instructing Group 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
34.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
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arising out of or in connection with any of the Facility
Documents until it shall have received such security as it may
require (whether by way of payment in advance or otherwise)
for all costs, claims, losses, expenses (including, without
limitation, legal fees) and liabilities together with any VAT
thereon which it will or may expend or incur in complying with
such instructions.
34.3 AGENT'S OBLIGATIONS
The Agent shall:
34.3.1 promptly inform each Bank, the Fronting Bank, the Overdraft
Bank and the Security Trustee of the contents of any notice or
document received by it in its capacity as Agent from any
member of the Group under any of the Facility Documents;
34.3.2 promptly notify each Bank, the Fronting Bank, the Overdraft
Bank and the Security Trustee of the occurrence of any Event
of Default or any default by any of the Obligors or the
Holding Company in the due performance of or compliance with
its obligations under any of the Facility Documents of which
the Agent has notice from any other party hereto;
34.3.3 save as otherwise provided herein, act as agent under the
Facility Documents in accordance with any instructions given
to it by an Instructing Group, which instructions shall be
binding on the Arrangers, the Fronting Bank, the Overdraft
Bank and all of the Banks; and
34.3.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent under the Facility Documents.
The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
34.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Arrangers shall:
34.4.1 be bound to enquire as to:
(a) whether or not any representation made by any of the
Obligors or the Holding Company in connection with
any of the Facility Documents is true;
(b) the occurrence or otherwise of any Event of Default
or Potential Event of Default;
(c) the performance by any Obligor or the Holding Company
of its obligations under any of the Facility
Documents; or
(d) any breach of or default by any Obligor or the
Holding Company of its obligations under any of the
Facility Documents;
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34.4.2 be bound to account to any Bank or to the Overdraft Bank for
any sum or the profit element of any sum received by it for
its own account;
34.4.3 be bound to disclose to any other person any information
relating to any member of the Group if (i) (save where such
information relates to an Event of Default or Potential Event
of Default) such person, on providing such information,
expressly stated to the Agent or as the case may be, the
Arrangers, that such information was confidential, or (ii)
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;
34.4.4 be under any obligations other than those for which express
provision is made in the Facility Documents to which it is
party; or
34.4.5 be or be deemed to be a fiduciary to any other party, to any
Facility Document.
34.5 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent and each of the Arrangers against any and
all costs, claims, losses, expenses (including, without limitation,
legal fees) and liabilities (save to the extent that such costs,
claims, losses, expenses or liabilities are recovered to the
satisfaction of the Agent from the Borrowers) together with any VAT
thereon which any of them may incur, otherwise than by reason of its
own gross negligence or wilful misconduct, in acting in their
respective capacities as agent, or joint arrangers under any of the
Facility Documents.
34.6 EXCLUSION OF LIABILITIES
Neither the Agent nor the Arrangers nor any of them accepts any
responsibility for the accuracy and/or completeness of the Information
Memorandum or any other information supplied by the Agent or the
Arrangers or any member of the Group in connection with the Facility
Documents or the Relevant Contracts or for the legality, validity,
effectiveness, adequacy or enforceability of any of the Facility
Documents or the Relevant Contracts and neither the Agent nor the
Arrangers nor any of them shall be under any liability as a result of
taking or omitting to take any action in relation to any of the
Facility Documents, save in the case of gross negligence or wilful
misconduct.
34.7 NO ACTIONS
Each of the Banks, the Fronting Bank and the Overdraft Bank agrees that
it will not assert or seek to assert against any director, officer or
employee of the Agent or any of the Arrangers any claim it might have
against any of them in respect of the matters referred to in Clause
34.6 (Exclusion of Liabilities).
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34.8 BUSINESS WITH THE FINANCIAL GROUP
The Agent and each of the Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Financial Group.
34.9 REMOVAL OR RESIGNATION OF AGENT
An Instructing Group may remove the Agent from its appointment
hereunder as agent at any time by giving not less than thirty days
prior written notice to that effect to each of the other parties
hereto, or the Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than thirty
days' prior written notice to that effect to each of the other parties
hereto PROVIDED THAT no such removal or resignation shall be effective
until a successor for the Agent is appointed in accordance with the
succeeding provisions of this Clause 34.
34.10 SUCCESSOR AGENT
If an Instructing Group removes the Agent as agent or the Agent gives
notice of its resignation in either case pursuant to Clause 34.9
(Removal or Resignation of Agent), then any reputable and experienced
bank or other financial institution may be appointed as a successor to
the Agent by an Instructing Group with the consent of the Borrower
(such consent not to be unreasonably withheld or delayed) during the
period of such notice but, if no such successor is so appointed, the
Agent may appoint such a successor itself.
34.11 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
34.10 (Successor Agent), then (a) the retiring Agent shall be
discharged from any further obligation under the Facility Documents but
shall remain entitled to the benefit of the provisions of this Clause
34 and (b) its successor and each of the other parties hereto shall
have the same rights and obligations amongst themselves as they would
have had if such successor had been an original party to the Facility
Documents.
34.12 OWN RESPONSIBILITY
It is understood and agreed by each Bank, the Fronting Bank and the
Overdraft Bank that it has itself been, and will continue to be, solely
responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness,
condition, affairs, status and nature of each member of the Financial
Group, the Multikabel Acquisition and each proposed Acquisition and,
accordingly, each Bank, the Fronting Bank and the Overdraft Bank
warrants to the Agent and the Arrangers that it has not relied on and
will not hereafter rely on the Agent and the Arrangers nor any of them:
34.12.1 to check or enquire on its behalf into the adequacy, accuracy
or completeness of the Information Memorandum or any other
information provided by any member of the Financial Group in
connection with the Facility Documents or the transactions
therein contemplated (whether or not such information has been
or is hereafter circulated to such Bank, the Fronting Bank or
the
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Overdraft Bank by the Agent and the Arrangers or any of them)
or in connection with the Multikabel Acquisition or any
proposed Acquisition; or
34.12.2 to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of any member of the Financial Group.
34.13 AGENCY DIVISION SEPARATE
In acting as Agent for the Arrangers, the Fronting Bank, the Overdraft
Bank and the Banks, the agency division of the Agent shall be treated
as a separate entity from any other of its divisions or departments
and, notwithstanding the foregoing provisions of this Clause 34, in the
event that the Agent should act for any member of the Financial Group
in any capacity in relation to any other matter, any information given
by any member of the Financial Group to the Agent in such other
capacity may be treated as confidential by the Agent.
34.14 DELEGATION
The Agent may delegate to any subsidiary of The Chase Manhattan
Corporation or its successor from time to time all or any of the
rights, powers, authorities and discretions vested in it hereunder and
the performance of its duties in accordance with, and such delegation
may be made upon such terms and subject to, such conditions (including
the power to sub-delegate) and subject to such regulations as the Agent
may think fit and any reference in Clause 25.5 (Borrower's Indemnity),
29 (Redistribution of Payments), 30 (Commitment Commission and Fees),
31 (Costs and Expenses) or 32 (Guarantee) to the Agent shall be deemed
also to refer to any such subsidiary or its successor.
34.15 BANKS' MANDATORY COST DETAILS
Each Bank will supply the Agent with such information and in such
detail as the Agent may require in order to calculate the Mandatory
Cost Rate in accordance with Schedule 15 (Mandatory Costs).
35. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors, Transferees and
permitted assigns.
36. ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
None of the Obligors nor the Holding Company shall be entitled to
assign or transfer all or any of its rights, benefits and obligations
under the Facility Documents.
37. ASSIGNMENTS AND TRANSFERS BY BANKS
37.1 ASSIGNMENTS AND TRANSFERS BY BANKS
Any Bank may, at any time, assign all or any of its rights and benefits
under the Facility Documents or transfer in accordance with Clause 37.3
(Transfers by Banks) all or any of its rights, benefits and obligations
under the Facility Documents, PROVIDED THAT (a) any such assignment or
transfer shall be in a minimum amount of EUR 5,000,000 (or in relation
to Letters of Credit its equivalent in dollars) or, if less,
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the whole amount of such Bank's Commitment and (b) the prior written
consent (such consent not to be unreasonably withheld) of the Fronting
Bank has been obtained.
37.2 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Facility Documents in accordance with Clause 37.1 (Assignments and
Transfers by Banks), then, unless and until the assignee has agreed
with each other Finance Party that it shall be under the same
obligations towards each of them as it would have been under if it had
been an original party thereto as a Bank, the Finance Parties shall not
be obliged to recognise such assignee as having the rights against each
of them which it would have had if it had been such a party thereto.
37.3 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations under the Facility Documents as contemplated in
Clause 37.1 (Assignments and Transfers by Banks), then such transfer
may be effected by the delivery to the Agent of a duly completed and
duly executed Transfer Certificate in which event, on the later of the
Transfer Date specified in such Transfer Certificate and the fifth
Business Day after (or such earlier Business Day endorsed by the Agent
on such Transfer Certificate falling on or after) the date of delivery
of such Transfer Certificate to the Agent:
37.3.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights under the Facility
Documents to the Transferee they shall be so assigned;
37.3.2 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its obligations under or in respect
of the Facility Documents, each Obligor, the Holding Company
and such Bank shall be released from further obligations to
each other under or in respect of the Facility Documents (such
obligations being referred to in this Clause 37 as "discharged
obligations");
37.3.3 each of the Obligors, the Holding Company and the Transferee
party thereto shall assume obligations towards one another
and/or acquire rights against one another which differ from
such discharged rights and obligations only insofar as the
Obligors, the Holding Company and such Transferee have assumed
and/or acquired the same in place of the Obligors, the Holding
Company and such Bank; and
37.3.4 such Transferee and the other Finance Parties shall acquire
the same rights and benefits and assume the same obligations
between themselves as they would have acquired and assumed had
such Transferee been an original party to any of the Facility
Documents as a Bank or as a beneficiary thereof with the
rights assigned to it and/or obligations assumed by it as a
result of such assignment and transfer including, by the
execution of such Transfer Certificate, the Security Trust
Agreement and the Security Documents.
