Senior Facilities Agreement

Senior Facilities Agreement Virgin Media Inc. as Ultimate Parent Virgin Media Finance PLC as Parent Virgin Media Investment Holdings Limited Virgin Media Limited Virgin Media Wholesale Limited VMIH Sub Limited Virgin Media SFA Finance Limited as Original ...

Exhibit 10.1

 

Form of Senior Facilities Agreement, dated March 16, 2010, as amended and restated on March 26, 2010, February 15, 2011 and May [·], 2011.

 



 

Senior Facilities Agreement

 

 

Virgin Media Inc.

as Ultimate Parent

 

Virgin Media Finance PLC

as Parent

 

Virgin Media Investment Holdings Limited

Virgin Media Limited

Virgin Media Wholesale Limited

VMIH Sub Limited

Virgin Media SFA Finance Limited

as Original Borrowers

 

The Original Guarantors

 

 

Deutsche Bank AG, London Branch

BNP Paribas London Branch

as Global Coordinators and Physical Bookrunners

 

Deutsche Bank AG, London Branch

BNP Paribas London Branch

Crédit Agricole Corporate and Investment Bank

GE Corporate Finance Bank SAS

Goldman Sachs International

J.P. Morgan PLC

Lloyds TSB Corporate Markets

Merrill Lynch International

The Royal Bank of Scotland plc

UBS Limited

as Bookrunners and Mandated Lead Arrangers

 

Deutsche Bank AG, London Branch

as Facility Agent and Security Trustee

 

The Lenders

and

Deutsche Bank AG, London Branch

as Original L/C Bank

 

 

Dated 16 March 2010 as amended and restated on 26 March 2010,

15 February 2011 and [·] 2011

 



 

TABLE OF CONTENTS

 

1.

DEFINITIONS AND INTERPRETATION

2

 

 

 

2.

THE FACILITIES

62

 

 

 

3.

CONDITIONS

69

 

 

 

4.

UTILISATION

70

 

 

 

5.

DOCUMENTARY CREDITS

72

 

 

 

6.

ANCILLARY FACILITIES

78

 

 

 

7.

OPTIONAL CURRENCIES

83

 

 

 

8.

REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS

84

 

 

 

9.

REPAYMENT OF TERM FACILITY OUTSTANDINGS

85

 

 

 

10.

CANCELLATION

86

 

 

 

11.

VOLUNTARY PREPAYMENT

88

 

 

 

12.

MANDATORY PREPAYMENT AND CANCELLATION

91

 

 

 

13.

INTEREST ON REVOLVING FACILITY ADVANCES

91

 

 

 

14.

INTEREST ON TERM FACILITY ADVANCES

93

 

 

 

15.

MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES

96

 

 

 

16.

COMMISSIONS AND FEES

98

 

 

 

17.

TAXES

99

 

 

 

18.

INCREASED COSTS

105

 

 

 

19.

ILLEGALITY

106

 

 

 

20.

MITIGATION

107

 

 

 

21.

REPRESENTATIONS AND WARRANTIES

108

 

 

 

22.

FINANCIAL INFORMATION

116

 

 

 

23.

FINANCIAL CONDITION

122

 

 

 

24.

POSITIVE UNDERTAKINGS

131

 

 

 

25.

NEGATIVE UNDERTAKINGS

140

 

 

 

26.

ACCEDING GROUP COMPANIES

164

 

 

 

27.

EVENTS OF DEFAULT

165

 

i



 

28.

DEFAULT INTEREST

170

 

 

 

29.

GUARANTEE AND INDEMNITY

171

 

 

 

30.

ROLE OF THE FACILITY AGENT, THE ARRANGERS, THE L/C BANKS AND OTHERS

175

 

 

 

31.

BORROWERS’ INDEMNITIES

183

 

 

 

32.

CURRENCY OF ACCOUNT

183

 

 

 

33.

PAYMENTS

184

 

 

 

34.

SET-OFF

187

 

 

 

35.

SHARING AMONG THE RELEVANT FINANCE PARTIES

187

 

 

 

36.

CALCULATIONS AND ACCOUNTS

189

 

 

 

37.

ASSIGNMENTS AND TRANSFERS

190

 

 

 

38.

DEBT PURCHASE TRANSACTIONS

197

 

 

 

39.

COSTS AND EXPENSES

199

 

 

 

40.

REMEDIES AND WAIVERS

200

 

 

 

41.

NOTICES AND DELIVERY OF INFORMATION

201

 

 

 

42.

ENGLISH LANGUAGE

203

 

 

 

43.

PARTIAL INVALIDITY

204

 

 

 

44.

AMENDMENTS

204

 

 

 

45.

THIRD PARTY RIGHTS

208

 

 

 

46.

COUNTERPARTS

208

 

 

 

47.

GOVERNING LAW

208

 

 

 

48.

JURISDICTION

208

 

 

 

SCHEDULE 1

210

 

 

 

 

PART 1 - LENDERS AND COMMITMENTS

210

 

 

 

 

PART 2 - LENDERS TAX STATUS

211

 

 

 

SCHEDULE 2

212

 

 

 

 

PART 1 - THE ORIGINAL GUARANTORS

212

 

 

 

 

PART 2 - THE RESTRICTED GUARANTORS

224

 

 

 

 

PART 3 - MEMBERS OF THE BANK GROUP

227

 

 

 

SCHEDULE 3

242

 

ii



 

 

PART 1 - CONDITIONS PRECEDENT TO FIRST UTILISATION

242

 

 

 

 

PART 2 - CONDITIONS SUBSEQUENT DOCUMENTS

246

 

 

 

 

PART 3 - FORM OF OFFICER’S CERTIFICATE

247

 

 

 

SCHEDULE 4

249

 

 

 

 

PART 1 - FORM OF UTILISATION REQUEST (ADVANCES)

249

 

 

 

 

PART 2 - FORM OF UTILISATION REQUEST (DOCUMENTARY CREDITS)

251

 

 

 

SCHEDULE 5

253

 

 

 

 

PART 1 - FORM OF DEED OF TRANSFER AND ACCESSION

253

 

 

 

 

PART 2 - FORM OF B FACILITY ACCESSION DEED

260

 

 

 

 

PART 3 - FORM OF ACCESSION NOTICE

265

 

 

 

 

PART 4 - ACCESSION DOCUMENTS

269

 

 

 

SCHEDULE 6

271

 

 

 

 

PART 1 — FORM OF ADDITIONAL FACILITY ACCESSION DEED

271

 

 

 

 

PART 2 - CONDITIONS PRECEDENT TO ADDITIONAL FACILITY UTILISATION

276

 

 

 

 

PART 3 - FORM OF ADDITIONAL FACILITY OFFICER’S CERTIFICATE

277

 

 

 

SCHEDULE 7 MANDATORY COST FORMULA

278

 

 

 

SCHEDULE 8 FORM OF COMPLIANCE CERTIFICATE

281

 

 

 

SCHEDULE 9 ORIGINAL SECURITY DOCUMENTS

283

 

 

 

SCHEDULE 10

287

 

 

 

 

PART 1 - EXISTING ENCUMBRANCES

287

 

 

 

 

PART 2 - EXISTING LOANS

295

 

 

 

 

PART 3 - EXISTING FINANCIAL INDEBTEDNESS

297

 

 

 

 

PART 4 - EXISTING PERFORMANCE BONDS

299

 

 

 

 

PART 5 - EXISTING UKTV GROUP LOAN STOCK

301

 

 

 

 

PART 6 - EXISTING HEDGE COUNTERPARTIES

302

 

 

 

 

PART 7 - EXISTING VENDOR FINANCING ARRANGEMENTS

303

 

 

 

SCHEDULE 11 FORM OF L/C BANK ACCESSION CERTIFICATE

304

 

 

 

SCHEDULE 12 FORM OF DOCUMENTARY CREDIT

306

 

 

 

SCHEDULE 13 FORM OF INCREASE CONFIRMATION

309

 

iii



 

SCHEDULE 14 FORM OF NOTIFIABLE DEBT PURCHASE TRANSACTION NOTICE

312

 

 

 

SCHEDULE 15 FORM OF RESIGNATION LETTER

313

 

 

 

SCHEDULE 16 PRO FORMA BANK GROUP FINANCIAL STATEMENTS

314

 

 

 

SCHEDULE 17 PRO FORMA BUDGET INFORMATION

317

 

iv



 

THIS AGREEMENT is dated 16 March 2010 as amended and restated on 26 March 2010 and 15 February 2011.

 

BETWEEN:

 

(1)                                    VIRGIN MEDIA INC., a company incorporated in the State of Delaware, United States of America, whose principal executive offices are located at 909 Third Avenue, Suite 2863, New York, NY 10022, United States of America (the “Ultimate Parent”);

 

(2)                                    VIRGIN MEDIA FINANCE PLC, a company incorporated in England and Wales with registered number 5061787 and having its registered office at 160 Great Portland Street, London W1W 5QA (the “Parent”);

 

(3)                                    VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED, a company incorporated in England and Wales with registered number 3173552 and having its registered office at 160 Great Portland Street, London W1W 5QA (“VMIH”);

 

(4)                                    VIRGIN MEDIA LIMITED, a company incorporated in England and Wales with registered number 2591237 and having its registered office at 160 Great Portland Street, London W1W 5QA;

 

(5)                                    VIRGIN MEDIA WHOLESALE LIMITED (formerly Telewest Communications Group Limited), a company incorporated in England and Wales with registered number 2514287 and having its registered office at 160 Great Portland Street, London W1W 5QA (“VM Wholesale”);

 

(6)                                    VMIH SUB LIMITED, a company incorporated in England and Wales with registered number 5316140 and having its registered office at 160 Great Portland Street, London W1W 5QA (“VMIH Sub”);

 

(7)                                    VIRGIN MEDIA SFA FINANCE LIMITED, a company incorporated in England and Wales with registered number 7176280 and having its registered office at 160 Great Portland Street, London W1W 5QA (“UK Newco”);

 

(8)                                    THE ORIGINAL GUARANTORS (as defined below);

 

(9)                                    DEUTSCHE BANK AG, LONDON BRANCH and BNP PARIBAS LONDON BRANCH  (each a “Physical Bookrunner” and together, the “Physical Bookrunners”);

 

(10)                              DEUTSCHE BANK AG, LONDON BRANCH and BNP PARIBAS LONDON BRANCH (each a “Global Coordinator” and together, the “Global Coordinators”);

 

(11)                              DEUTSCHE BANK AG, LONDON BRANCH BNP PARIBAS LONDON BRANCH, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, GE CORPORATE FINANCE BANK SAS, GOLDMAN SACHS INTERNATIONAL, J.P. MORGAN PLC, LLOYDS TSB CORPORATE MARKETS, MERRILL LYNCH INTERNATIONAL, THE ROYAL BANK OF SCOTLAND PLC and UBS LIMITED (each a “Bookrunner” and together, the “Bookrunners”);

 

(12)                              DEUTSCHE BANK AG, LONDON BRANCH BNP PARIBAS LONDON BRANCH, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, GE CORPORATE FINANCE BANK SAS, GOLDMAN SACHS INTERNATIONAL, J.P. MORGAN PLC, LLOYDS TSB CORPORATE MARKETS, MERRILL LYNCH INTERNATIONAL, THE ROYAL BANK OF SCOTLAND PLC and UBS LIMITED (each a “Mandated Lead Arranger” and together, the “Mandated Lead Arrangers”);

 

1



 

(13)                              DEUTSCHE BANK AG, LONDON BRANCH (as agent for and on behalf of the Relevant Finance Parties, the “Facility Agent”);

 

(14)                              DEUTSCHE BANK AG, LONDON BRANCH (as security trustee for and on behalf of the Relevant Finance Parties, the “Security Trustee”);

 

(15)                              THE LENDERS (as defined below); and

 

(16)                              DEUTSCHE BANK AG, LONDON BRANCH as L/C Bank (the “Original L/C Bank”).

 

1.                                         DEFINITIONS AND INTERPRETATION

 

1.1                                   Definitions

 

In this Agreement the following terms have the meanings set out below.

 

2014 High Yield Notes” means the Sterling denominated 9.75% senior notes due 2014, the dollar denominated 8.75% senior notes due 2014 and the euro denominated 8.75% senior notes due 2014, in each case, issued by the Parent.

 

2016 High Yield Notes” means the 9.125% dollar denominated senior notes due 2016, the 9.50% dollar denominated senior notes due 2016 and the 9.50% euro denominated senior notes due 2016, in each case, issued by the Parent.

 

80% Security Test” means, subject to Clause 24.12 (Further Assurance), the requirement that, save as otherwise provided in Clause 24.12 (Further Assurance), members of the Bank Group generating not less than 80% of Consolidated Operating Cashflow (excluding for the purposes of this calculation, any Consolidated Net Income attributable to any Joint Venture) have acceded as Guarantors to this Agreement and, in each case, granted Security pursuant to the Security Documents over all or substantially all of its assets, as tested by reference to each set of annual financial information relating to the Bank Group delivered to the Facility Agent pursuant to Clause 22.1 (Financial Statements).

 

A Facility” means the term loan facility granted to the Original Borrowers pursuant to Clause 2.1(a) (The Facilities).

 

A Facility Fee Letter” means the letter dated on or about the Original Execution Date from the Original Lenders to the Company in relation to the fees payable for providing the A Facility.

 

A Facility Margin” means, in relation to A Facility Advances, and subject to Clause 14.6 (Margin Ratchet for A Facility Advances, A1 Facility Advances and A2 Facility Advances), 3.50% per annum.

 

A Facility Outstandings” means, at any time, the aggregate principal amount of the A Facility Advances outstanding under this Agreement.

 

A Facility Repayment Instalment” shall have the meaning given to such term in Clause 9.1 (Repayment of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings) hereof.

 

A1 Facility” means the term loan facility granted to the Original Borrowers pursuant to Clause 2.1(a) (The Facilities).

 

2



 

A1 Facility Margin” means, in relation to A1 Facility Advances, and subject to Clause 14.6 (Margin Ratchet for A Facility Advances and A1 Facility Advances), 3.50% per annum.

 

A1 Facility Outstandings” means, at any time, the aggregate principal amount of the A1 Facility Advances outstanding under this Agreement.

 

A1 Facility Repayment Instalment” shall have the meaning given to such term in Clause 9.1 (Repayment of A Facility Outstandings and A1 Facility Outstandings).

 

A2 Facility” means the term loan facility granted to the Original Borrowers pursuant to Clause 2.1(a) (The Facilities).

 

A2 Facility Margin” means, in relation to A2 Facility Advances, and subject to Clause 14.6 (Margin Ratchet for A Facility Advances, A1 Facility Advances and A2 Facility Advances), 3.50% per annum.

 

A2 Facility Outstandings” means, at any time, the aggregate principal amount of the A2 Facility Advances outstanding under this Agreement.

 

A2 Facility Repayment Instalment” shall have the meaning given to such term in Clause 9.1 (Repayment of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings).

 

Acceding Borrower” means a member of the Bank Group which has complied with the requirements of Clause 26.1 (Acceding Borrowers).

 

Acceding Group Company” means an Acceding Borrower, an Acceding Guarantor or an Acceding Holding Company, as the context may require.

 

Acceding Guarantor” means any member of the Bank Group which has complied with the requirements of Clause 26.2 (Acceding Guarantors).

 

Acceding Holding Company” means any person which becomes the Holding Company of the Ultimate Parent and which has complied with the requirements of Clause 26.3 (Acceding Holding Company).

 

Acceding Obligors” means the Acceding Borrowers and the Acceding Guarantors.

 

Acceleration Date” means the date on which a written notice has been served under Clause 27.17 (Acceleration).

 

Acceptable Bank” means:

 

(a)                           a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or A3 or higher by Moody’s Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or

 

(b)                          any other bank or financial institution approved by the Facility Agent (in consultation with the Company).

 

Acceptable Hedging Agreement” means a Hedging Agreement entered into on the terms of the 1992 ISDA Master Agreement (Multicurrency-Cross Border) or the 2002 ISDA Master Agreement, each as published by ISDA, under which:

 

3



 

(a)                           if the 1992 Master Agreement is used, “Second Method” and either “Loss” or “Market Quotation” are specified as the payment method applicable;

 

(b)                          if the 2002 Master Agreement is used, the relevant agreement provides for two way payments;

 

(c)                           the governing Law is English or New York Law; and

 

(d)                          no credit support annex or credit support deed, each as published by ISDA, or other collateral posting provisions are incorporated.

 

Accession Notice” means a duly completed notice of accession in the form of Part 3 of Schedule 5 (Form of Accession Notice) with such changes as may be agreed between the Company and the Agent from time to time.

 

Accrued Amounts” has the meaning given to such term in Clause 37.14 (Pro Rata Interest Settlement).

 

Acquiree” has the meaning given to such term in Clause 25.13(m) (Acquisitions and Investments).

 

Act” means the Companies Act 2006 (as amended).

 

Additional Assets” means any property, stock or other assets to be used by any member of the Bank Group in the Group Business or any business whose primary operations are directly related to the Group Business.

 

Additional Facility” has the meaning given to such term in Clause 2.6 (Additional Facility).

 

Additional Facility Accession Deed” means an agreement in the form of Part 1 of Schedule 6.

 

Additional Facility Availability Period” means, in relation to an Additional Facility, the period specified in the Additional Facility Accession Deed for that Additional Facility.

 

Additional Facility Borrower” means any Borrower which becomes a borrower under any Additional Facility.

 

Additional Facility Commencement Date” has the meaning given to such term in Clause 2.6 (Additional Facility).

 

Additional Facility Lender” means a person which becomes a Lender under any Additional Facility in accordance with the terms of this Agreement.

 

Additional Facility Margin” means, in relation to any Additional Facility, the margin specified in and, if applicable, adjusted in accordance with the relevant Additional Facility Accession Deed.

 

Additional Facility Outstandings” means, at any time, the aggregate principal amount of any Additional Facility Advances outstanding under this Agreement.

 

Additional High Yield Notes” means any notes where the incurrence of any Financial Indebtedness under such notes would not result in the pro forma Leverage Ratio (after giving effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since

 

4



 

such date pursuant to Clause 25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) exceeding the ratio set out in Clause 25.4(p) (Financial Indebtedness) for the Quarter Date following such incurrence and:

 

(a)                           that are issued by the Parent  or the Ultimate Parent after the Original Execution Date pursuant to an Additional High Yield Offering;

 

(b)                          having a final maturity (with no sinking fund payments) of no earlier than 31 December 2015;

 

(c)                           in respect of which the “cross-default” event of default with respect to a default under other indebtedness shall be limited to cross-default to any payment default or cross-acceleration;

 

(d)                          that are unsecured, except that where such Additional High Yield Notes are issued by the Ultimate Parent, they may be secured by a pledge of the shares in the Parent or one of its parent companies if such Additional High Yield Notes are unable to receive the benefit of the subordinated guarantees of the Company and/or Intermediate Holdco contemplated by paragraph (e) below, for tax or other reasons as reasonably determined by the Company;

 

(e)                           that, if guaranteed, are not guaranteed by any member of the Bank Group other than the Company and/or Intermediate Holdco, provided that any such guarantee or guarantees so provided are (i) granted on subordination and release terms substantially the same as the existing guarantees of the Company and Intermediate Holdco in favour of the Existing High Yield Notes and (ii) subject to the terms of the HYD Intercreditor Agreement or a Supplemental HYD Intercreditor Agreement; and

 

(f)                             that are designated as “Additional High Yield Notes” and “Parent Debt” by written notice from the Company to the Facility Agent and the Security Trustee by the date when the consolidated financial statements are due to be provided pursuant to clause 22.1(a) (Financial Statements) for the first full Financial Quarter after the issuance of the relevant notes.

 

Additional High Yield Offering means one or more offerings of the Additional High Yield Notes on a registration statement filed with the SEC or pursuant to an exemption from registration under the United States Securities Act of 1933, as amended, including pursuant to Rule 144A and/or Regulation S under the United States Securities Act of 1933, as amended.

 

Additional Senior Secured Notes” means any notes where the incurrence of any Financial Indebtedness under such notes would not result in (i) the pro forma Leverage Ratio (giving effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) exceeding the ratio set out in Clause 25.4(p) (Financial Indebtedness) for the Quarter Date following such incurrence and (ii) the pro forma ratio of Consolidated Senior Net Debt (giving effect to such incurrence and the use of proceeds thereof and giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) to Consolidated Operating Cashflow for the Quarter Date prior to such incurrence exceeding the ratio set out in Clause 25.2(o) (Negative Pledge) for the Quarter Date following such incurrence and:

 

5



 

(a)                           that are issued by the Parent, VMIH or any SSN Finance Subsidiary after the Original Execution Date;

 

(b)                          having a final maturity (with no sinking fund payments) of no earlier than 31 December 2015;

 

(c)                           in respect of which the “cross-default” event of default with respect to a default under other indebtedness shall be limited to cross-default to any payment default or cross-acceleration;

 

(d)                          in respect of which some or all of the Obligors have granted security and guarantees on the terms specified in the Group Intercreditor Agreement and substantially the same as to the Existing Senior Secured Notes; and

 

(e)                           that are designated as (i) “Senior Secured Notes” by written notice from the Company to the Facility Agent, (ii) “New Senior Liabilities” under the Group Intercreditor Agreement by written notice from the Company to the Facility Agent and the Security Trustee, and (iii) “Designated Senior Liabilities” under the HYD Intercreditor Agreement, in each case, by the date when the consolidated financial statements are due to be provided pursuant to clause 22.1(a) (Financial Statements) for the first full Financial Quarter after the issuance of the relevant notes.

 

Adjusted Excess Cashflow” means Excess Cashflow multiplied by the Relevant Proportion.

 

Advance” means:

 

(a)                           when designated “A Facility”, the principal amount of each advance made or to be made under the A Facility or arising in respect of the A Facility under Clause 14.3 (Consolidation and Division of Term Facility Advances);

 

(b)                          when designated “A1 Facility”, the principal amount of each advance arising in respect of the A1 Facility under Clause 2.3 (Roll Effective Date) or under Clause 14.3 (Consolidation and Division of Term Facility Advances);

 

(c)                           when designated “A2 Facility”, the principal amount of each advance arising in respect of the A2 Facility under Clause 2.3 (Roll Effective Date) or under Clause 14.3 (Consolidation and Division of Term Facility Advances);

 

(d)                          when designated “B Facility”, the principal amount of each advance made or to be made under a B Facility or arising in respect of a B Facility under Clause 14.3 (Consolidation and Division of Term Facility Advances);

 

(e)                           when designated “B1 Facility”, the principal amount of each advance arising in respect of the B1 Facility under Clause 2.3 (Roll Effective Date) or under Clause 14.3 (Consolidation and Division of Term Facility Advances);

 

(f)                             when designated “Revolving Facility”, the principal amount of each advance made or to be made under the Revolving Facility (but excluding for the purposes of this definition, any utilisation of the Revolving Facility by way of Ancillary Facility or Documentary Credit);

 

(g)                          when designated “Additional Facility”, the principal amount of each advance made or to be made under an Additional Facility or arising in respect of an Additional Facility under Clause 14.3 (Consolidation and Division of Term Facility Advances); or

 

6



 

(h)                          without any such designation, the “A Facility Advance”, the “A1 Facility Advance”, the “A2 Facility Advance”, the “Additional Facility Advance”, the “B Facility Advance”, the “B1 Facility Advance” and/or the “Revolving Facility Advance”, as the context requires,

 

in each case as from time to time reduced by repayment or prepayment.

 

Affected Documentary Credit” has the meaning given to such terms in Clause 19.2 (Illegality in Relation to an L/C Bank).

 

Affiliate” means, in relation to a person, any other person directly or indirectly controlling, controlled by or under direct or indirect common control with that person, and for these purposes “control” shall be construed so as to mean the ownership, either directly or indirectly and legally or beneficially, of more than 50% of the issued share capital of a company or the ability to control, either directly or indirectly, the affairs or the composition of the board of directors (or equivalent of it) of a company and “controlling”, “controlled by” and “under common control with” shall be construed accordingly.