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37.4 TRANSFER FEES
On the date upon which a transfer takes effect pursuant to Clause 37.3
(Transfers by Banks), the Transferee in respect of such transfer shall
pay to the Agent for its own account a transfer fee of EUR 1500.
37.5 CONDITIONS
The rights conferred on the Banks by this Clause 37 shall be subject to
the following provisos:
37.5.1 any assignee or Transferee shall be a bank or other financial
institution;
37.5.2 no Obligor shall be obliged by reason of any such assignment
or transfer to make any payment hereunder otherwise than in
accordance with Clause 27.1 (Payments to the Agent); and
37.5.3 an assignee or Transferee shall not be entitled to receive any
payment under Clause 15 (Taxes) or Clause 17.1 (Increased
Costs) save to the extent that, at the time of such assignment
or transfer, an amount would have been payable hereunder to
the relevant assignor or Transferor in respect of that part of
its rights and benefits assigned or transferred.
38. DISCLOSURE OF INFORMATION
Any Bank may disclose to any actual or potential assignee or Transferee
or to any person who may otherwise enter into contractual relations
with such Bank in relation to this Agreement such information about
members of the Financial Group as such Bank shall consider appropriate
subject to, where such information is confidential or of a proprietary
nature, obtaining confirmation, by obtaining an appropriate written
confidentiality undertaking from such person, that such person will
hold, subject to the provisions hereof, such information on a
confidential basis.
39. SUB-PARTICIPATION
Each Bank may enter into sub-participation arrangements in relation to
all or any part of its rights and obligations under the Facility
Documents or any of them with any person (a "SUB-PARTICIPANT") without
the consent of any party PROVIDED THAT following the entering into of
such sub-participation arrangements such Bank continues to exercise its
rights and obligations under the Facility Documents without reference
to the Sub-Participant save in the case of:
39.1.1 any proposed waiver of an Event of Default arising as a result
of the late payment of any sum under this Agreement;
39.1.2 any proposed extension of the due date for payment of any sum
under this Agreement;
39.1.3 any proposed reduction in the Margin, commitment fee or Letter
of Credit Commission; and
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39.1.4 any proposed release of any encumbrance created pursuant to
any Security Document.
40. CALCULATIONS AND EVIDENCE OF DEBT
40.1 BASIS OF ACCRUAL
Interest, commitment commission and Letter of Credit Commission shall
accrue from day to day and shall be calculated on the basis of a year
of 360 days and the actual number of days elapsed or, in any case where
the practice in the London Interbank Market differs, in accordance with
that market practice.
40.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent.
40.3 EVIDENCE OF DEBT
Each Bank, the Fronting Bank and the Overdraft Bank shall maintain in
accordance with its usual practice accounts evidencing the amounts from
time to time lent by and owing to it hereunder and its L/C Proportion
of any Letter of Credit issued.
40.4 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of any Advance made or arising
hereunder, and the face amount of any Letter of Credit issued and each
Bank's share therein, (b) the amount of all principal, interest and
other sums due or to become due from any of the Obligors to any of the
Banks hereunder and each Bank's share therein and (c) the amount of any
sum received or recovered by the Agent hereunder and each Bank's share
therein.
40.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 40.3 (Evidence of Debt) and Clause 40.4 (Control Accounts) shall
be prima facie evidence of the existence and amounts of the obligations
of the Obligors therein recorded.
40.6 CERTIFICATE OF BANKS
A certificate of a Bank or the Overdraft Bank as to (a) the amount by
which a sum payable to it hereunder is to be increased under Clause 15
(Tax Gross-up), (b) the amount for the time being required to indemnify
it against any such cost, payment or liability as is mentioned in
Clause 15.2 (Tax Indemnity), Clause 17.1 (Increased Costs) or Clause
25.2 (Borrower's Indemnity) or (c) the amount of any credit, relief,
remission or repayment as is mentioned in Clause 16.3 (Tax Credit
Payment) or Clause 16.4 (Tax Credit Clawback) shall be prima facie
evidence for the purposes of this Agreement.
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40.7 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from an
Obligor hereunder or the amount which, but for any of the obligations
of such Obligor hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from such
Obligor hereunder shall, in the absence of manifest error, be prima
facie evidence for the purposes of Clause 32 (Guarantee).
41. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Finance Parties or any of them, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and remedies
herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
42. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, (i)
neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby and (ii) the relevant provision shall be
deemed replaced with a new provision which reflects as closely as
possible the purpose of the parties and which is legal, valid and
enforceable under the law of the relevant jurisdiction.
43. NOTICES
43.1 COMMUNICATIONS IN WRITING
Each communication to be made hereunder shall, unless otherwise stated,
be made in writing by telefax, letter or electronic mail.
43.2 DELIVERY
Any communication or document be made or to the extent practicable
delivered by one person to another pursuant to this Agreement shall
(unless that other person has by fifteen days' written notice to the
Agent specified another address) be made or delivered to that other
person at the address identified with its signature below (or, in the
case of a Transferee, at the end of the Transfer Certificate to which
it is a party as Transferee) or, in relation to the Obligors or the
Holding Company, as notified in writing to the Agent and shall be
deemed to have been made or delivered when despatched (in the case of
any communication made by telefax or electronic mail with appropriate
acknowledgement of message transfer received by the sender) or (in the
case of any communication made by letter) when left at that address or
(as the case may be) ten days after being deposited in the post postage
prepaid in an envelope addressed to it at that address PROVIDED THAT
any communication or document to be made or delivered to the Agent
shall be effective only when received by the Agent and then only if the
same is expressly marked for the attention of the department or officer
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identified with the Agent's signature below (or such other department
or officer as the Agent shall from time to time specify for this
purpose).
43.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true
and accurate translation thereof.
43.4 ADDRESSES
Any communication or document to be made or delivered pursuant to this
Agreement shall (unless the recipient of such communication or document
has, by fifteen days' written notice to the Agent, specified another
address or fax number) be made or delivered to the address or fax
number:
43.4.1 in the case of each Obligor, of the Borrower;
43.4.2 in the case of the Agent, identified with its name below;
43.4.3 in the case of each Bank, notified in writing to the Agent
prior to the date hereof (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as
Transferee); and
43.4.4 in the case of each Additional Guarantor, in the relevant
Guarantor Accession Memorandum,
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 43.4 at any time.
44. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
45. GROUP STRUCTURE CHANGES AND PERMISSIONS
45.1 ADDITIONAL GUARANTORS
Without prejudice to the requirements of any other provision of any
Facility Document but subject always to the requirements and
application of any applicable law:
45.1.1 if any person becomes a member of the Group, the Borrower
shall procure that within 14 days of such person becoming a
Group member (to the extent permitted by applicable law) such
Group member delivers to the Agent a Guarantor Accession
Memorandum duly executed by such person together with the
documents set out in Schedule 8 (Documents to Accompany
Guarantor Accession Memorandum) all in form and substance
satisfactory to the Agent;
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45.1.2 if any member of the Group acquires (whether pursuant to an
Acquisition or an intra-Group transfer) any shares or a
partnership interest in any person or any assets then the
Borrower shall procure that (to the extent permitted by
applicable law) such member of the Group and, where the
Holding Company holds 1% of the shares in such person, the
Holding Company executes encumbrances on substantially the
same terms as the appropriate Share Pledges and procures that
such newly acquired entity (to the extent permitted by
applicable law) grants encumbrances upon the terms of the
relevant Security Documents, and provides the Agent with such
documents and evidence (including legal opinions) as it may
require that such have been duly executed and delivered by
such person and are legal, valid, binding and enforceable in
accordance with their terms; and
45.1.3 the Borrower shall ensure that all relevant Relevant Contracts
and Necessary Authorisations are, as the case may be, obtained
by the new Group member or remain in full force and effect in
respect of all relevant assets (save, in relation to the
Relevant Contracts, to any extent which is not likely to have
a Material Adverse Effect) and the relevant transferee,
successor or assignee of any shares, partnership interest or
asset shall provide such evidence regarding such matters to
the Agent as the Agent may reasonably require.
45.2 ADDITIONAL SECURITY
Subject always to the requirements and application of any applicable
law the Borrower shall procure that:
45.2.1 any member of the Group which is not an Operating Company
which becomes an Operating Company and any company which
becomes a member of the Group and is an Operating Company
promptly executes (to the extent permitted by applicable law)
encumbrances on substantially identical terms to the Security
Documents; and
45.2.2 any Obligor which opens a bank account permitted by the terms
of this Agreement after the date hereof, and any person which
becomes an Obligor which has bank accounts in existence at the
date of becoming an Obligor promptly executes (to the extent
permitted by applicable law and the general terms and
conditions of the relevant bank which provides any such
account (to the extent that such terms and conditions are
standard in the relevant jurisdiction)) encumbrances on
substantially identical terms to the Account Pledges or, as
the case may be, the Target Account Pledges over such bank
account,
and shall promptly provide the Agent with such documents and evidence
(including legal opinions) as it may require that such has been duly
executed and delivered by such person and is legal, valid, binding and
enforceable in accordance with its terms and that, in the case of
sub-clause 45.2.1, all relevant Relevant Contracts and Necessary
Authorisations have been entered into.