 

Agreed Business Plan” means the business plan, financial model and analysis of the future funding requirements of the Company and the Bank Group prepared by the Company and delivered to the Global Coordinators, in the agreed form, prior to the initial Utilisation Date.

 

Alternative Market Disruption Event” has the meaning given to such term in Clause 15.2(c) (Market Disruption).

 

Alternative Reference Bank Rate” has the meaning given to such term in Clause 15.3(b) (Alternative Reference Bank Rate).

 

Alternative Reference Banks” means, in relation to an Advance in a currency other than euro, the principal London offices of JPMorgan Chase Bank, N.A. and The Royal Bank of Scotland and, in relation to an Advance in euro, the principal offices in London of Crédit Agricole or such other banks as may be appointed by the Facility Agent with the consent of the Company.

 

Amendment Execution Date” means 15 February 2011.

 

Amortisation Repayment Date” has the meaning given to such term in Clause 9.1 (Repayment of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings).

 

Ancillary Facility” means any:

 

(a)                           overdraft, automated payment, cheque drawing or other current account facility;

 

(b)                          forward foreign exchange facility;

 

(c)                           derivatives facility;

 

(d)                          guarantee, bond issuance, documentary or stand-by letter of credit facility;

 

(e)                           performance bond facility; and/or

 

7



 

(f)                             such other facility or financial accommodation as may be required in connection with the Group Business and which is agreed in writing between the relevant Borrowers and the relevant Ancillary Facility Lender.

 

Ancillary Facility Commitment” means, in relation to an Ancillary Facility Lender at any time, and save as otherwise provided in this Agreement, the maximum Sterling Amount to be made available under an Ancillary Facility granted by it, to the extent not cancelled or reduced or transferred pursuant to the terms of such Ancillary Facility or under this Agreement.

 

Ancillary Facility Documents” means the documents and other instruments pursuant to which an Ancillary Facility is made available and the Ancillary Facility Outstandings under it are evidenced.

 

Ancillary Facility Lender” means any Lender which has notified the Facility Agent that it has agreed to its nomination in a Conversion Notice to be an Ancillary Facility Lender in respect of an Ancillary Facility granted pursuant to the terms of this Agreement.

 

Ancillary Facility Outstandings” means (without double counting), at any time with respect to an Ancillary Facility Lender and each Ancillary Facility provided by it, the aggregate of:

 

(a)                           all amounts of principal then outstanding under any overdraft, automated payment, cheque drawing or other current account facility (determined in accordance with the applicable terms) as at such time; and

 

(b)                          in respect of any other facility or financial accommodation, such other amount as fairly represents the aggregate potential exposure of that Ancillary Facility Lender with respect to it under its Ancillary Facility, as reasonably determined by that Ancillary Facility Lender from time to time in accordance with its usual banking practices for facilities or accommodation of the relevant type (including without limitation, the calculation of exposure under any derivatives facility by reference to the mark-to-market valuation of such transaction at the relevant time).

 

Ancillary Facility Termination Date” has the meaning given to such term in paragraph (g) of Clause 6.1 (Utilisation of Ancillary Facilities).

 

Anti-Terrorism Laws” mean:

 

(a)                           Executive Order No. 13224 of September 23, 2001 - Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism (the “Executive Order”);

 

(b)                          the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act); and

 

(c)                           the Money Laundering Control Act of 1986, Public Law 99-570.

 

Applicable Margin” means, at any time, the prevailing A Facility Margin, A1 Facility Margin, A2 Facility Margin, Additional Facility Margin, B Facility Margin, B1 Facility Margin or Revolving Facility Margin, as the context may require at the relevant time.

 

Arrangers” means the Global Coordinators, the Physical Bookrunners and the Mandated Lead Arrangers and “Arranger” means any of them.

 

8



 

Asset Passthrough” means a series of transactions between a Bank Holdco, one or more members of the Bank Group and an Asset Transferring Party where:

 

(a)                           in the case of an asset being transferred by a Bank Holdco to the Asset Transferring Party that asset:

 

(i)                              is first transferred by such Bank Holdco to a member of the Bank Group; and

 

(ii)                           may then be transferred between various members of the Bank Group, and is finally transferred (insofar as such transaction relates to the Bank Group) to an Asset Transferring Party; or

 

(b)                          in the case of an asset being transferred by an Asset Transferring Party to a Bank Holdco, that asset:

 

(i)                              is first transferred by that Asset Transferring Party to a member of the Bank Group; and

 

(ii)                           may then be transferred between various members of the Bank Group, and is finally transferred (insofar as such transaction relates to the Bank Group) to such Bank Holdco,

 

and where the purpose of each such asset transfer is, in the case of an Asset Passthrough of the type described in paragraph (a) above, to enable a Bank Holdco to indirectly transfer assets (other than cash) to that Asset Transferring Party and, in the case of an Asset Passthrough of the type described in paragraph (b) above, is to enable an Asset Transferring Party to indirectly transfer assets (other than cash) to a Bank Holdco, in either case, by way of transfers of those assets to and from (and, if necessary, between) one or more members of the Bank Group in such a manner as to be neutral to the Bank Group taken as a whole provided that:

 

(w)                        the consideration payable (if any) by the first member of the Bank Group to acquire such assets comprises either (i) cash funded or to be funded directly or indirectly by a payment from (in the case of an Asset Passthrough of the type described in paragraph (a) above) the Asset Transferring Party and (in the case of an Asset Passthrough of the type described in paragraph (b) above) a Bank Holdco, in either case, in connection with that series of transactions or (ii) Subordinated Funding or (iii) the issue of one or more securities;

 

(x)                            the consideration payable by (in the case of an Asset Passthrough of the type described in paragraph (a) above) the Asset Transferring Party is equal to the consideration received or receivable by a Bank Holdco and (in the case of an Asset Passthrough of the type described in paragraph (b) above) by a Bank Holdco is equal to the consideration received or receivable by the Asset Transferring Party (and for this purpose, a security issued by one company shall constitute equal consideration to a security issued by another company where such securities have been issued on substantially the same terms and subject to the same conditions);

 

(y)                          all of the transactions comprising such a series of transactions (from and including the transfer of the assets by a Bank Holdco to and including the acquisition of those assets by the Asset Transferring Party or vice versa) are completed within two Business Days; and

 

(z)                            upon completion of all of the transactions comprising such a series of transactions, no person (other than another member of the Bank Group) has any recourse to any

 

9



 

member of the Bank Group and no member of the Bank Group which is not an Obligor may have any recourse to an Obligor, in each case in relation to such a series of transactions (other than in respect of (i) the Subordinated Funding or any rights and obligations under the securities, in each case, mentioned in paragraph (w) above and (ii) covenants as to title provided, in the case of an Asset Passthrough of the type described in paragraph (a) above, in favour of the Asset Transferring Party on the same terms as such covenants were provided by the Bank Holdco in respect of the relevant assets and, in the case of an Asset Passthrough of the type described in paragraph (b) above, in favour of the Bank Holdco on the same terms as such covenants were provided by the Asset Transferring Party in respect of the relevant assets).

 

Asset Securitisation Subsidiary” means any Subsidiary engaged solely in the business of effecting or facilitating any asset securitisation programme or programmes or one or more receivables factoring transactions.

 

Asset Transferring Party” means the member of the Group (or any person in which a member of the Bank Group owns an interest but which is not a member of the Group), other than a member of the Bank Group (except where the asset being transferred is a security where such member of the Group may be a member of the Bank Group), who is the initial transferor or final transferee in respect of a transfer to or from a Bank Holdco, as the case may be, through one or more members of the Bank Group.

 

Attached Working Paper” has the meaning given to such term in Clause 22.5(a) (Compliance Certificates).

 

Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

 

Available A Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its A Facility Commitment at such time less the Sterling Amount of its share of the A Facility Advances made under this Agreement, adjusted to take account of:

 

(a)                           any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any A Facility Commitment, in each case, pursuant to the terms of this Agreement; and

 

(b)                          in the case of any proposed Advance, the Sterling Amount of its share of such A Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,

 

provided always that such amount shall not be less than zero.

 

Available A1 Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its A1 Facility Commitment at such time less the Sterling Amount of its share of the A1 Facility Advances made under this Agreement, adjusted to take account of any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any A1 Facility Commitment, in each case, pursuant to the terms of this Agreement provided always that such amount shall not be less than zero.

 

“Available A2 Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its A2 Facility Commitment at such time less the Sterling Amount of its share of the A2 Facility Advances made under this Agreement, adjusted to take account of any cancellation or reduction of, or any transfer by such Lender

 

10



 

or any transfer to it of, any A2 Facility Commitment, in each case, pursuant to the terms of this Agreement provided always that such amount shall not be less than zero.

 

Available Additional Facility Commitment” means, in relation to a Lender and an Additional Facility, at any time and save as otherwise provided in this Agreement, its Additional Facility Commitment in relation to that Additional Facility at such time less the Sterling Amount of its share of the Additional Facility Advances made under that Additional Facility, adjusted to take account of:

 

(a)                           any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any Additional Facility Commitment in relation to that Additional Facility, in each case, pursuant to the terms of this Agreement; and

 

(b)                          in the case of any proposed Advance under that Additional Facility, the Sterling Amount of its share of such Additional Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,

 

provided always that such amount shall not be less than zero.

 

Available Ancillary Facility Commitment” means, in relation to an Ancillary Facility Lender and an Ancillary Facility granted by it at any time, and save as otherwise provided in this Agreement or in the applicable Ancillary Facility Documents, its Ancillary Facility Commitment at such time, less the Sterling Amount of the relevant Ancillary Facility Outstandings at such time, provided always that such amount shall not be less than zero.

 

Available B Facility Commitment” means, in relation to a Lender and a B Facility, at any time and save as otherwise provided in this Agreement, its B Facility Commitment in relation to that B Facility at such time less the Sterling Amount of its share of the B Facility Advances made under that B Facility, adjusted to take account of:

 

(a)                           any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any B Facility Commitment in relation to that B Facility, in each case, pursuant to the terms of this Agreement; and

 

(b)                          in the case of any proposed Advance under that B Facility, the Sterling Amount of its share of such B Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,

 

provided always that such amount shall not be less than zero.

 

Available B1 Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its B1 Facility Commitment at such time less the Sterling Amount of its share of the B1 Facility Advances made under this Agreement, adjusted to take account of any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any B1 Facility Commitment, in each case, pursuant to the terms of this Agreement provided always that such amount shall not be less than zero.

 

Available Commitment” means, in relation to a Lender, the aggregate amount of its Available A Facility Commitments, its Available A1 Facility Commitments, its Available A2 Facility Commitments, its Available Additional Facility Commitments, its Available B Facility Commitments, its Available B1 Facility Commitments, its Available Revolving Facility Commitments and its Available Ancillary Facility Commitments, or, in the context of a particular Facility, its Available A Facility Commitments, its Available A1 Facility Commitments, its Available A2 Facility Commitments, its Available Additional Facility Commitments, its Available B Facility Commitments, its Available B1 Facility Commitments,

 

11



 

its Available Revolving Facility Commitments or its Available Ancillary Facility Commitments, as the context may require.

 

Available Facility” means, in relation to a Facility, at any time, the aggregate amount of the Available Commitments in respect of that Facility at that time.

 

Available Revolving Facility” means, at any time, the aggregate amount of the Available Revolving Facility Commitments.

 

Available Revolving Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its Revolving Facility Commitment at such time, less the Sterling Amount of its share of the Revolving Facility Outstandings, adjusted to take account of:

 

(a)                           any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, any Revolving Facility Commitment, in each case, pursuant to the terms of this Agreement; and

 

(b)                          in the case of any proposed Utilisation, the Sterling Amount of its share of (i) such Revolving Facility Advance and/or Documentary Credit which pursuant to any other Utilisation Request is to be made, or as the case may be, issued, and (ii) any Revolving Facility Advance and/or Documentary Credit which is due to be repaid or expire (as the case may be), in each case, on or before the proposed Utilisation Date,

 

provided always that such amount shall not be less than zero.

 

B Facility” means a term loan facility granted to the Company pursuant to the B Facility Accession Deed.

 

B Facility Accession Deed” means an accession agreement dated 12 April 2010 between the Company and the Facility Agent.

 

B Facility Fee Letter” means any fee letter entered into between the Company and any B Facility Lenders in relation to the fees payable for providing a B Facility.

 

B Facility Lender” means any person who has become a Lender in respect of any B Facility in accordance with the terms of this Agreement.

 

B Facility Margin” means, in relation to any B Facility, the margin specified and, if applicable, adjusted in accordance with the B Facility Accession Deed.

 

B Facility Outstandings” means, at any time, the aggregate principal amount of the B Facility Advances outstanding under this Agreement.

 

B Facility Syndication Letter” means the letter dated on or about the Original Execution Date from the Global Coordinators, Physical Bookrunners, Bookrunners and Mandated Lead Arrangers to the Company in relation to the syndication of the B Facilities.

 

B1 Facility” means a term loan facility granted to the Company pursuant to Clause 2.1(b) (The Facilities).

 

B1 Facility Lender” means any person who has become a Lender in respect of any B1 Facility in accordance with the terms of this Agreement.

 

12



 

B1 Facility Margin” means, in relation to the B1 Facility, the margin applicable to the B Facility specified and, if applicable, adjusted in accordance with the B Facility Accession Deed.

 

B1 Facility Outstandings” means, at any time, the aggregate principal amount of the B1 Facility Advances outstanding under this Agreement.

 

Bank Group” means:

 

(a)                           for the purposes of the definition of “Bank Group Consolidated Revenues”, Clause 22.1 (Financial Statements), Clause 22.3 (Budget) and Clause 23 (Financial Condition) and any other provisions of this Agreement using the terms defined in Clause 23 (Financial Condition):

 

(i)                              the Company;

 

(ii)                           NTL South Herts, for so long as a member of the Bank Group is the general partner of South Hertfordshire United Kingdom Fund, Ltd or if it becomes a wholly-owned Subsidiary of the Company;

 

(iii)                        NTL Fawnspring Limited, for so long as it is a Subsidiary of the Company;

 

(iv)                       each of the Company’s other direct and indirect Subsidiaries from time to time, excluding the Bank Group Excluded Subsidiaries; and

 

(v)                          without prejudice to sub-paragraph (iv) above, each of the direct and indirect Subsidiaries from time to time of Virgin Media Communications, excluding any Subsidiary thereof which has a direct or indirect interest in the Company;

 

(b)                          for all other purposes:

 

(i)                              the Company and each of its direct and indirect Subsidiaries from time to time, other than the Bank Group Excluded Subsidiaries; and

 

(ii)                           each of the direct and indirect Subsidiaries from time to time of Virgin Media Communications to the extent not already included by virtue of sub-paragraph (i) above, excluding any Subsidiary thereof which has a direct or indirect interest in the Company,

 

but excluding for all purposes under paragraphs (a) and (b) above any Permitted Joint Ventures.

 

For information purposes only, the members of the Bank Group as at the Original Execution Date for the purposes of paragraph (b) above are listed in Part 3 of Schedule 2 (Members of the Bank Group).

 

Bank Group Cash Flow” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Bank Group Consolidated Revenues” means, in respect of any period, the consolidated revenues for the Bank Group for that period as evidenced by the financial information provided in respect of that period pursuant to Clause 22.1 (Financial Statements).

 

13



 

Bank Group Excluded Subsidiary” means:

 

(a)                           any Subsidiary of the Company or Virgin Media Communications which is a Dormant Subsidiary and which is not a Guarantor;

 

(b)                          NTL Fawnspring Limited;

 

(c)                           NTL South Herts and its Subsidiaries, until such time as NTL South Herts becomes a wholly-owned Subsidiary of the Company;

 

(d)                          any Subsidiary of the Company or Virgin Media Communications which is a Project Company;

 

(e)                           any Asset Securitisation Subsidiary; and

 

(f)                             any company which becomes a Subsidiary of the Parent or Virgin Media Communications in each case, after the Original Execution Date pursuant to an Asset Passthrough,

 

provided that any Bank Group Excluded Subsidiary may, at the election of the Parent and upon not less than 10 Business Days prior written notice to the Facility Agent, cease to be a Bank Group Excluded Subsidiary and become a member of the Bank Group.

 

Bank Holdco” means a direct Holding Company of a member of the Bank Group which is not a member of the Bank Group.

 

Barclays Intercreditor Agreement” has the meaning given to such term in the Group Intercreditor Agreement.

 

Basel II” has the meaning given to such term in Clause 18.3(f) (Exceptions).

 

Basel III” means the Basel Committee on Banking Supervision’s (the “Committee”) revised rules relating to capital requirements set out in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Guidance for national authorities operating the countercyclical capital buffer” and “Basel III: International framework for liquidity risk measurement, standards and monitoring” published by the Committee in December 2010 and any other documents published by the Committee in connection with these rules, or any other law or regulation which implements any of those rules or documents (whether such implementation, application or compliance is by a government, regulator, Relevant Finance Party or any of its Affiliates).

 

BBA LIBOR” means in relation to LIBOR, the British Bankers Association Interest Settlement Rate for the relevant currency and Interest Period displayed on the appropriate page of the Reuters screen.  If the agreed page is replaced or service ceases to be available, the Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Lenders.

 

BBC Guarantees” means the guarantees required to be given by the Borrowers in favour of BBC Worldwide Limited pursuant to the shareholder agreements relating to the UKTV Joint Ventures.

 

Beneficiary” means a beneficiary in respect of a Documentary Credit.

 

Borrowers” means the Original Borrowers and any Acceding Borrower.

 

14



 

Break Costs” means the amount (if any) by which:

 

(a)                           the interest (excluding the Applicable Margin and Mandatory Cost) which a Lender should have received for the period from the date of receipt of all or any part of its participation in an Advance or Unpaid Sum to the last day of the current Interest Period or Term in respect of that Advance or Unpaid Sum, had the amount so received been paid on the last day of that Interest Period or Term;

 

exceeds:

 

(b)                          the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of such Advance or Unpaid Sum received or recovered by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following such receipt or recovery and ending on the last day of the current Interest Period or Term.

 

Budget” means in respect of any financial year commencing after 31 December 2010, the budget for such financial year, in the form and including the information required to be delivered by the Company to the Facility Agent pursuant to Clause 22.3 (Budget).

 

Business Day” means a day (other than a Saturday or Sunday) on which (a) banks generally are open for business in London and (b) if such reference relates to a date for the payment or purchase of any sum denominated in:

 

(a)                           euro (A) is a TARGET Day and (B) is a day on which banks generally are open for business in the financial centre selected by the Facility Agent for receipt of payments in euro; or

 

(b)                          in a currency other than euro, banks generally are open for business in the principal financial centre of the country of such currency.

 

Business Division Transaction” means any sale, transfer, demerger, contribution, spin off or distribution of, any creation or participation in any joint venture and/or entering into any other transaction or taking any action with respect to, in each case, any assets, undertakings and/or businesses of the Group which comprise all or part of the Virgin Media business division (or its predecessors or successors), to or with any other entity or person, whether or not within the Group or the Bank Group, in each case, where such transaction has the prior approval of an Instructing Group.

 

Captive Insurance Company” means any captive insurance company for the Group (or any part thereof, which includes the Bank Group).

 

Cash” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Cash Equivalent Investment” means:

 

(a)                           debt securities which are freely negotiable and marketable:

 

(i)                              which mature not more than 12 months from the relevant date of calculation; and

 

(ii)                           which are rated at least A-1 by Standard & Poor’s or Fitch or P-1 by Moody’s;

 

(b)                          certificates of deposit of, or time deposits or overnight bank deposits with, any commercial bank whose short-term securities are rated at least A-2 by Standard and

 

15



 

Poor’s or Fitch or P-2 by Moody’s and having maturities of 12 months or less from the date of acquisition;

 

(c)                           commercial paper of, or money market accounts or funds with or issued by, an issuer rated at least A-2 by Standard & Poor’s or Fitch or P-2 by Moody’s and having an original tenor of 12 months or less;

 

(d)                          medium term fixed or floating rate notes of an issuer rated at least A-1 by Standard & Poor’s or Fitch or P-1 by Moody’s at the time of acquisition and having a remaining term of 12 months or less from the date of acquisition;

 

(e)                           any investment in a money market fund or enhanced yield fund (i) whose aggregate assets exceed £250 million and (ii) at least 90% of whose assets constitute Cash Equivalent Investments of the type described in paragraphs (a) to (d) of this definition;

 

(f)                             sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank; or

 

(g)                          any other debt security approved by the Instructing Group,

 

in each case, denominated in Sterling (or any other currency freely convertible into Sterling) and to which any member of the  Bank Group is alone (or together with other members of the Bank Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Bank Group or subject to any security (other than Security arising under the Security Documents).

 

Centre of Main Interests” has the meaning given to such term in Article 3(1) of Council Regulation (EC) NO 1346/2000 of 29 May 2000 on Insolvency Proceedings.

 

Change in Tax Law” means the introduction, implementation, repeal, withdrawal or change in, or in the interpretation, administration or application of any Law relating to taxation (a) in the case of a participation in an Advance by a Lender named in Part 1 of Schedule 1 (Lenders and Commitments) after the Original Execution Date, or (b) in the case of a participation in an Advance by any other Lender, after the date upon which such Lender becomes a party to this Agreement in accordance with the provisions of Clause 37 (Assignments and Transfers).

 

Change of Control” means the occurrence of any of the following events:

 

(a)                           any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this paragraph (a) such person or group shall be deemed to have “beneficial ownership” of all shares that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Ultimate Parent (for the purposes of this paragraph (a), such person shall be deemed to beneficially own any Voting Stock of an entity held by any other entity (the “parent entity”), if such other person is the beneficial owner (as defined in this paragraph (a)), directly or indirectly, of more than 50% of the voting power of the Voting Stock of such parent entity);

 

(b)                          during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors of the Ultimate Parent (together with any new directors whose election to such board of directors or whose nomination for election by the stockholders of the Ultimate Parent was approved by a vote of a majority of the

 

16



 

directors of the Ultimate Parent then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors of the Ultimate Parent then in office;

 

(c)                           the adoption of a plan relating to the liquidation or dissolution of the Ultimate Parent or the Company;

 

(d)                          the merger or consolidation of the Ultimate Parent or any other Virgin Media Holding Company with or into another person (other than the Ultimate Parent, any other Virgin Media Holding Company, the Company or any other wholly-owned Subsidiary of the Ultimate Parent) or the merger of another person (other than the Ultimate Parent, any Virgin Media Holding Company, the Company or any other wholly-owned Subsidiary of the Ultimate Parent) with or into the Ultimate Parent any other Virgin Media Holding Company or the sale of all or substantially all the assets of the Ultimate Parent, any other Virgin Media Holding Company, the Company or Intermediate Holdco to another person (other than the Ultimate Parent, any other Virgin Media Holding Company, the Company or any other wholly-owned Subsidiary of the Ultimate Parent), and, in the case of any such merger or consolidation, the securities of the Ultimate Parent or any other Virgin Media Holding Company that are outstanding immediately prior to such transaction are changed into or exchanged for cash, securities or other assets, unless pursuant to such transaction such securities are changed into or exchanged for, in addition to any other consideration, securities of the surviving person or transferee that represent immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving person or transferee;

 

(e)                           any change of control (howsoever defined) occurs under the indenture governing any High Yield Notes or any Senior Secured Notes and the holders of any notes thereunder have a right to cause the issuer to repurchase their notes as a result of such event;

 

(f)                             any of the Borrowers, the Parent, Virgin Media Secured Finance PLC or Intermediate Holdco, and in each case their successor, ceases to be a direct or indirect wholly-owned Subsidiary of the Ultimate Parent (other than as a result of a Solvent Liquidation of such person pursuant to Clause 25.18 (Internal Reorganisations));

 

(g)                          Intermediate Holdco ceases to be a direct wholly-owned Subsidiary of the Company; or

 

(h)                          any Material Subsidiary (other than Intermediate Holdco and the Company) ceases to be a wholly-owned Subsidiary (directly or indirectly) of Intermediate Holdco.