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45.3 MULTIKABEL ACQUISITION
45.3.1 The Borrower shall procure that without delay after the
completion of the Multikabel Acquisition and in any event
within 14 days thereafter each member of the Multikabel Group
listed in Schedule 9 (Members of the Multikabel Group Granting
Security):
(a) accedes hereto as a Guarantor in accordance with
sub-clause 45.1.1 of Clause 45.1 (Additional
Guarantors) ; and
(b) creates security in favour of the Finance Parties by
executing the Target Security.
45.3.2 PrimaCom Netherlands Holding BV shall without delay after the
completion of the Multikabel Acquisition and in any event
within 14 days thereafter create security in favour of the
Finance Parties by executing a Target Share Pledge in respect
of its shareholding in Multikabel.
45.4 FURTHER ASSURANCE
Each Obligor shall from time to time, at the request of the Security
Trustee, do any act or execute in favour of the Security Trustee or as
the Security Trustee may direct such further or other documents as the
Security Trustee shall stipulate, in such form as the Security Trustee
may require, for the perfection of the security contemplated by this
Clause 45.
45.5 WAIVER OF CERTAIN SECURITY REQUIREMENTS
The parties hereto acknowledge and agree that, notwithstanding the
other provisions of this Agreement:
45.5.1 given the shareholder structure of the companies of the Group
listed below, it will not be possible for those companies to
execute this Agreement, grant any security rights in
connection with this Agreement and/or have shares or limited
partnership interests, as the case may be, in those companies
pledged, due to blocking minorities in those companies (which
may also use their blocking rights in the general partner to
have effects in the respective limited partnership):
NO COMPANY STATED PERCENTAGE NUMBER OF
CAPITAL/CAPITAL OF HOLDING SUBSCRIBERS
CONTRIBUTION
1. Kabelcom Braunschweig GmbH DM 2,000,000 0,415% ---
2. Kabelcom Xxxxxxxxxxxx XX 100,000 72,6% 9,273
Gesellschaft fur
Breitbandkabelkommunikation
mbH
3. Kabelcom Osnabruck DM 9,940,000 100% 38,983
Gesellschaft fur
Breitbandkabelkommunikation
mbH & Co. KG, Osnabruck
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NO COMPANY STATED PERCENTAGE NUMBER OF
CAPITAL/CAPITAL OF HOLDING SUBSCRIBERS
CONTRIBUTION
4. Kabelcom Osnabruck DM 50,000 76% ---
Beteiligungsgesellschaft fur
Breitbandkabelkommunikation
mbH, Osnabruck
5. MainzKom Telekommunikation DM 4,000,000 26% ---
GmbH
6. MDF 1 Lokales Fernsehen DM 100,000 24,5% ---
Magdeburg GmbH + 0,5%
7. PKG Kabelbeitriebsgesellschaft DM 50,000 80% 3,167
MbH, Heidenau
8. TV Halle Fernsehgesellschaft 25% ---
mbH
45.5.2 given the structure of interests held in those companies
listed below and the legal requirements under the laws
applicable to No. 2 and 3 of such companies to disclose any
security rights granted to the public authorities, and the
fact that the company under No. 1 is a pure shelf company,
those companies will neither execute this Agreement, grant any
security rights in connection with this Agreement and/or have
shares in those companies pledged:
NO COMPANY STATED PERCENTAGE NUMBER OF
CAPITAL/CAPITAL OF HOLDING SUBSCRIBERS
CONTRIBUTION
1. PrimaCom DM 50,000 100% ---
Kabelbetriebsgesellschaft
2. PrimaTV broadcasting GmbH, DM 50,000 100% ---
Mainz
3. PrimaCom Projektmanagement DM 50,000 100% ---
GmbH, Eschborn
46. AMENDMENTS, CONSENTS
Subject to the proviso below, the Agent (acting on the instructions of
an Instructing Group) may grant waivers or consents or, subject to the
agreement of the Borrower, amend or vary the terms of this Agreement.
Any such waiver, consent, variation or amendment shall be made in
writing and shall be binding on all the parties hereto and the Agent
shall be under no liability whatsoever in respect of any such waiver,
consent, variation or amendment PROVIDED THAT:
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46.1.1 except with the prior written consent of all the Banks, no
waiver may be granted in respect of and the Agent may not vary
or amend the terms of this Agreement so as to:
(a) alter the date on which any repayment is to be made
hereunder; or
(b) alter the amount or currency of any Advance or Letter
of Credit as the case may be, or any Bank's
Commitment or any payment;
(c) alter the Margin, the rate of interest, the L/C
Commission Rate or its method of calculation;
(d) alter this Clause 46;
(e) alter the definition of "Instructing Group";
(f) alter any provision of this Agreement referring to a
requirement for the agreement or consent of all the
Banks;
(g) alter the form of any guarantee given by the
Guarantor(s); or
(h) waive the delivery, in satisfactory form and
substance, of any of the documents listed in Schedule
3 (Conditions Precedent) hereto prior to the first
Notice of Drawdown; and
46.1.2 any waiver, consent, variation or amendment which directly
affects the rights and/or obligations of the Agent, the
Arrangers, the Fronting Bank or the Security Trustee (or any
of them) shall require its agreement also.
Any waiver, consent or variation authorised and effected by the Agent
pursuant to sub-clause 46.1.1 shall be binding on each Obligor, the
Holding Company, and each Finance Party upon written notification
thereof to such persons and the Agent shall be under no liability
whatsoever in respect of any such waiver, consent or variation.
47. LAW
47.1 GOVERNING LAW
This Agreement shall be governed by, and shall be construed in
accordance with, English law.
47.2 OVERDRAFT FACILITY
In addition to the provisions of this Agreement, the General Business
Conditions of Chase Manhattan Bank AG in the form set out in Schedule
10 (General Business Conditions) (as amended from time to time and
notified to the Borrower) shall be applicable, and, for the purposes
thereof, references therein to customer (Xxxxx) shall apply, mutatis
mutandis, to each Obligor and to bank (Bank) shall apply, mutatis
mutandis, to each Bank. For the avoidance of doubt, both the German and
English versions of the General Business Conditions are set out in
Schedule 10 (General Business Conditions). However, the German version
shall at all times prevail.
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48. JURISDICTION
48.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to hear and determine
any suit, action or proceeding, and to settle any dispute (a
"DISPUTE"), which may arise out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination
of this Agreement or the consequences of its nullity).
48.2 CONVENIENT FORUM
The parties agree that the courts of England are the most convenient
and appropriate courts to settle Disputes between them and accordingly
they will not agree to the contrary.
48.3 NON-EXCLUSIVE JURISDICTION
The submission to the jurisdiction of the courts referred to in Clause
48.1 (English Courts) is for the benefit of the Finance Parties only.
As a result and notwithstanding Clause 48.1 (English Courts) it does
not prevent the Finance Parties or any of them from taking proceedings
relating to a Dispute ("PROCEEDINGS") in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
48.4 SERVICE OF PROCESS
Each of the Holding Company and the Obligors agrees that the documents
which start any Proceedings and any other documents required to be
served in relation to those Proceedings may be served on it on Xxxxx &
XxXxxxxx, 000 Xxx Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX marked for the
attention of "Partner in charge of litigation", or if different, its
registered office. If the appointment of the person mentioned in this
Clause 48.4 ceases to be effective, the Holding Company or, as the case
may be, the relevant Obligor shall immediately appoint another person
in England to accept service of process on its behalf in England. If it
fails to do so and such failure continues for a period of not less than
fourteen days, the Agent shall be entitled to appoint such a person by
notice to the Holding Company or, as the case may be, the relevant
Obligor. Nothing contained herein shall restrict the right to serve
process in any other manner allowed by law. This Clause 48.4 applies to
Proceedings in England and to Proceedings elsewhere.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
THE BANKS
BANK COMMITMENT (EUR)
Barclays Bank PLC 125,000,000
Dresdner Bank AG in Hamburg 125,000,000
Fortis Bank (Nederland) N.V. 125,000,000
ING Bank N.V. 125,000,000
NB International Finance B.V. 125,000,000
The Chase Manhattan Bank, London branch 110,000,000
The Royal Bank of Scotland plc 125,000,000
The Toronto-Dominion Bank 125,000,000
TOTAL EUR 985,000,000
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: Chase Manhattan Bank AG
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] 2000 whereby a
EUR 985,000,000 loan and letter of credit facility was made available to the
Borrower (as defined therein) by a group of banks on whose behalf Chase
Manhattan Bank AG acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms "BANK" and
"TRANSFEREE" are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "BANK'S COMMITMENT", "REVOLVING ADVANCE(S)" or "LETTERS OF CREDIT"
accurately summarises its participation in, and the Term and Interest
Payment Date of, one or more existing Advances or Letters of Credit, as the
case may be, and (ii) requests the Transferee to accept and procure the
assignment and transfer to the Transferee of the portion specified in the
schedule hereto to be the portion transferred of its Commitment, its
participation in such Advance(s) and/or Letters of Credit, as the case may
be, by counter-signing and delivering this Transfer Certificate to the
Agent at its address for the service of notices specified in the Facility
Agreement.