 

Notwithstanding the foregoing, a Change of Control shall not be deemed to have occurred if a Virgin Media Holding Company that is not then a Subsidiary of the Ultimate Parent becomes the ultimate parent of the Company and, if such Virgin Media Holding Company had been the Ultimate Parent, no Change of Control would have otherwise occurred; provided, however, that such Virgin Media Holding Company is or becomes an Obligor.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder.  Section references to the Code are to the Code, as in effect at the Original Execution Date and any subsequent provisions of the Code, amendatory of it, supplemental to it or substituted therefor.

 

17



 

Commitment” means:

 

(a)                           when designated “A Facility” save as otherwise provided in this Agreement:

 

(i)                              in relation to an Original Lender, the amount set opposite its name in the relevant column of Part 1 of Schedule 1 (Lenders and Commitments) and any amount of any other A Facility Commitment transferred to it under this Agreement or the amount assumed by it in accordance with Clause 2.2 (Increase); and

 

(ii)                           in relation to any other Lender, as specified in the Transfer Deed pursuant to which such Lender becomes a party to this Agreement and any amount of any other A Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase);

 

(b)                          when designated “A1 Facility” in relation to a Lender at any time, and save as otherwise set out in this Agreement, the amount of its A1 Facility Commitment as provided in Clause 2.3 (Roll Effective Date) and any amount of any other A1 Facility Commitment transferred to it under this Agreement or the amount assumed by it in accordance with Clause 2.2 (Increase);

 

(c)                           when designated “A2 Facility” in relation to a Lender at any time, and save as otherwise set out in this Agreement, the amount of its A2 Facility Commitment as provided in Clause 2.3 (Roll Effective Date) and any amount of any other A2 Facility Commitment transferred to it under this Agreement or the amount assumed by it in accordance with Clause 2.2 (Increase);

 

(d)                          when designated “Additional Facility” in relation to a Lender and an Additional Facility at any time and save as otherwise provided in this Agreement,

 

(i)                              the amount set opposite its name in the Additional Facility Accession Deed in relation to that Additional Facility and the amount of any other Additional Facility Commitment in relation to that Additional Facility transferred to it under this Agreement;

 

(ii)                           as specified in the Transfer Deed pursuant to which such Lender becomes a party to this Agreement; or

 

(iii)                        the amount assumed by it in accordance with Clause 2.2 (Increase);

 

(e)                           when designated “B Facility” in relation to a Lender and a B Facility at any time and save as otherwise provided in this Agreement:

 

(i)                              the amount set opposite its name in the B Facility Accession Deed in relation to that B Facility and the amount of any other B Facility Commitment in relation to that B Facility transferred to it under this Agreement;

 

(ii)                           as specified in the Transfer Deed pursuant to which such Lender becomes a party to this Agreement; or

 

(iii)                        the amount assumed by it in accordance with Clause 2.2 (Increase);

 

(f)                             when designated “B1 Facility” in relation to a Lender at any time, and save as otherwise set out in this Agreement, the amount of its B1 Facility Commitment as provided in Clause 2.3 (Roll Effective Date) and any amount of any other B1 Facility

 

18



 

Commitment transferred to it under this Agreement or the amount assumed by it in accordance with Clause 2.2 (Increase);

 

(g)                          when designated “Revolving Facility” save as otherwise provided in this Agreement,

 

(i)                              in relation to an Original Lender, the amount set opposite its name in the relevant column of Part 1 of Schedule 1 (Lenders and Commitments) and any amount of any other Revolving Facility Commitment transferred to it under this Agreement or the amount assumed by it in accordance with Clause 2.2 (Increase); and

 

(ii)                           in relation to any other Lender, as specified in the Transfer Deed pursuant to which such Lender becomes a party to this Agreement and any amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

 

in each case to the extent:

 

(i)                              not cancelled, reduced or transferred by it under this Agreement;

 

(ii)                           not deemed to be zero pursuant to Clause 38 (Debt Purchase Transactions); and

 

(iii)                        without any such designation, means “A Facility Commitment”, “A1 Facility Commitment”, “A2 Facility Commitment”, “Additional Facility Commitment”, “B Facility Commitment”, “B1 Facility Commitment” and “Revolving Facility Commitment”, as the context requires, and any “Commitment” means either each or any of the foregoing, as the context requires.

 

Company” means:

 

(a)                           VMIH; or

 

(b)                          following a solvent liquidation of VMIH, pursuant to the provisions of Clause 25.18 (Internal Reorganisations), NTL Finance Limited.

 

Company Materials” has the meaning given to such term in Clause 41.4(b) (Public Information).

 

Compliance Certificate” means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate) or such other similar form as the Facility Agent shall agree with the Company.

 

Confirmation Date” has the meaning given to such term in Clause 17.2(d) (Lender Tax Status).

 

Consolidated Debt Service” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Consolidated Net Debt” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Consolidated Net Income” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

19



 

Consolidated Operating Cashflow” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Consolidated Senior Debt” means, at any time (without double counting) the aggregate principal or capital amounts (including any Interest capitalised as principal) of Financial Indebtedness (as would be set forth on the balance sheet of the Group in accordance with GAAP) (i) of any member of the Bank Group which is secured on a pari passu basis with the Facilities pursuant to the terms of the Group Intercreditor Agreement or has second or other ranking security to the Security granted for the benefit of the Facilities (including, without limitation, Financial Indebtedness arising under or pursuant to the Relevant Finance Documents), (ii) of any member of the Bank Group arising under any finance or capital leases incurred in reliance on the basket provided for under Clause 25.4(j) (Financial Indebtedness) and (iii) of any member of the Bank Group excluding the Company and Intermediate Holdco (regardless of whether any such Financial Indebtedness is secured or not but excluding any Financial Indebtedness owed to any member of the Group under Clause 25.4(i) (Financial Indebtedness)), but excluding any Hedging Agreements that cover risks relating to Financial Indebtedness not included in this definition.

 

Consolidated Senior Net Debt” means, at any time, the Consolidated Senior Debt at such time less Cash.

 

Consolidated Total Debt” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Consolidated Total Net Cash Interest Payable” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Content” means any rights to broadcast, transmit, distribute or otherwise make available for viewing, exhibition or reception (whether in analogue or digital format and whether as a channel or an Internet service, a teletext-type service, an interactive service, or an enhanced television service or any part of any of the foregoing, or on a pay-per-view basis, or near video-on-demand, or video-on-demand basis or otherwise) any one or more of audio and/or visual images, audio content, or interactive content (including hyperlinks, re-purposed web-site content, database content plus associated templates, formatting information and other data including any interactive applications or functionality), text, data, graphics, or other content, by means of any means of distribution, transmission or delivery system or technology (whether now known or herein after invented).

 

Content Transaction” means any sale, transfer, demerger, contribution, spin-off or distribution of, any creation or participation in any joint venture and/or entering into any other transaction or taking any action with respect to, in each case, any assets, undertakings and/or businesses of the Group which comprise all or part of the Content business of the Group, to or with any other entity or person whether or not within the Group or Bank Group.

 

Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.

 

Conversion Notice” has the meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary Facilities).

 

Convertible Senior Notes” means the 6.50% convertible senior notes due 2016 issued by the Ultimate Parent.

 

Cost” means the cost estimated in good faith by the relevant member of the Bank Group to have been incurred or to be received by that member of the Bank Group in the provision or

 

20



 

receipt of the relevant service, facility or arrangement, including, without limitation, a proportion of any material employment, property, information technology, administration, utilities, transport and materials or other costs incurred or received in the provision or receipt of such service, facility or arrangement, but excluding costs which are either not material or not directly attributable to the provision or receipt of the relevant service, facility or arrangement.

 

CTA” means the Corporation Tax Act 2009.

 

Current Assets” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Current Liabilities” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Debt Purchase Transaction” means, in relation to a Person, a transaction where such Person:

 

(a)                           purchases by way of assignment or transfer;

 

(b)                          enters into any sub-participation in respect of; or

 

(c)                           enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,

 

any Commitment or amount outstanding under this Agreement.

 

Default” means an Event of Default or any event or circumstance which (with the expiry of a grace period, the giving of notice, the making of any determination under any of the Relevant Finance Documents or any combination of any of the foregoing) would be an Event of Default provided that in relation to any event which is subject to a materiality threshold or condition before such event would constitute an Event of Default, such default shall not constitute a Default until such materiality threshold or condition has been satisfied.

 

Defaulting Lender” means any Lender (other than a Lender which is or becomes a member of the Group):

 

(a)                           which has failed to make its participation in an Advance available or has notified the Facility Agent that it will not make its participation in an Advance available by the Utilisation Date of that Advance in accordance with Clause 4.2 (Lenders’ Participation) or has failed to provide cash collateral (or has notified an L/C Bank that it will not provide cash collateral) in accordance with Clause 5.8 (Cash Collateral by Non-Acceptable L/C Lender);

 

(b)                          which has otherwise rescinded or repudiated a Relevant Finance Document; or

 

(c)                           with respect to which an Insolvency Event has occurred and is continuing,

 

unless, in the case of paragraph (a) above:

 

(i)                              its failure to pay is caused by:

 

(A)                           administrative or technical error; or

 

(B)                             a Disruption Event; and

 

21



 

payment is made within two Business Days of its due date; or

 

(ii)                           the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Designated Gross Amount” has the meaning given to such term in Clause 6.1(b) (Utilisation of Ancillary Facilities).

 

Designated Net Amount” has the meaning given to such term in Clause 6.1(b) (Utilisation of Ancillary Facilities).

 

Designated Website” has the meaning given to such term in Clause 41.3(a) (Use of Websites/E-mail).

 

Disposal” means any sale, transfer, lease, surrender or other disposal by any member of the Bank Group of any shares in any of its Subsidiaries or all or any part of its revenues, assets, other shares, business or undertakings other than in the ordinary course of business or trade.

 

Disputes” has the meaning given to such term in Clause 48.1 (Courts).

 

Disruption Event” means either or both of:

 

(a)                           a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Relevant Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties to this Agreement; or

 

(b)                          the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Relevant Finance Party to this Agreement preventing that, or any other Relevant Finance Party:

 

(i)                              from performing its payment obligations under the Relevant Finance Documents; or

 

(ii)                           from communicating with other parties in accordance with the terms of the Relevant Finance Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.

 

Documentary Credit” means a letter of credit, bank guarantee, indemnity, performance bond or other documentary credit issued or to be issued by an L/C Bank pursuant to Clause 4.1 (Conditions to Utilisation).

 

Dormant Subsidiary” means a member of the Group which does not trade (for itself or as agent for any person) and does not own, legally or beneficially, assets (including, without limitation, indebtedness owed to it) which in aggregate have a value of more than £10,000 (excluding loans existing on the Original Execution Date owed to it by members of the Bank Group) or its equivalent in other currencies.

 

Double Taxation Treaty” means in relation to a payment of interest on an Advance made to any Borrower, any convention or agreement between the government of such Borrower’s Relevant Tax Jurisdiction and any other government for the avoidance of double taxation

 

22



 

with respect to taxes on income and capital gains which makes provision for exemption from tax imposed by such Borrower’s Relevant Tax Jurisdiction on interest.

 

Effective Date” has the meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary Facilities).

 

Encumbrance” means:

 

(a)                           a mortgage, charge, pledge, lien, assignation in security, standard security, encumbrance or other security interest securing any obligation of any person;

 

(b)                          any arrangement under which money or claims to, or the benefit of, a bank or other account may be applied, set off or made subject to a combination of accounts so as to effect payment of sums owed or payable to any person; or

 

(c)                           any other type of agreement or preferential arrangement (including title transfer and retention arrangements) having a similar effect.

 

Environment” means living organisms including the ecological systems of which they form part and the following media:

 

(a)                           air (including air within natural or man-made structures, whether above or below ground);

 

(b)                          water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

(c)                           land (including land under water).

 

Environmental Claim” means any administrative, regulatory or judicial action, suit, demand, demand letter, claim, notice of non-compliance or violation, investigation, proceeding, consent order or consent agreement relating to any Environmental Law or Environmental Licence.

 

Environmental Law” means all laws and regulations of any relevant jurisdiction which:

 

(a)                           have as a purpose or effect the protection of, and/or prevention of harm or damage to, the Environment;

 

(b)                          provide remedies or compensation for harm or damage to the Environment; or

 

(c)                           relate to Hazardous Substances or health or safety matters.

 

Environmental Licence” means any Authorisations required at any time under Environmental Law.

 

Equity Cure Right” has the meaning given to such term in Clause 23.3(a) (Equity Cure Right).

 

Equity Equivalent Funding” means a loan made to, or any Financial Indebtedness owed by, any person where the Financial Indebtedness incurred thereby:

 

(a)                           may not be repaid at any time prior to the repayment in full of all Outstandings and cancellation of all Available Commitments;

 

23



 

(b)                          carries no interest or carries interest which is payable only on non-cash pay terms or following repayment in full of all Outstandings and cancellation of all Available Commitments;

 

(c)                           is either (i) structurally and contractually subordinated to the Facilities or (ii) contractually subordinated to the Facilities, in each case, pursuant to the HYD Intercreditor Agreement and/or the Group Intercreditor Agreement; and

 

(d)                          if not already subject to Security created under the Original Security Documents, Security in favour of the Security Trustee on terms satisfactory to the Security Trustee is promptly granted by the relevant creditor over its rights with respect to any such Financial Indebtedness.

 

Equity Proceeds” means the cash proceeds raised by any member of the Group by way of equity securities offerings in the international or domestic public equity capital markets (after deducting all reasonable fees, commissions, costs and expenses incurred by any member of the Group in connection with such raising) but shall not include the cash proceeds of any offering of convertible notes or other equity-like or equity-linked instruments (including upon conversion or exchange thereunder).

 

ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued under it.  Section references to ERISA are to ERISA as in effect on the Original Execution Date.

 

ERISA Affiliate” means, in relation to a member of the Bank Group, each person (as defined in section 3(9) of ERISA) which together with that member of the Bank Group would be deemed to be a “single employer” within the meaning of section 414(b), (c), (m) or (o) of the Code.

 

EURIBOR” means, in relation to any amount to be advanced to or owed by an Obligor under this Agreement in euro on which interest for a given period is to accrue:

 

(a)                           the rate per annum for deposits in euro which appears on the Relevant Page for such period at or about 11.00 am (Brussels time) on the Quotation Date for such period; or

 

(b)                          if no such rate is displayed and the Facility Agent shall not have selected an alternative service on which such rate is displayed as contemplated by the definition of “Relevant Page”, the arithmetic mean (rounded upwards, if not already such a multiple, to 4 decimal places) of the rates (as notified to the Facility Agent) at which each of the Reference Banks was offering to prime banks in the European Interbank Market deposits in euro for such period at or about 11.00 am (Brussels time) on the Quotation Date for such period.

 

European Interbank Market” means the interbank market for euro operating in Participating Member States.

 

Event of Default” means any of the events or circumstances described as such in Clause 27 (Events of Default).

 

Excess Capacity Network Service” means the provision of network services, or agreement to provide network services, by a member of the Bank Group in favour of one or more other members of the Group where such network services are only provided in respect of the capacity available to such member of the Bank Group in excess of that network capacity it requires to continue to provide current services to its existing and projected future customers and to allow it to provide further services to both its existing and projected future customers.

 

24



 

Excess Cash Flow” means in relation to any financial year of the Company, Bank Group Cash Flow less (a) Consolidated Debt Service for such financial year, (b) the aggregate amount of all payments or prepayments of principal, whether voluntary or mandatory, of Consolidated Total Debt made in such financial year, (c) proceeds from disposals permitted by Clause 25.6(j) (Disposals) received during such financial year and (d) proceeds from any Content Transaction or any Business Division Transaction received during such financial year, provided that no such amounts prepaid and used in the calculation under paragraph (b) shall be available for reborrowing and, provided further that for the purposes of such calculation, no amount shall be included or excluded more than once.

 

Exchange Act” means the US Securities Exchange Act of 1934, as amended.

 

Excluded Group” means each member of the Group which is not a member of the Bank Group.

 

Excluded Group Operating Cashflow” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Existing Encumbrance” means any Encumbrance existing as at the Original Execution Date, details of which are set out in Part 1 of Schedule 10 (Existing Encumbrances).

 

Existing Financial Indebtedness” means the Financial Indebtedness existing as at the Original Execution Date, details of which are set out in Part 3 of Schedule 10 (Existing Financial Indebtedness).

 

Existing Hedging Agreements” means the hedging agreements with the Hedge Counterparties existing as at the Original Execution Date, details of which are set out in Part 6 of Schedule 10 (Existing Hedge Counterparties).

 

Existing High Yield Notes” means the 2014 High Yield Notes, the 2016 High Yield Notes, the 8.375% dollar denominated senior notes due 2019 and the 8.875% sterling denominated senior notes due 2019, in each case, issued by the Parent.

 

Existing Loans” means the loans granted by members of the Bank Group existing as at the Original Execution Date, details of which are set out in Part 2 of Schedule 10 (Existing Loans).

 

Existing Performance Bonds” means each of the performance bonds or similar obligations issued by members of the Bank Group existing as at the Original Execution Date, details of which are set out in Part 4 of Schedule 10 (Existing Performance Bonds).

 

Existing Senior Credit Facilities Agreement” means that certain senior credit facilities agreement dated 3 March 2006 and made between, inter alia, Virgin Media Inc. as Ultimate Parent, Virgin Media Finance PLC as Parent, Virgin Media Investment Holdings Limited, Telewest Communications Networks Limited and VMIH Sub Limited as UK Borrowers, Virgin Media Dover LLC as US Borrower, Deutsche Bank AG, London Branch, J.P. Morgan Plc, The Royal Bank of Scotland Plc and Goldman Sachs International as Bookrunners and Mandated Lead Arrangers, Deutsche Bank AG, London Branch as Facility Agent, Deutsche Bank AG, London Branch as Security Trustee, GE Corporate Banking Europe SAS as Administrative Agent and the financial and other institutions named in it as Lenders.

 

Existing Senior Secured Notes” means the 6.50% dollar denominated senior secured notes due 2018 and the 7.00% sterling denominated senior secured notes due 2018, in each case, issued by Virgin Media Secured Finance PLC.

 

25



 

Existing UKTV Group Loan Stock” means the loan stock and redeemable preference shares issued by members of the UKTV Group, details of which are set out in Part 5 of Schedule 10 (Existing UKTV Group Loan Stock).

 

Existing Vendor Financing Arrangements” means each of the existing finance leases and vendor financing arrangements existing as at the date of the Agreement, details of which are set out in Part 7 of Schedule 10 (Existing Vendor Financing Arrangements).

 

Expiry Date” means, in relation to any Documentary Credit granted under this Agreement, the date stated in it to be its expiry date or the latest date on which demand may be made under it being a date falling on or prior to the Final Maturity Date in respect of the Revolving Facility.

 

Facilities” means the A Facility, the A1 Facility, the A2 Facility, any Additional Facility, the B Facility, the B1 Facility, the Revolving Facility, any Ancillary Facility and any Documentary Credit granted to the Borrowers under this Agreement, and “Facility” means any of them, as the context may require.

 

Facility Agent’s Spot Rate of Exchange” means, in relation to two currencies, the Facility Agent’s spot rate of exchange for the purchase of the first-mentioned currency with the second-mentioned currency in the London foreign exchange market at or about 11 a.m. on a particular day.

 

Facility Office” means the office notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender or, following that date, (i) by not less than 5 Business Days written notice as the office through which it will perform its obligations under this Agreement where the office is situated in Financial Action Task Force countries, or (ii) with the prior written consent of the Facility Agent, an office through which it will perform its obligations under this Agreement situated in non-Financial Action Task Force countries.

 

Fee Letters” means the A Facility Fee Letter, any B Facility Fee Letter and the other fee letters referred to in Clauses 16.2 (Arrangement and Underwriting Fee), 16.3 (Agency Fee) and 16.5 (L/C Bank Fee).

 

Final Maturity Date” means:

 

(a)                           in respect of the Revolving Facility, 30 June 2015;

 

(b)                          in respect of an Additional Facility, as agreed by the Company and the relevant Additional Facility Lenders in the relevant Additional Facility Accession Deed, but subject to Clause 2.6 (Additional Facility);

 

(c)                           in respect of the A Facility, the A1 Facility or the A2 Facility, 30 June 2015; and

 

(d)                          in respect of the B Facility or the B1 Facility, 31 December 2015.

 

Finance Documents” means:

 

(a)                           any Relevant Finance Document;

 

(b)                          any Senior Secured Notes Documents; and

 

(c)                           any other agreement or document designated a “Finance Document” in writing by the Facility Agent and the Company.

 

26



 

Finance Lease” means a lease treated as a capital or finance lease pursuant to GAAP provided that, upon a change in GAAP eliminating the difference in treatment of operating leases and capital leases, “Finance Lease” shall be deemed to be a leasing arrangement where the net present value of the payments (using an interest rate determined with reference to yield to maturity in the trading markets for the issue at the date of the lease of the Parent’s unsecured senior notes with the longest maturity date at the date of the lease) exceeds 90% of the fair value of the asset.

 

Finance Parties” means the Facility Agent, the Arrangers, the Bookrunners, the Security Trustee, the Lenders and each Hedge Counterparty, the holders of any Senior Secured Notes and the trustees and/or other agents in respect of any Senior Secured Notes and “Finance Party” means any of them.

 

Financial Action Task Force” means the Financial Action Task Force on Money Laundering, an inter-governmental body, the purpose of which is the development and promotion of policies, at both national and international levels, to combat money laundering.

 

Financial Indebtedness” means, without double counting, any Indebtedness for or in respect of:

 

(a)                           moneys borrowed;

 

(b)                          any amount raised by acceptance under any acceptance credit facility;

 

(c)                           any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (but not, in any case, Trade Instruments) (for the avoidance of doubt excluding any loan notes or similar instruments issued solely by way of consideration for the acquisition of assets in order to defer capital gains or equivalent taxes where such loan notes or similar instruments are not issued for the purpose of raising finance);

 

(d)                          the principal portion of any liability in respect of any Finance Lease;

 

(e)                           receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

 

(f)                             the amount of any liability in respect of any purchase price for assets or services the payment of which is deferred for a period in excess of 150 days in order to raise finance or to finance the acquisition of those assets or services;

 

(g)                          any amount raised under any other transaction (including any forward sale or purchase agreement) required to be accounted for as indebtedness in accordance with GAAP;

 

(h)                          any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account, provided that for the purposes of Clause 27.5 (Cross Default), only the net amount not paid or which is payable by the relevant member of the Group shall be included);

 

(i)                              any amount raised pursuant to any issue of shares which are expressed to be redeemable (other than at the option of the issuer) in cash (other than redeemable shares in respect of which the redemption is prohibited until after repayment in full of all Outstandings under the Facilities);

 

27



 

(j)                              any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument (but not, in any case, Trade Instruments) issued by a bank or financial or other institution; or

 

(k)                           the amount of any liability in respect of any guarantee or indemnity for the Financial Indebtedness of another person referred to in paragraphs (a) to (j) above.

 

Financial Officer” means the Chief Financial Officer, the Deputy Chief Financial Officer, the Assistant Treasurer, the Controller or the Group Treasurer, in each case, of the Company or of the Group, or any similar officer of the Company or of the Group.

 

Financial Quarter” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Financial Support Direction” means a financial support direction issued by the Pensions Regulator under Section 43 of the Pensions Act 2004.

 

Fitch” means Fitch Ratings or any successor thereof.

 

Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States by any member of the Group for the benefit of employees of any member of the Group residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

 

Funded Excluded Subsidiary” means, in respect of a Funding Passthrough, a Bank Group Excluded Subsidiary or any person in which a member of the Bank Group owns an interest but which is not a member of the Bank Group which:

 

(a)                           indirectly receives funding from a Bank Holdco; and/or

 

(b)                          by way of dividend or other distribution, loan or payment of interest on or the repayment of the principal amount of any indebtedness owed by it, directly or indirectly, makes a payment to a Bank Holdco.