3. The Transferee hereby requests the Agent (on behalf of itself and all other
parties to the Agreement) to accept this Transfer Certificate as being
delivered to the Agent pursuant to and for the purposes of Clause 37.3
(Transfers by Banks) of the Facility Agreement so as to take effect in
accordance with the terms thereof on the Transfer Date or on such later
date as may be determined in accordance with the terms thereof.
4. The Transferee warrants that it has received a copy of each of the Facility
Documents together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
any such information and further agrees that it has not relied and will not
rely on the Bank to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of any
member of the Group.
5. The Transferee hereby undertakes and agrees with the Bank and each of the
other parties to the Facility Documents that it will perform in accordance
with their terms all those obligations which by the terms of the Facility
Documents will be assumed by it and that it will be bound by the terms of
the Facility Documents as if it were an original party thereto after
delivery of this Transfer Certificate to the Agent and
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satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
6. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Documents and assumes no responsibility for
the financial condition of any member of the Group or for the performance
and observance by any Obligor or the Holding Company of any of its
obligations under the Facility Documents and any and all such conditions
and warranties, whether express or implied by law or otherwise, are hereby
excluded.
7. The Bank hereby gives notice that nothing in the Facility Documents shall
oblige the Bank to (i) accept a re-transfer or re-assignment from the
Transferee of the whole or any part of its rights, benefits and/or
obligations under the Facility Documents transferred or assigned pursuant
hereto or (ii) support any losses directly or indirectly sustained or
incurred by the Transferee for any reason whatsoever including, without
limitation, the non-performance by any of the Obligors or the Holding
Company of its obligations under any of the Facility Documents. The
Transferee hereby acknowledges the absence of any such obligation as is
referred to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
THE SCHEDULE
9. Bank:
10. Transferee:
11. Transfer Date:
12. Commitment:
Bank's Commitment Portion Transferred
13. Advance(s):
Amount of Term and
Bank's Participation Interest Payment Date Portion Transferred
Letters of Credit
Portion Term and Portion of
Expiry Date Letters of Credit
Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
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ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Telephone:
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SCHEDULE 3
CONDITION PRECEDENT DOCUMENTS
1. A copy of the constitutional documents of each Obligor and the Holding
Company, certified at the date hereof a true copy by a duly authorised
officer or managing director of such Obligor or the Holding Company, as
the case may be, including its Commercial Register extract and Articles
of Incorporation (Gesellschaftvertrag) (or a copy of the Commercial
Register extract and Articles of Incorporation certified a true copy as
at 29 June together with certification by a duly authorised officer
that such materials remain up to date and have not been changed) and
including, in the case of each Obligor or the Holding Company
incorporated in Germany, any shareholder resolutions previously passed
but not registered or, in the case of each Obligor which is a limited
partnership, its partnership agreement.
2. A copy certified at the date hereof a true copy by a duly authorised
officer or managing director of each Obligor and the Holding Company of
the board minutes, the shareholder resolution and/or an excerpt from
the resolution of the Supervisory Board (as the case may be) approving
the execution, delivery and performance of each of the Facility
Documents to which it is party, and the terms and conditions thereof
and authorising a named person or persons to sign the Facility
Documents to which it is party.
3. A certificate in form and substance similar to the certificate set out
in Schedule 15 (Requirements Certificate).
4. A duly executed original of each of the Facility Documents (with the
exception of the Target Security and the Additional Security), together
with any agreements, documents or notices required to be delivered
pursuant thereto.
5. A legal opinion of Xxxxxxxx Chance Punder, Frankfurt counsel to the
Agent.
6. A legal opinion of Xxxxxxxx Chance, London counsel to the Agent.
7. A legal opinion of De Brauw Blackstone Westbroek N.V., Dutch counsel to
the Agent.
8. Copies of each of the Relevant Contracts and/or a list thereof.
9. Duly executed originals of each of the fees letters referred to in
Clauses 30.2 and 30.3 of this Agreement.
10. Certified copies of each of the Original Financial Statements.
11. Evidence that the insurances required by the terms of the Facility
Documents to be maintained by the Group or on its behalf are in full
force and effect and giving details of all such insurances.
12. Evidence satisfactory to the Agent regarding the refinancing of the
Existing PrimaCom Indebtedness out of the proceeds of the Advances to
be made hereunder on the first Utilisation Date.
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13. Certificates from a managing director of the Borrower dated the date
hereof and the date upon which the Security Documents are executed that
to the best of his knowledge such member of the Group is not insolvent
on a balance sheet test (uberschuldet) and is not unable to meet its
debts as they fall due (zahlungsunfahig) and stating (in the case of
any Group member in respect of which a Commercial Register extract has
not been delivered) the capitalisation of each such member of the Group
on such dates.
14. Evidence that all arrangement and agency fees due from the Obligors in
connection with the Facility Documents shall be paid out of the
proceeds of first drawdown.
15. Evidence that on the date of the first Utilisation of the Facility all
Existing PrimaCom Encumbrances will be discharged.
16. A certificate listing the encumbrances of the Financial Group and the
Multikabel Group existing on the Closing Date (other than Permitted
Encumbrances of the type described in paragraphs (a) to (g) inclusive
and paragraph (j) of the definition thereof).
17. A duly executed original of the Working Capital Facility and each
agreement evidencing Subordinated Debt each in substance satisfactory
to the Agent together with evidence satisfactory to the Agent that the
Working Capital Facility and the Subordinated Debt is available for
drawing (other than any condition contained in the Working Capital
Facility that the Facility and the Overdraft Facility are available).
18. A duly executed certified copy of the Multikabel Acquisition Agreement,
together with certified copies of any shareholder and management
agreements entered into by any member of the Multikabel Group each in
substance satisfactory to the Agent.
19. A certificate from a managing director of the Holding Company that to
the best of its knowledge, having made due enquiry, at its date the
Multikabel Group is in full compliance with all material terms and
conditions of applicable Relevant Contracts and any intercreditor
agreements and that all Licenses necessary for the business currently
undertaken by the Multikabel Group are in effect save as disclosed in
writing prior to the Closing Date to the Agent.
20. A certificate in relation to the Multikabel Acquisition in form and
substance similar to the certificate set out in Schedule 15
(Requirements Certificate).
21. Copies of documentation relating to Finance Leases permitted pursuant
to sub-clause 23.2.2(f) of Clause 23.2 (Negative Covenants) in
substance satisfactory to the Agent.
22. A certificate from a managing director of the Holding Company
confirming that to the best of its knowledge any assumptions contained
in the consolidated business plan of the Financial Group delivered to
the Finance Parties prior to the Closing Date related to tax loss
carry-forward are reasonable in the context of Dutch GAAP and German
GAAP.
23. Group structure charts certified by the Holding Company in relation to
(a) the Financial Group as at the Closing Date, (b) the Financial Group
immediately after the
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completion of the Multikabel Acquisition and (c) the Financial Group
immediately following the Reorganisation.
24. Evidence that the process agent referred to in Clause 48.4 (Service of
Process) has accepted its appointment.
25. A copy of the pro forma consolidated semi-annual financial statements
of the Holding Company, assuming completion of the Multikabel
Acquisition, reviewed by Ernst & Young, for the six months ended 30
June 2000.
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SCHEDULE 4
NOTICE OF DRAWDOWN
From: PrimaCom Management GmbH
To: Chase Manhattan Bank AG
Dated: [ ]
Dear Sirs
1. We refer to the agreement (as from time to time amended, varied,
novated or supplemented, the "FACILITY AGREEMENT") dated [ ] and made
between, inter alia, PrimaCom Management GmbH as borrower, the original
guarantors named therein, Chase Manhattan Bank AG as agent and the
financial institutions named therein as banks. Terms defined in the
Facility Agreement shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement and
upon the terms and subject to the conditions contained therein, we wish
[an Advance/a Letter of Credit] to be [made to us/issued] under the
Facility as follows:
(a) Amount:
(b) Drawdown Date/Issue Date:
(c) Term:
(d) Purpose:
[(e) Expiry Date:](1)
3. We confirm that, at the date hereof, the Repeated Representations are
true and no Event of Default or Potential Event of Default has occurred
and is continuing unwaived or unremedied.
4. [The proceeds of this drawdown should be credited to [insert account
details].]
or
[We attach the agreed form of the letter of credit/letter of
guarantee.]
5. We confirm that, as at the proposed Utilisation Date, the Financial
Group will be in compliance with Clause 22.1 (Total Leverage Ratio) and
Clause 22.2 (Net Senior Leverage Ratio) of the Facility Agreement after
taking into account the Utilisation requested herein. We attach the
calculations demonstrating such compliance.
--------------------------------------------------------------------------------
1 Letters of Credit only.
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6. [The Advance requested herein is a Multikabel Acquisition Advance].(2)
Yours faithfully
............................................
BY PRIMACOM MANAGEMENT GMBH
--------------------------------------------------------------------------------
2 To be inserted if Advance is a Multikabel Acquisition Advance. N.B. - includes
Rollover Advances in respect thereof.