 

Funding Passthrough” means a series of transactions between a Bank Holdco, one or more members of the Bank Group and a Funded Excluded Subsidiary where:

 

(a)                           in the case of funding being provided by a Bank Holdco to the Funded Excluded Subsidiary, that funding is:

 

(i)                              first made available by the Bank Holdco to (in the case of the Parent) the Company or, one of its Subsidiaries (other than in the case of Virgin Media Communications, the Parent or any of its Subsidiaries) by way of the subscription for new securities, capital contribution or Subordinated Funding;

 

(ii)                           secondly (if relevant) made available by the recipient of the Funding Passthrough under (i) above, to a member of the Bank Group (other than the Company) which may be followed by one or more transactions between members of the Bank Group (other than the Company) and finally made available by a member of the Bank Group (other than the Company) to the Funded Excluded Subsidiary in all such cases by way of either the subscription for new securities, the advancing of loans or capital contribution; or

 

28



 

(b)                          in the case of a payment to be made by the Funded Excluded Subsidiary to a Bank Holdco that payment is:

 

(i)                              first made by the Funded Excluded Subsidiary to a member of the Bank Group, and thereafter is made between members of the Bank Group (as relevant), by way of dividend or other distribution, loan or payment of interest on or the repayment of the principal amount of any indebtedness owed by such Funded Excluded Subsidiary or relevant member of the Bank Group; and

 

(ii)                           finally made by the Company to the Parent or by one of the Subsidiaries of Virgin Media Communications (other than the Parent or any of its Subsidiaries) to Virgin Media Communications by way of dividend or other distribution, loan or the payment of interest on or the repayment of the principal amount of any loan made by way of Subordinated Funding.

 

GAAP” means accounting principles generally accepted in the United States.

 

Group” means:

 

(a)                           for the purposes of Clause 22.1 (Financial Statements), Clause 22.3 (Budget) and Clause 23 (Financial Condition) and any other provisions in this Agreement using the terms defined in Clause 23 (Financial Condition):

 

(i)                              the Ultimate Parent and its Subsidiaries from time to time; and

 

(ii)                           NTL South Herts, for so long as a member of the Group is the general partner of South Hertfordshire United Kingdom Fund, Ltd. or if it becomes a wholly-owned Subsidiary of the Group; and

 

(b)                          for all other purposes, the Ultimate Parent and its Subsidiaries from time to time.

 

Group Business” means the provision of broadband and communications services, including:

 

(a)                           residential telephone, mobile telephone, cable television and Internet services, including wholesale Internet access solutions to Internet service providers;

 

(b)                          data, voice and Internet services to large businesses, public sector organisations and small and medium sized enterprises;

 

(c)                           national and international communications transport services to communications companies; and

 

(d)                          the provision of Content,

 

and any related ancillary or complementary business to any of the services described above.

 

Group Intercreditor Agreement” means the intercreditor agreement dated 3 March 2006 between, among others, certain of the Obligors, other members of the Group and the Relevant Finance Parties.

 

Group Structure Chart” means the structure chart relating to the Group, which has been delivered to the Facility Agent on or prior to the Original Execution Date or any updated group structure chart which is delivered to the Facility Agent pursuant to Clause 24.14 (Group Structure Chart) from time to time.

 

29



 

Guarantors” means:

 

(a)                           for the purposes of Clause 29 (Guarantee and Indemnity), the Parent, the Original Guarantors and any Acceding Guarantors; and

 

(b)                          for the purposes of any other provision of the Relevant Finance Documents, the Original Guarantors and any Acceding Guarantors,

 

and “Guarantor” means any one of them as the context requires, provided that in either case, such person has not been released from its rights and obligations as a Guarantor hereunder pursuant to Clause 44.5 (Release of Guarantees and Security).

 

Hazardous Substance” means any waste, pollutant, contaminant or other substance (including any liquid, solid, gas, ion, living organism or noise) that may be harmful to human health or other life or the Environment.

 

Hedge Counterparty” means any counterparty which is a party to a Hedging Agreement entered into for the purposes of Clause 24.9 (Hedging) and has acceded to the Group Intercreditor Agreement and the HYD Intercreditor Agreement and “Hedge Counterparties” means all such counterparties.

 

Hedging Agreement” means any agreement in respect of an interest rate swap, currency swap, forward foreign exchange transaction, cap, floor, collar or option transaction or any other treasury transaction or any combination of it or any other transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

 

“Hedging Letter” means the hedging letter from the Company to the Facility Agent dated on or about 27 May 2011 which sets out the Group’s hedging policy.

 

High Yield Notes” means the Existing High Yield Notes, any Additional High Yield Notes and any High Yield Refinancing.

 

High Yield Refinancing” means any Financial Indebtedness incurred by the Parent or the Ultimate Parent for the purposes of refinancing all or a portion of the Existing High Yield Notes and/or any Additional High Yield Notes and/or any High Yield Refinancing and/or any Senior Secured Notes and/or the Convertible Senior Notes and/or any Financial Indebtedness permitted to be incurred or outstanding pursuant to Clause 25.4 (Financial Indebtedness), in each case, including any Financial Indebtedness incurred for the purpose of the payment of all principal, interest, fees, expenses, commissions, make-whole and any other contractual premium payable under such Financial Indebtedness being refinanced and any reasonable fees, costs and expenses incurred in connection with such refinancing, in respect of which the following terms apply:

 

(a)                           the final maturity date or redemption date of such refinancing occurs no earlier than 31 December 2015;

 

(b)                          the principal amount of any such Financial Indebtedness shall not exceed the principal amount of, and any outstanding interest on, the Financial Indebtedness being refinanced (plus all fees, expenses, commissions, make-whole or other contractual premium payable in connection with such refinancing);

 

(c)                           it is unsecured, except that where such Financial Indebtedness is issued by the Ultimate Parent, it may be secured by a pledge of the shares in the Parent or one of its parent companies if such Financial Indebtedness is unable to receive the benefit of the subordinated guarantees of the Company and/or Intermediate Holdco

 

30



 

contemplated by paragraph (d) below, for tax or other reasons as reasonably determined by the Company; and

 

(d)                          if such Financial Indebtedness is guaranteed, it is not guaranteed by any member of the Bank Group other than the Company and/or Intermediate Holdco, provided that any such guarantee or guarantees so provided are (i) granted on subordination and release terms substantially the same as the existing guarantees of the Company and Intermediate Holdco in favour of the Existing High Yield Notes and (ii) subject to the terms of the HYD Intercreditor Agreement or a Supplemental HYD Intercreditor Agreement.

 

Holding Company” of a company means a company of which the first-mentioned company is a Subsidiary.

 

HYD Intercreditor Agreement” means the intercreditor agreement dated 13 April 2004 between certain of the Obligors, the Relevant Finance Parties and the indenture trustee in respect of the Existing High Yield Notes.

 

IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

Impaired Agent” means the Facility Agent at any time when:

 

(a)                           it has failed to make (or has notified a Relevant Finance Party that it will not make) a payment required to be made by it under the Relevant Finance Documents by the due date for payment;

 

(b)                          the Facility Agent otherwise rescinds or repudiates a Relevant Finance Document;

 

(c)                           (if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or

 

(d)                          an Insolvency Event has occurred and is continuing with respect to the Facility Agent,

 

unless, in the case of paragraph (a) above:

 

(i)                              its failure to pay is caused by:

 

(A)                           administrative or technical error; or

 

(B)                             a Disruption Event; and

 

payment is made within 3 Business Days of its due date; or

 

(ii)                           the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Increase Confirmation” means a confirmation substantially in the form set out in Schedule 13 (Form of Increase Confirmation).

 

Increased Cost” means:

 

(a)                           any reduction in the rate of return from a Facility or on a Relevant Finance Party’s (or an Affiliate’s) overall capital;

 

(b)                          any additional or increased cost; or

 

31



 

(c)                           any reduction of any amount due and payable under any Relevant Finance Document,

 

which is incurred or suffered by a Relevant Finance Party or any of its Affiliates to the extent that it is attributable to that Relevant Finance Party having agreed to make available its Commitment or having funded or performed its obligations under any Relevant Finance Document.

 

Increase Lender” has the meaning set out in Clause 2.2(a)(ii) (Increase).

 

Indebtedness” means any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent (including interest and other charges relating to it).

 

Information Memorandum” means the information memorandum to be dated on or around the Original Execution Date and approved by the Company concerning the Obligors which, at the request of the Company and on its behalf, has been or will be prepared in relation to the Facilities and the business, assets, financial condition and prospects of the Group and which will be made available by the Mandated Lead Arrangers pursuant to the terms of the B Facility Syndication Letter to selected banks and other institutions for the purpose of syndicating the B Facilities, as supplemented by the reports of the Ultimate Parent publicly filed with the SEC, including without limitation the Annual Report on Form 10-K dated 26 February 2010.

 

Insolvency Event” in relation to a Relevant Finance Party means that the Relevant Finance Party:

 

(a)                           is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b)                          becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c)                           makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

(d)                          institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

(e)                           has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

(i)                              results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

(ii)                           is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

32



 

(f)                             has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(g)                          seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;

 

(h)                          has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

(i)                              causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or

 

(j)                              takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

 

Inspecting Party” has the meaning given to such term in Clause 22.6 (Access).

 

Instructing Group” means:

 

(a)                           for the purposes of Clause 27.17 (Acceleration):

 

(i)                              before any Utilisation of the Facilities under this Agreement, a Lender or group of Lenders whose Available Commitments amount in aggregate to more than 662/3% of the Available Facilities; and

 

(ii)                           thereafter, a Lender or group of Lenders to whom in aggregate more than 662/3% of the aggregate amount of the Outstandings are (or if there are no Outstandings at such time, immediately prior to their repayment, were then) owed,

 

in each case, calculated in accordance with the provisions of Clause 44.7 (Calculation of Consent); and

 

(b)                          for all other purposes under this Agreement:

 

(i)                              before any Utilisation of the Facilities under this Agreement, a Lender or group of Lenders whose Available Commitments amount in aggregate to more than 662/3% of the Available Facilities; and

 

(ii)                           thereafter, a Lender or group of Lenders to whom in aggregate more than 662/3% of the aggregate amount of the Outstandings are (or if there are no Outstandings at such time, immediately prior to their repayment, were then) owed,

 

in each case, calculated in accordance with the provisions of Clause 44.7 (Calculation of Consent), provided that to the extent the terms of an Additional Facility vary from the terms of this Agreement:

 

(A)                           the relevant Lenders under the applicable Additional Facility shall not be entitled to vote on any matters (including on any consent and/or

 

33



 

waiver) with respect to any provisions of this Agreement that do not equally apply to such Additional Facility in which case the relevant Additional Facility Commitments and any related Additional Facility Outstandings shall be excluded from the calculation of the requisite percentage under paragraphs (b)(i) and (ii) above;

 

(B)                             the relevant Lenders under the applicable Additional Facility shall be entitled to vote on any matters (including on any consent and/or waiver) with respect to any provisions of this Agreement that equally apply to such Additional Facility in which case the relevant Additional Facility Commitments and any related Additional Facility Outstandings shall be included in the calculation of the requisite percentage under paragraphs (b)(i) and (ii) above; and

 

(C)                             only the relevant Lenders under the applicable Additional Facility shall be entitled to vote on any matters (including any consent and/or waiver) with respect to any provisions that solely apply to such Additional Facility or Additional Facilities in which case only the relevant Commitments and any related Outstandings under such Additional Facility or Additional Facilities shall be included in the calculation of the requisite percentage under paragraphs (b)(i) and (ii) above,

 

and provided further that, in each case of paragraphs (a) and (b) above, for the purposes of any references in the HYD Intercreditor Agreement to the definition of “Instructing Group” in this Agreement, “Instructing Group” means Instructing Party as defined in the Group Intercreditor Agreement.

 

Intellectual Property Rights” means any patent, trade mark, service mark, registered design, trade name or copyright or any license to use any of the same.