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SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: Chase Manhattan Bank AG [Date]
RE: FACILITY AGREEMENT (THE "FACILITY AGREEMENT") DATED [ ] 2000
BETWEEN, INTER ALIA, (1) PRIMACOM MANAGEMENT GMBH AS BORROWER, (2) THE
ORIGINAL GUARANTORS NAMED THEREIN, (3) CHASE MANHATTAN BANK AG, (4)
CHASE MANHATTAN BANK AG AS SECURITY TRUSTEE, (5) CHASE MANHATTAN BANK
AG, AS OVERDRAFT BANK AND (6) THE FINANCIAL INSTITUTIONS DEFINED
THEREIN AS BANKS.
----------------------------------------------
1. Terms defined in the Facility Agreement have the same meaning when used
in this certificate.
2. [I/We], managing director(s) of PrimaCom Management GmbH, hereby
certify that in respect of the Quarterly Period ending on [ ]:
(a) As at the end of such Quarterly Period Total Debt was EUR
[ ].
As at the end of such Quarterly Period Annualised EBITDA was
EUR [ ].
As at the end of such Quarterly Period the ratio of Total Debt
to Annualised EBITDA was [ ].
Required Covenant:
Compliance: Yes/No
(b) As at the end of such Quarterly Period Net Senior Debt was EUR
[ ].
As at the end of such Quarterly Period Annualised EBITDA was
EUR [ ].
As at the end of such Quarterly Period the ratio of Net Senior
Debt to Annualised EBITDA was [ ].
Required Covenant:
Compliance: Yes/No
(c) Consolidated EBITDA for such Quarterly Period was EUR
[ ].
Total Cash Interest Expense for such Quarterly Period was
[EUR ].
As at the end of such Quarterly Period the ratio of
Consolidated EBITDA to Total Cash Interest Expense was [ ].
Required Covenant:
Compliance: Yes/No
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(d) As at the end of such Quarterly Period Annualised EBITDA was
EUR [ ].
As at the end of such Quarterly Period Pro Forma Debt Service
was EUR [ ].
As at the end of such Quarterly Period the ratio of Annualised
EBITDA to Pro Forma Debt Service was [ ].
Required Covenant:
Compliance: Yes/No
Detailed calculations of Total Debt, Net Senior Debt, Annualised EBITDA, Total
Cash Interest Expense and Pro Forma Debt Service are attached.
[I/We] confirm that having made due enquiry that no Event of Default or
Potential Event of Default has occurred, the Borrowers were in compliance with
the covenants contained in sub-clauses 22.1, 22.2, 22.3, 22.4 and 22.5 of Clause
22 (Financial Condition) of the Facility Agreement as at [ ].
Yours faithfully,
..................................
Managing Director of
PRIMACOM MANAGEMENT GMBH
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SCHEDULE 6
QUARTERLY SUBSCRIBER CERTIFICATE
REGION Homes Passed Subscribers Penetration
Leipzig
Berlin
Osnabruck/Aachen
Wiesbaden/Mainz
Other
Internet Subscribers
Digital Subscribers
--------------------------------------------------------------------------------
TOTAL EXISTING GROUP 0 0 0.00%
--------------------------------------------------------------------------------
Acquisitions During Period
--------------------------------------------------------------------------------
TOTAL GROUP 0 0 0.00%
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SCHEDULE 7
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: Chase Manhattan Bank AG
From: [Subsidiary]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Facility Agreement") dated [ ] 2000 and
made between, inter alia, (1) PrimaCom Management GmbH as borrower, (2)
the original guarantors named therein, (3) Chase Manhattan Bank AG as
agent, (4) Chase Manhattan Bank AG as security trustee, (5) Chase
Manhattan Bank AG as overdraft bank and (6) the financial institutions
defined therein as Banks.
2. Terms defined in the Facility Agreement shall bear the same meaning
herein.
3. [Subsidiary] (the "SUBSIDIARY") hereby agrees to be a Guarantor
pursuant to sub-clause 45.1.1 of Clause 45.1 (Additional Guarantors) of
the Facility Agreement and accordingly undertakes henceforth to perform
all the obligations expressed to be undertaken under the Facility
Agreement by a Guarantor in all respects as if it had been an original
party thereto as an Original Guarantor.
4. The Subsidiary, each Obligor and the Holding Company hereby makes, for
the benefit of each Finance Party, each of the representations set out
in Clause 20 (Representations) of the Facility Agreement.
5. [Subsidiary's] administrative details are as follows:
Address:
Telephone No:
Telex No:
Telefax No:
6. This notice shall be governed by and construed in all respects in
accordance with English law.
7. The Subsidiary agrees that the documents which start any proceedings
and any other documents required to be served in relation to those
proceedings may be served on it on [name and address of process agent],
or if different, its registered office. If the appointment of the
person mentioned above ceases to be effective, the Subsidiary shall
immediately appoint another person in England to accept service of
process on its behalf in England. If it fails to do so and such failure
continues for a period of not less than fourteen days, the Agent shall
be entitled to appoint such a person by notice. Nothing contained
herein shall restrict the right to serve process in any other manner
allowed by law. This applies to Proceedings in England and to
Proceedings elsewhere.
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This memorandum is executed and delivered as a deed by [name of Subsidiary]:
[insert appropriate execution clause for a deed]
[List Obligors and Holding Company]
By:
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SCHEDULE 8
DOCUMENTS TO ACCOMPANY GUARANTOR ACCESSION MEMORANDUM
1. A copy, certified a true copy by a duly authorised officer or managing
director of the proposed Guarantor, of the constitutive documents of
such proposed Guarantor, including its Commercial Register extract and
Articles of Incorporation (Gesellschaftsvertrag) and including in the
case of a proposed Guarantor incorporated in Germany, any shareholders
resolutions previously passed but not registered or, where the proposed
Guarantor is a partnership, its partnership agreement.
2. A copy, certified a true copy by a duly authorised officer or managing
director of the proposed Guarantor, of a board and/or shareholder
resolution (as the case may be) of such proposed Guarantor approving
the execution and delivery of a Guarantor Accession Memorandum, the
accession of such proposed Guarantor to this Agreement, the granting of
security required under the Facility Documents and the performance of
its obligations under the Facility Documents and authorising a person
or persons (specified by name or office) on behalf of such proposed
Guarantor to sign such Guarantor Accession Memorandum, any other
Facility Document and any other documents to be delivered by such
proposed Guarantor pursuant thereto.
3. A certificate of a duly authorised officer of the proposed Guarantor
setting out the names and signatures of the person or persons mentioned
in the resolution referred to in paragraph 2 above.
4. A certificate addressed to the Agent signed by two directors of the
proposed Guarantor stating that the execution by such proposed
Guarantor of the Facility Documents and the performance by such
proposed Guarantor of its obligations thereunder are within its
corporate powers, have been duly approved by all necessary corporate
action and will not cause any limit or restriction on any of its powers
(whether imposed by law, decree, rule, regulation, its constitutive
documents or agreement or otherwise) or on the right or ability of its
directors to execute such powers, to be exceeded or breached.
5. Such Security Documents as the Agent may reasonably require, executed
by the proposed Guarantor on equivalent terms to those previously
executed by the Obligors (if any) originally party to the Facility
Agreement which are the same type of legal entity as the proposed
Guarantor with the same type of assets.
6. A copy of its latest financial statements.
7. Such legal opinions as may be reasonably required by the Agent in a
form satisfactory to the Agent.
8. If the proposed Additional Guarantor is incorporated in a jurisdiction
other than England and Wales evidence that the process agent specified
in the relevant Guarantor Accession Memorandum has agreed to act as its
agent for the service of process in England.
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SCHEDULE 9
MEMBERS OF THE MULTIKABEL GROUP GRANTING SECURITY
N.V. Kabeltelevisie Kop Noord - Holland
Communikabel Holding B.V.
Noord - Holland Digitaal B.V.
Communikabel N.V.
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SCHEDULE 10
GENERAL BUSINESS CONDITIONS
-125-
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SCHEDULE 11
FORMS OF LETTER OF CREDIT AND GUARANTEE
PART A
FORM OF LETTER OF CREDIT TO BE ISSUED BY A FRONTING BANK
To: [Beneficiary]
Date:
Dear Sirs
IRREVOCABLE LETTER OF CREDIT NO. [ ]
At the request and for the account of PrimaCom Management GmbH (the "OBLIGOR")
we [ ] (the "BANK") hereby issue this irrevocable letter of credit (this
"CREDIT") in favour of [Beneficiary] (the "BENEFICIARY") and upon the following
terms and conditions:
1. In this Credit the following terms shall have the following meanings:
"BUSINESS DAY" means a day upon which banks are generally open for
commercial banking business in London, Frankfurt and New York; and
"CLAIMED AMOUNT" shall have the meaning ascribed thereto in paragraph 4
below.
2. This Credit is effective immediately in a total amount of
[EUR [ ]([ ] euros]/[$[ ] ([ ] United States dollars)].
3. The maximum amount from time to time available to the Beneficiary from
the Bank under this Credit shall equal the sum referred to in paragraph
2 less the aggregate of all payments which have been made under this
Credit pursuant to any demand previously delivered pursuant to
paragraph 4 hereof.
4. Subject to the other terms and conditions hereof, payment by the Bank
under this Credit shall be made five Business Days after delivery to
the Bank at its office at [ ] (or such other address in [ ] as the
Bank may from time to time notify in writing to the Beneficiary for
this purpose) of a letter of certification and demand substantially in
the form of the Schedule hereto (the "CLAIM LETTER") addressed to the
Bank, dated the date of delivery thereof, purporting to be signed for
and on behalf of the Beneficiary and stating:
(a) that a specified amount of [euros]/[United States dollars]
(the "CLAIMED AMOUNT") has become due and payable by the
Obligor to the Beneficiary but has not been paid;
(b) that payment of such Claimed Amount is required to be made
under this Credit; and
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(c) that no previous demand has been made of the Bank in respect
of the amount referred to in (a) above.
5. The Bank hereby engages that payment, in respect of any Claimed Amount
required to be paid pursuant to the provisions of paragraph 4 above,
will be made by the Bank under this Credit (free and clear of and
without deduction for or on account of any set-off or counterclaim) on
the fifth Business Day from and inclusive of the date of its receipt of
the Claim Letter validly delivered to the Bank in accordance with
paragraph 4 above.
6. Without prejudice to the Bank's obligations in respect of any Claim
Letter validly delivered to the Bank in accordance with paragraph 4
above prior to the termination hereof, this Credit shall terminate, and
the amount available to the Beneficiary from the Bank under this Credit
shall be reduced to zero at [ ] p.m. ([London] time) on [ ].
7. This Credit may be terminated prior to the date specified in paragraph
6 above by five Business Days' prior written notice to the Bank jointly
given by both the Beneficiary and the Obligor.
8. The Beneficiary's rights and obligations and the rights and obligations
of the Bank under this Credit may not be assigned or transferred.
9. Save only as may be inconsistent with the express terms of this Credit,
this Credit is issued subject to the ICC Uniform Customs and Practice
for Documentary Credits (1993 Revision) ICC Publication No. 500.
10. The Bank shall not be obliged to deal in any way in relation to this
Credit with any person other than the Beneficiary, irrespective of
whether the Beneficiary is acting as principal or as the agent of or
trustee for itself and/or any other persons.
11. This Credit shall be governed by, and construed in accordance with,
English law and for the benefit of the Beneficiary only, the courts of
England shall have exclusive jurisdiction.
12. This Credit sets out the entire undertaking of the Bank to the
Beneficiary and shall not be modified or amended by reference to any
instrument or document except as expressly provided herein.
Yours faithfully
...............................
(authorised signatory)
For and on behalf of
[name of Fronting Bank]
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SCHEDULE TO IRREVOCABLE LETTER OF CREDIT NO. [ ]
FORM OF CLAIM LETTER
To: [the Bank] of [address]
Attention: [ ]
[ ] 200[ ]
Dear Sirs
IRREVOCABLE LETTER OF CREDIT NO. [ ]
1. We refer to the irrevocable letter of credit No. [ ] (the "CREDIT")
issued on [ ] 200[ ] in our favour by you. Terms defined therein
shall have the same meaning in this Claim Letter.
2. We hereby certify that:
(a) an amount of [EUR [ ]]/[$[ ]] has become due and payable
by the Obligor, payment of such amount is required to be made
under the Credit and has been demanded from the Obligor and
remains unpaid as at the date hereof; and
(b) no previous demand has been made by us under the Credit in
respect of the amount referred to in (a) above.
3. Accordingly, we hereby demand payment under the Credit of an amount of
[ ](3).
Yours faithfully
for and on behalf of
[BENEFICIARY]
--------------------------------------------------------------------------------
3 Not to exceed amount referred to in paragraph 2(a) above
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SCHEDULE 11
PART B
FORM OF GUARANTEE TO BE ISSUED BY A FRONTING BANK
To: Beneficiary
Date:
Dear Sirs
IRREVOCABLE GUARANTEE NO. [ ]
At the request and for the account of PrimaCom Management GmbH (the "OBLIGOR")
we [ ] (the "BANK") hereby issue this irrevocable guarantee (this
"GUARANTEE") in favour of [Beneficiary] (the "BENEFICIARY") in respect of a
Facility Agreement dated [ ] 2000 and upon the following terms and conditions:
1. In this Guarantee the following terms shall have the following
meanings:
"BUSINESS DAY" means a day upon which banks are generally open for commercial
banking business in London, Frankfurt and New York; and
"GUARANTEED AMOUNT" shall have the meaning ascribed thereto in paragraph 4
below.
2. This Guarantee is effective immediately in a total amount of
[EUR[ ]([ ] euros)]/$[ ] ([ ] United States dollars)].
3. The maximum amount from time to time available to the Beneficiary from
the Bank under this Guarantee shall equal the sum referred to in
paragraph 2 less the aggregate of all payments which have been made
under this Guarantee pursuant to any demand previously delivered
pursuant to paragraph 4 hereof.
4. Subject to the other terms and conditions hereof, payment by the Bank
under this Guarantee shall be made five Business Days after delivery to
the Bank at its office at [ ] (or such other address in [ ] as the Bank
may from time to time notify in writing to the Beneficiary for this
purpose) of a letter of certification and demand substantially in the
form of the Schedule hereto (the "CLAIM LETTER") addressed to the Bank,
dated the date of delivery thereof, purporting to be signed for and on
behalf of the Beneficiary and stating:
(a) that a specified amount of [euros]/[United States dollars]
(the "GUARANTEED AMOUNT") has become due and payable by the
Obligor to the Beneficiary but has not been paid;
(b) that payment of such Guaranteed Amount is required to be made
under this Guarantee; and
(c) that no previous demand has been made of the Bank in respect
of the amount referred to in (a) above.
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5. The Bank hereby engages that payment, in respect of any Guaranteed
Amount required to be paid pursuant to the provisions of paragraph 4
above, will be made by the Bank under this Guarantee (free and clear of
and without deduction for or on account of any set-off or counterclaim)
on the fifth Business Day from and inclusive of the date of its receipt
of the Claim Letter validly delivered to the Bank in accordance with
paragraph 4 above.
6. Without prejudice to the Bank's obligations in respect of any Claim
Letter validly delivered to the Bank in accordance with paragraph 4
above prior to the termination hereof, this Guarantee shall terminate,
and the amount available to the Beneficiary from the Bank under this
Guarantee shall be reduced to zero at [ ] p.m. ([London] time) on
[ ].
7. This Guarantee may be terminated prior to the date specified in
paragraph 6 above by five Business Days' prior written notice to the
Bank jointly given by both the Beneficiary and the Obligor.
8. The Beneficiary's rights and obligations and the rights and obligations
of the Bank under this Guarantee may not be assigned or transferred.
9. The Bank shall not be obliged to deal in any way in relation to this
Guarantee with any person other than the Beneficiary, irrespective of
whether the Beneficiary is acting as principal or as the agent of or
trustee for itself and/or any other persons.
10. This Guarantee shall be governed by, and construed in accordance with,
English law and for the benefit of the Beneficiary only, the courts of
England shall have exclusive jurisdiction.
11. This Guarantee sets out the entire undertaking of the Bank to the
Beneficiary and shall not be modified or amended by reference to any
instrument or document except as expressly provided herein.
Yours faithfully
...............................
(authorised signatory)
For and on behalf of
[name of Fronting Bank]
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SCHEDULE TO IRREVOCABLE GUARANTEE NO. [ ]
FORM OF CLAIM LETTER
To: [the Bank] of [address]
Attention: [ ]
[ ] 200[ ]
Dear Sirs
IRREVOCABLE GUARANTEE NO. [ ]
1. We refer to the irrevocable Guarantee No. [ ] (the "GUARANTEE") issued
on [ ] 200[ ] in our favour by you. Terms defined therein shall have
the same meaning in this Claim Letter.
2. We hereby certify that:
(a) an amount of [EUR[ ]]/[$[ ]] has become due and payable
by the Obligor, payment of such amount is required to be made
under the Guarantee and has been demanded from the Obligor and
remains unpaid as at the date hereof; and
(b) no previous demand has been made by us under the Guarantee in
respect of the amount referred to in (a) above.
3. Accordingly, we hereby demand payment under the Guarantee of an amount
of [ ](4).
Yours faithfully
for and on behalf of
[BENEFICIARY]
--------------------------------------------------------------------------------
4 Not to exceed amount referred to in paragraph 2(a) above
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SCHEDULE 12
FACILITY REDUCTION SCHEDULE
REDUCTION DATE PERCENTAGE REDUCTION
31 March 2003 1.250%
30 June 2003 1.250%
30 September 2003 1.250%
31 December 2003 1.250%
31 March 2004 2.500%
30 June 2004 2.500%
30 September 2004 2.500%
31 December 2004 2.500%
31 March 2005 2.500%
30 June 2005 2.500%
30 September 2005 2.500%
31 December 2005 2.500%
31 March 2006 2.500%
30 June 2006 2.500%
30 September 2006 2.500%
31 December 2006 2.500%
31 March 2007 3.125%
30 June 2007 3.125%
30 September 2007 3.125%
31 December 2007 3.125%
31 March 2008 4.500%
30 June 2008 4.500%
30 September 2008 4.500%
31 December 2008 4.500%
31 March 2009 11.500%
30 June 2009 11.500%
30 September 2009 11.500%
-----------
100%
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SCHEDULE 13
THE ORIGINAL GUARANTORS
Acotec Kabelvision GmbH (to be renamed as PrimaCom Region Sudwest II GmbH)
ad media Gesellschaft mit beschankter Haftung & Co. Local TV KG
ad media Medienbeteiligungsgesellschaft mbH
Antennen-Xxxxxxxxx Verwaltungs GmbH (to be renamed PrimaCom Region Magdeburg
Verwaltungs GmbH)
APA Basic Beteiligungsgesellschaft mbH
Dritte Kabelvision Management Beteiligungs Verwaltungs GmbH, Eschborn (to be
renamed PrimaCom Region Angelbachtal Verwaltungs GmbH)
Erste Kabelvision Management Beteiligungs Verwaltungs GmbH, Eschborn (to be
renamed PrimaCom Region Dresden Verwaltungs GmbH)
Innocom Schwerin Kabel- Antennen -und Kommunikationsanlagen Service Verwaltungs
GmbH, Eschborn (to be renamed as PrimaCom Region Schwerin Verwaltungs GmbH)
ISIT Ingenieurgesellschaft fur Satelliten-Informations-und
Telekommunikationstechnik mbH, Frankfurt (to be renamed as PrimaCom Region
Berlin Verwaltungs GmbH)
Kabelcom Aachen Gesellschaft fur Kabelkommunikation mbH, Aachen
Kabelcom Aachen Gesellschaft fur Kabelkommunikation mbH & Co. KG, Aachen
Kabelcom Wiesbaden Gesellschaft fur Breitbandkabelkommunikation Beteiligungs
GmbH, Wiesbaden
Kabel-Fernsehen Leipzig Verwaltungs GmbH, Leipzig (to be renamed PrimaCom Region
Leipzig Verwaltungs GmbH)
KabelMedia Erste Fernsehkabelbeteiligungs GmbH & Co. KG, Eschborn
KabelMedia Erste Fernsehkabelbeteiligungs Verwaltungs GmbH, Eschborn
KabelMedia Projektmanagement Kommunikationsnetze Verwaltungs GmbH, Eschborn (to
be renamed PrimaCom Projektmanagement Verwaltungs GmbH & Co. KG)
Kabelvision Delitzsch Verwaltungs GmbH, Leipzig
Kabelvision Xxxxxxxx-Xxxxxxxxx St. Xxxxxxx Verwaltungs GmbH, Angelbachtal (to be
renamed PrimaCom Sudwest I Verwaltungs GmbH)
KFP Kabelfernsehen Plauen GmbH, Plauen (to be renamed PrimaCom Region Plauen
Verwaltungs GmbH)
PrimaCom Nord GmbH, Mainz
PrimaCom Kabelbetriebsgesellschaft mbH & Co KG, Region Berlin, Mainz
PrimaCom Kabelbetriebsgesellschaft mbH & Co KG, Region Hoyerswerda, Mainz
PrimaCom Kabelbetriebsgesellschaft mbH & Co KG, Region Leipzig, Mainz
PrimaCom Kabelbetriebsgesellschaft mbH & Co KG, Region Nordwest, Mainz
PrimaCom Kabelbetriebsgesellschaft mbH & Co KG, Region Plauen, Mainz
PrimaCom Kabelbetriebsgesellschaft mbH & Co KG, Region Sudwest, Mainz
PrimaCom Kabelbetriebsverwaltungsgesellschaft mbH, Mainz
PrimaCom Xxxxxxx XxxX & Xx. XX, Xxxxx
PrimaCom Mettlach GmbH & Co. KG, Mainz
PrimaCom Xxxxxxxx XxxX & Xx. XX, Xxxxx
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PrimaCom Projektmanagement GmbH & Co. KG, Mainz
PrimaCom Region Angelbachtal GmbH & Co. KG, Mainz
PrimaCom Region Berlin GmbH & Co. KG, Ahrensfelde
PrimaCom Region Dresden GmbH & Xx.XX, Mainz PrimaCom
Region Leipzig GmbH & Co. KG, Leipzig
PrimaCom Region Magdeburg GmbH & Co. KG, Magdeburg
PrimaCom Region Schwerin GmbH & Co. KG, Schwerin
PrimaCom Region Wiesbaden GmbH & Co. KG, Wiesbaden
PrimaCom Stormarn GmbH & Co. KG, Mainz
PrimaCom Sudwest I GmbH & Co. KG, Angelbachtal
PrimaCom Xxxx GmbH & Co. KG, Mainz
Suweda Kabelprojekt GmbH, Mainz
Zweite Kabelvision Management Beteiligungs GmbH & Co. KG, Mainz
Zweite Kabelvision Management Beteiligungs Verwaltungs GmbH, Frankfurt
PrimaCom Kabelbetriebsgesellschaft Chemnitz GmbH, Mainz
PrimaCom Netherlands Holding B.V.
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SCHEDULE 14
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to
compensate Banks for the cost of compliance with (a) the requirements
of the Financial Services Authority (or any other authority which
replaces all or any of its functions) or (b) the requirements of the
European Central Bank.
2. On the first day of each Term (or as soon as possible thereafter) the
Agent shall calculate, as a percentage rate, a rate (the "ADDITIONAL
COSTS RATE") for each Bank, in accordance with paragraphs 3 and 4 set
out below. The Mandatory Cost Rate will be calculated by the Agent as a
weighted average of the Banks' additional costs rates (weighted in
proportion to the percentage participation of each Bank in the relevant
Advance) and will be expressed as a percentage rate per annum.
3. The additional cost rate for each Bank lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Bank to the Agent (details of which will be notified to the Borrower).
The percentage will be the amount certified by the Bank in that
notification to the Agent to be the cost reasonably computed by that
Bank as being the reasonable costs incurred by it in complying with the
minimum reserve requirements of the European Central Bank to the extent
those costs are attributable to the funding of amounts outstanding
under the Agreement.
4. The additional cost rate for each Bank lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
E x 0.01
---------- per cent. per annum.
300
Where:
E is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fee Regulations (but, for
this purpose, ignoring any minimum fee required pursuant to
the Fee Regulations) and expressed in pounds per L 1,000,000
of the Fee Base of that Bank.
5. For the purposes of this Schedule:
(a) "FEE REGULATIONS" means the Banking Supervision (Fees)
Regulations 2000 or such other law as may be in force from
time to time in respect of the payment of fees for banking
supervision; and
(b) "FEE BASE" has the meaning given to it, and will be calculated
in accordance with, the Fee Regulations.
6. Each Bank shall supply any information required by the Agent for the
purpose of calculating the above formula. In particular, but without
limitation, each Bank shall
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supply the following information in writing on or prior to the date on
which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) such other information that the Agent may reasonably require
for such purpose.
Each Bank shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
7. The rate of charge of each Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it
pursuant to paragraph 6 above and on the assumption that, unless a Bank
notifies the Agent to the contrary, each Bank's obligations in relation
to the Fee Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by
any Bank pursuant to paragraphs 3 and 6 above is true and correct in
all respects.
8. The Agent shall distribute the additional amounts received pursuant to
the Mandatory Cost Rate to the Banks on the basis of the additional
costs rate for each Bank, in accordance with the above formula and
based on the information provided by each Bank pursuant to paragraphs 3
and 6 above.
9. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost Rate, an additional costs rate or any
amount payable to a Bank shall, in the absence of manifest error, be a
conclusive determination for the purposes of this Agreement.
The Agent may from time to time, after consultation with the Borrower and the
Banks, determine and notify to all parties any amendments or variations which
are required to be made to this Schedule in order to comply with any change in
law or any requirements from time to time imposed by the Financial Services
Authority or the European Central Bank (or, in any case, any other authority
which replaces all or any of its functions) and any such determination shall, in
the absence of manifest error, be a conclusive determination for the purposes of
this Agreement.
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SCHEDULE 15
REQUIREMENTS CERTIFICATE
To: Chase Manhattan Bank AG as Agent
Dear Sirs
1. We refer to the agreement (as from time to time amended, varied,
novated or supplemented, the "AGREEMENT") dated [ ] September 2000 and
made between PrimaCom Management GmbH as borrower, the original
guarantors named therein, Chase Manhattan Bank AG as agent, Chase
Manhattan Bank AG as fronting bank, overdraft bank and security trustee
and the financial institutions named therein as banks. Terms defined in
the Agreement (as defined therein) shall have the same meaning in this
certificate.
2. The undersigned are the managing directors of the Borrower being
entitled to represent the Borrower jointly.
3. In connection with the Agreement the undersigned hereby confirm in the
name and on behalf of the Borrower as of the date hereof that no law
(other than the German statutory law already in existence as at the
date hereof), decree, consent, licence, approval, registration or
declaration is required to render the Facility Documents legal, valid,
binding and enforceable, to make the Facility Documents admissible in
evidence in each Obligor's and the Holding Company's jurisdiction of
incorporation and to enable each of the Obligors and the Holding
Company to perform its obligations thereunder, other than [ ].
Date:
---------------------
-------------------------------
-------------------------------
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SIGNATURES
THE HOLDING COMPANY
PRIMACOM AG
By: XXXX XXXXXXXX XXXXX XXXXX
THE BORROWER
PRIMACOM MANAGEMENT GMBH, ESCHBORN
By: XXXX XXXXXXXX XXXXX XXXXX
Address: Xxxxxxxx. 00
00000 Xxxxx
Telephone: 00 00 0000 0000 000
Telefax: 00 49 6131 9310 509
All communications copied to:
Doser Amereller Xxxxx/Xxxxx & XxXxxxxx
Xxxxxxxxxxxxxxx 00-00
00000 Xxxxxxxxx
Xxxxxxx
Telefax: 4969 2990 8108
Attention: Xxxxxxxxx Xxxxxxxxx
THE GUARANTORS
ACOTEC KABELVISION GMBH (TO BE RENAMED AS PRIMACOM REGION SUDWEST II GMBH)
By: XXXXX XXXXX
AD MEDIA GESELLSCHAFT MIT BESCHANKTER HAFTUNG & CO. LOCAL TV KG
By: XXXXX XXXXX
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AD MEDIA MEDIENBETEILIGUNGSGESELLSCHAFT MBH
By: XXXXX XXXXX
ANTENNEN-XXXXXXXXX VERWALTUNGS GMBH (TO BE RENAMED PRIMACOM REGION MAGDEBURG
VERWALTUNGS GMBH)
By: XXXXX XXXXX
APA BASIC BETEILIGUNGSGESELLSCHAFT MBH
By: XXXXX XXXXX
DRITTE KABELVISION MANAGEMENT BETEILIGUNGS VERWALTUNGS GMBH, ESCHBORN (TO BE
RENAMED PRIMACOM REGION ANGELBACHTAL VERWALTUNGS GMBH)
By: XXXXX XXXXX
ERSTE KABELVISION MANAGEMENT BETEILIGUNGS VERWALTUNGS GMBH, ESCHBORN (TO BE
RENAMED PRIMACOM REGION DRESDEN VERWALTUNGS GMBH)
By: XXXXX XXXXX
INNOCOM SCHWERIN XXXXX- ANTENNEN -UND KOMMUNIKATIONSANLAGEN SERVICE VERWALTUNGS
GMBH, ESCHBORN (TO BE RENAMED AS PRIMACOM REGION SCHWERIN VERWALTUNGS GMBH)
By: XXXXX XXXXX
ISIT INGENIEURGESELLSCHAFT FUR SATELLITEN-INFORMATIONS-UND
TELEKOMMUNIKATIONSTECHNIK MBH, FRANKFURT (TO BE RENAMED AS PRIMACOM REGION
BERLIN VERWALTUNGS GMBH)
By: XXXXX XXXXX
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KABELCOM AACHEN GESELLSCHAFT FUR KABELKOMMUNIKATION MBH, AACHEN
By: XXXXX XXXXX
KABELCOM AACHEN GESELLSCHAFT FUR KABELKOMMUNIKATION MBH & CO. KG, AACHEN
By: XXXXX XXXXX
KABELCOM WIESBADEN GESELLSCHAFT FUR BREITBANDKABELKOMMUNIKATION BETEILIGUNGS
GMBH, WIESBADEN
By: XXXXX XXXXX
XXXXX-FERNSEHEN LEIPZIG VERWALTUNGS GMBH, LEIPZIG (TO BE RENAMED PRIMACOM REGION
LEIPZIG VERWALTUNGS GMBH)
By: XXXXX XXXXX
KABELMEDIA ERSTE FERNSEHKABELBETEILIGUNGS GMBH & CO. KG, ESCHBORN
By: XXXXX XXXXX
KABELMEDIA ERSTE FERNSEHKABELBETEILIGUNGS VERWALTUNGS GMBH, ESCHBORN
By: XXXXX XXXXX
KABELMEDIA PROJEKTMANAGEMENT KOMMUNIKATIONSNETZE VERWALTUNGS GMBH, ESCHBORN (TO
BE RENAMED PRIMACOM PROJEKTMANAGEMENT VERWALTUNGS GMBH & CO. KG)
By: XXXXX XXXXX
KABELVISION DELITZSCH VERWALTUNGS GMBH, LEIPZIG
By: XXXXX XXXXX
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000
XXXXXXXXXXX XXXXXXXX-XXXXXXXXX XX. XXXXXXX XXXXXXXXXXX GMBH, ANGELBACHTAL (TO BE
RENAMED PRIMACOM SUDWEST I VERWALTUNGS GMBH)
By: XXXXX XXXXX XXXXXXXXX XXXXXXXXX
KFP KABELFERNSEHEN PLAUEN GMBH, PLAUEN (TO BE RENAMED PRIMACOM REGION PLAUEN
VERWALTUNGS GMBH)
By: XXXXX XXXXX
PRIMACOM NORD GMBH, MAINZ
By: XXXXX XXXXX
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO KG, REGION BERLIN, MAINZ
By: XXXXX XXXXX
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO KG, REGION HOYERSWERDA, MAINZ
By: XXXXX XXXXX
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO KG, REGION LEIPZIG, MAINZ
By: XXXXX XXXXX
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO KG, REGION NORDWEST, MAINZ
By: XXXXX XXXXX
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PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO KG, REGION PLAUEN, MAINZ
By: XXXXX XXXXX
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO KG, REGION SUDWEST, MAINZ
By: XXXXX XXXXX
PRIMACOM KABELBETRIEBSVERWALTUNGSGESELLSCHAFT MBH, MAINZ
By: XXXXX XXXXX
PRIMACOM XXXXXXX XXXX & XX. XX, XXXXX
By: XXXXX XXXXX
PRIMACOM METTLACH GMBH & CO. KG, MAINZ
By: XXXXX XXXXX
PRIMACOM NETTETAL GMBH & CO. KG, MAINZ
By: XXXXX XXXXX
PRIMACOM PROJEKTMANAGEMENT GMBH & CO. KG, MAINZ
By: XXXXX XXXXX
PRIMACOM REGION ANGELBACHTAL GMBH & CO. KG, MAINZ
By: XXXXX XXXXX
PRIMACOM REGION BERLIN GMBH & CO. KG, AHRENSFELDE
By: XXXXX XXXXX XXXXXXXXX XXXXXXXXX
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PRIMACOM REGION DRESDEN GMBH & XX.XX, MAINZ
By: XXXXX XXXXX
PRIMACOM REGION LEIPZIG GMBH & CO. KG, LEIPZIG
By: XXXXX XXXXX
PRIMACOM REGION MAGDEBURG GMBH & CO. KG, MAGDEBURG
By: XXXXX XXXXX
PRIMACOM REGION SCHWERIN GMBH & CO. KG, SCHWERIN
By: XXXXX XXXXX
PRIMACOM REGION WIESBADEN GMBH & CO. KG, WIESBADEN
By: XXXXX XXXXX
PRIMACOM STORMARN GMBH & CO. KG, MAINZ
By: XXXXX XXXXX
PRIMACOM SUDWEST I GMBH & CO. KG, ANGELBACHTAL
By: XXXXX XXXXX XXXXXXXXX XXXXXXXXX
PRIMACOM XXXX GMBH & CO. KG, MAINZ
By: XXXXX XXXXX
SUWEDA KABELPROJEKT GMBH, MAINZ
By: XXXXX XXXXX
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ZWEITE KABELVISION MANAGEMENT BETEILIGUNGS GMBH & CO. KG, MAINZ
By: XXXXX XXXXX
ZWEITE KABELVISION MANAGEMENT BETEILIGUNGS VERWALTUNGS GMBH, FRANKFURT
By: XXXXX XXXXX
PRIMACOM KABELBETRIEBSGESELLSCHAFT CHEMNITZ GMBH, MAINZ
By: XXXXX XXXXX
PRIMACOM NETHERLANDS HOLDING B.V.
By: XXXXXXXXX XXXXXXXXX
THE AGENT AND SECURITY TRUSTEE
CHASE MANHATTAN BANK AG
By: XXXX XXXXX DE CARTERET
Address: Xxxxxxxxxxxx 0
00000 Xxxxxxxxx/Xxxx
Xxxxxxx
Telephone: 00 00 00 0000 0000
Telefax: 00 49 69 7158 2510
E-Mail:
Attention:
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000
XXX XXXX XXXXXXXXX
XXXX XX XXXXXXX INTERNATIONAL LIMITED
By: XXXX XXXXX DE CARTERET
BARCLAYS CAPITAL
By: XXXX XXXXX DE CARTERET
CHASE MANHATTAN PLC
By: XXXX XXXXX DE CARTERET
DRESDNER BANK AG, LONDON BRANCH
By: XXXX XXXXX DE CARTERET
FORTIS BANK (NEDERLAND) N.V.
By: XXXX XXXXX DE CARTERET
ING BANK N.V.
By: XXXX XXXXX DE CARTERET
THE ROYAL BANK OF SCOTLAND PLC
By: XXXX XXXXX DE CARTERET
TD BANK EUROPE LIMITED
By: XXXX XXXXX DE CARTERET
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150
THE FRONTING BANK
CHASE MANHATTAN BANK AG
By: XXXX XXXXX DE CARTERET
THE OVERDRAFT BANK
CHASE MANHATTAN BANK AG
By: XXXX XXXXX DE CARTERET
THE BANKS
BARCLAYS BANK PLC
By: XXXX XXXXX DE CARTERET
DRESDNER BANK AG IN HAMBURG
By: XXXX XXXXX DE CARTERET
FORTIS BANK (NEDERLAND) N.V.
By: XXXX XXXXX DE CARTERET
ING BANK N.V.
By: XXXX XXXXX DE CARTERET
NB INTERNATIONAL FINANCE B.V.
By: XXXX XXXXX DE CARTERET
THE CHASE MANHATTAN BANK, LONDON BRANCH
By: XXXX XXXXX DE CARTERET
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000
XXX XXXXX XXXX XX XXXXXXXX PLC
By: XXXX XXXXX DE CARTERET
THE TORONTO-DOMINION BANK
By: XXXX XXXXX DE CARTERET
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