 

Interest” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Interest Coverage Ratio” has the meaning given to such term in paragraph (b) of Clause 23.2 (Ratio).

 

Interest Period” means, save as otherwise provided in this Agreement, any of those periods mentioned in Clause 14.1 (Interest Periods for Term Facility Advances).

 

Intermediate Holdco” means Virgin Media Investments Limited, a company incorporated in England and Wales under registered number 7108297 and having its registered office at 160 Great Portland Street, London W1W 5QA.

 

Intra-Group Services” means:

 

(a)                           the sale of programming or other Content by any member(s) of the Group to one or more members of the Bank Group on arms’ length terms;

 

(b)                          the lease or sublease of office space, other premises or equipment on arms’ length terms by one or more members of the Bank Group to one or more members of the Group or by one or more members of the Group to one or more members of the Bank Group;

 

(c)                           the provision or receipt of other services, facilities or other arrangements (in each case not constituting Financial Indebtedness) in the ordinary course of business, by or from one or more members of the Bank Group to or from one or more members of the

 

34



 

Group including, without limitation, (i) the employment of personnel, (ii) provision of employee healthcare or other benefits, (iii) acting as agent to buy equipment, other assets or services or to trade with residential or business customers, and (iv) the provision of audit, accounting, banking, IT, telephony, office, administrative, compliance, payroll or other similar services provided that the consideration for the provision thereof is, in the reasonable opinion of the Company, no less than Cost; and

 

(d)                          the extension, in the ordinary course of business and on terms no less favourable to the relevant member of the Bank Group than arms’ length terms, by or to any member of the Bank Group to or by any such member of the Group of trade credit not constituting Financial Indebtedness in relation to the provision or receipt of Intra-Group Services referred to in paragraphs (a), (b) or (c) above.

 

ISDA” means the International Swaps & Derivatives Association, Inc.

 

ITA” means the Income Tax Act 2007.

 

Joint Venture” means any joint venture, partnership or similar arrangement between any member of the Bank Group and any other person that is not a member of the Bank Group.

 

Joint Venture Group” means any Joint Venture and its subsidiaries from time to time, including the UKTV Group.

 

Law” means:

 

(a)                           common or customary law;

 

(b)                          any constitution, decree, judgment, legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction; and

 

(c)                           any directive, regulation, practice, requirement which has the force of law and which is issued by any governmental body, agency or department or any central bank or other fiscal, monetary, regulatory, self-regulatory or other authority or agency.

 

L/C Bank” means the Original L/C Bank and any other Lender which has been appointed as an L/C Bank in accordance with Clause 5.11 (Appointment and Change of L/C Bank) and which has not resigned in accordance with paragraph (c) of Clause 5.11 (Appointment and Change of L/C Bank).

 

L/C Bank Accession Certificate” means a duly completed accession certificate in the form set out in Schedule 11 (Form of L/C Bank Accession Certificate).

 

L/C Lender” has the meaning set out in Clause 5.1(b) (Issue of Documentary Credits).

 

L/C Proportion” means, in relation to a Lender in respect of any Documentary Credit and save as otherwise provided in this Agreement, the proportion (expressed as a percentage) borne by such Lender’s Available Revolving Facility Commitment to the Available Revolving Facility immediately prior to the issue of such Documentary Credit.

 

Legal Opinions” means any of the legal opinions referred to in paragraph 9 of Part 1 of Schedule 3 (Conditions Precedent to First Utilisation) and paragraph 2 of Part 4 of Schedule 5 (Accession Documents) delivered pursuant to Clause 3.1 (Conditions Precedent) and Clause 26 (Acceding Group Companies), respectively.

 

35



 

Lender” means:

 

(a)                           an Original Lender;

 

(b)                          a person (including each L/C Bank and each Ancillary Facility Lender) which has become a party to this Agreement as a Lender in accordance with the provisions of Clause 37 (Assignments and Transfers);

 

(c)                           a person which has become a party to this Agreement as a Lender by executing a B Facility Accession Deed; or

 

(d)                          a person which has become a party to this Agreement as a Lender by executing an Additional Facility Accession Deed,

 

which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.

 

Leverage Ratio” has the meaning given to such term in paragraph (a) of Clause 23.2 (Ratios).

 

LIBOR” means, in relation to any amount to be advanced to or owed by an Obligor under this Agreement in a currency (other than euro) on which interest for a given period is to accrue:

 

(a)                           the rate per annum which appears on the Relevant Page for such period at or about 11.00 a.m. on the Quotation Date for such period; or

 

(b)                          if no such rate is displayed and the Facility Agent shall not have selected an alternative service on which such rate is displayed as contemplated by the definition of “Relevant Page”, the arithmetic mean (rounded upwards, if not already such a multiple, to the nearest 4 decimal places) of the rates (as notified to the Facility Agent) at which each of the Reference Banks was offering to prime banks in the London interbank market deposits in the relevant currency for such period at or about 11.00 am on the Quotation Date for such period.

 

Liquidation Transfer” has the meaning given to such term in Clause 25.18(a) (Internal Reorganisations).

 

Major Event of Default” means an Event of Default arising under any of the following provisions:

 

(a)                           Clause 27.1 (Non-Payment);

 

(b)                          Clause 27.2 (Covenants);

 

(c)                           Clause 27.5 (Cross Default);

 

(d)                          Clause 27.6 (Insolvency);

 

(e)                           Clause 27.7 (Winding-up);

 

(f)                             Clause 27.8 (Execution or Distress);

 

(g)                          Clause 27.9 (Similar Events);

 

(h)                          Clause 27.10 (Repudiation);

 

36



 

(i)                              Clause 27.11 (Illegality);

 

(j)                              Clause 27.12 (Intercreditor Default); and

 

(k)                           Clause 27.14 (Material Adverse Effect).

 

Mandatory Cost” means the percentage rate per annum calculated by the Facility Agent in accordance with Schedule 7 (Mandatory Cost Formula).

 

Margin Stock” shall have the meaning provided in Regulation U.

 

Marketable Securities” means any security which is listed on any publicly recognised stock exchange and which has, or is issued by a company which has, a capitalisation of not less than £1 billion (or its equivalent in other currencies) as at the time such Marketable Securities are acquired by any member of the Bank Group by way of consideration for any disposal permitted under Clause 25.6 (Disposals).

 

Market Disruption Event” has the meaning given to such term in clause 15.2(c) (Market Disruption).

 

Material Adverse Effect” means:

 

(a)                           other than with respect to clause 27.13 (Revocation of Necessary Authorisations), clause 27.14 (Material Adverse Effect) and clause 27.15 (Material Proceedings), a material adverse change in:

 

(i)                              the financial condition, assets or business of the Obligors (taken as a whole); or

 

(ii)                           the ability of any Obligor to perform and comply with its payment or other material obligations under any Relevant Finance Document (taking into account the resources available to such Obligor from any other member of the Bank Group); and

 

(b)                          with respect to clause 27.13 (Revocation of Necessary Authorisations), clause 27.14 (Material Adverse Effect) and clause 27.15 (Material Proceedings), a material adverse change in:

 

(i)                              the financial condition, assets or business of the Obligors (taken as a whole); and

 

(ii)                           the ability of the Obligors (taken together) to perform and comply with its payment or other material obligations under any Relevant Finance Document (taking into account the resources available to the Obligors from any other member of the Bank Group).

 

Material Subsidiary” means, at any time, a member of the Bank Group whose contribution to Consolidated Operating Cashflow (on a consolidated basis if it has Subsidiaries) represents at least 5% of the Consolidated Operating Cashflow calculated by reference to the most recent financial statements of the Bank Group delivered pursuant to paragraph (b)(ii) of Clause 22.1 (Financial Statements).

 

Maturing Advance” has the meaning given to such term in Clause 8.2 (Rollover Advances).

 

Merged Entity” has the meaning given to such term in Clause 25.8(d) (Mergers).

 

37



 

Moody’s” means Moody’s Investor Services, Inc. or any successor thereof.

 

Multiemployer Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of) any member of the Group or an ERISA Affiliate, and each such plan for the five year period immediately following the latest date on which any member of the Group or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan.

 

Necessary Authorisations” means all Authorisations (including Environmental Licences and any Authorisations issued pursuant to or any deemed Authorisations under any Statutory Requirements) of any person including any government or other regulatory authority required by applicable Law to enable it to:

 

(a)                           lawfully enter into and perform its obligations under the Relevant Finance Documents to which it is party;

 

(b)                          ensure the legality, validity, enforceability or admissibility in evidence in England and, if different, its jurisdiction of incorporation or establishment, of such Relevant Finance Documents to which it is party; and

 

(c)                           carry on its business from time to time.

 

Net Proceeds” means:

 

(a)                           any cash proceeds received by any member of the Bank Group (including, when received, any cash proceeds received by way of deferred instalment of purchase price or from the sale of Cash Equivalent Investments or Marketable Securities acquired by any member of the Bank Group in consideration for any Disposal as contemplated under Clause 25.6 (Disposals) but excluding any repayment of any loan or Financial Indebtedness in connection therewith) from any Disposal after deducting:

 

(i)                              all taxes paid or reasonably estimated by such member of the Bank Group to be payable by any member of the Bank Group as a result of that Disposal;

 

(ii)                           all reasonable fees, commissions, costs and expenses incurred by such member of the Bank Group in arranging or effecting that Disposal, including, without limitation, any amount required to be paid by any member of the Bank Group to any proprietor of any intellectual property rights (not being a member of the Bank Group) (including intellectual property licences) related to the assets disposed of where such payment is on arms’ length terms and is required to enable such intellectual property rights to be transferred with such assets to the extent necessary to facilitate the applicable Disposal and any related redundancy, relocation and restructuring costs (as evidenced in reasonable detail to the Facility Agent on request);

 

(iii)                        in the case of a Disposal effected by a member of the Bank Group other than a Borrower, such provision as is reasonable for all costs and taxes (after taking into account all available credits, deductions and allowances) incurred by the Bank Group to a person other than a member of the Bank Group and fairly attributable to up streaming the cash proceeds to a Borrower or making any distribution in connection with such proceeds to enable them to reach a Borrower;

 

(iv)                       any cash proceeds which are to be applied towards discharging any Encumbrance over such asset;

 

38



 

(v)                          in the case of a Disposal of a non-wholly-owned Subsidiary or Joint Venture, to the extent received by any member of the Bank Group, any cash proceeds attributable to any interest in such Subsidiary or Joint Venture owned by any person other than a member of the Bank Group;

 

(vi)                       any amounts reserved for any possible warranty or indemnity claim in relation to any Disposal provided that such amounts shall be added back to Net Proceeds once any such reserve is reversed; and

 

(b)                          the cash proceeds received by any member of the Bank Group of any claim for loss or destruction of or damage to the property of a member of the Bank Group under any insurance policy after deducting any such proceeds relating to the third party or public liability claims which are applied towards meeting such claims (and, for the avoidance of doubt, excluding any proceeds received for any claim under any business interruption or similar insurance) and any reasonable costs incurred in recovering the same.

 

New Equity” means a subscription for capital stock of the Ultimate Parent or any other form of equity contribution to the Ultimate Parent, in each case, where such subscription or contribution does not result in a Change of Control.

 

New Lender” has the meaning given to such term in Clause 37.5 (Assignments or Transfers by Lenders).

 

Non-Acceptable L/C Lender” means a Lender under the Revolving Facility which the Facility Agent has determined:

 

(a)                           is not an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” (other than a Lender which each L/C Bank has agreed is acceptable to it notwithstanding that fact or an Original Lender); or

 

(b)                          is a Defaulting Lender; or

 

(c)                           has failed to make (or has notified the Facility Agent that it will not make) a payment to be made by it under Clause 29.2 (Indemnity) or Clause 30.10 (Lender’s Indemnity) or any other payment to be made by it under the Relevant Finance Documents to or for the account of any other Relevant Finance Party in its capacity as Lender by the due date for payment unless the failure to pay falls within the description of any of those items set out at (i) — (ii) of the definition of Defaulting Lender.

 

Non-Consenting Lender” is a Lender which does not agree to a consent to an amendment to, or a waiver of, any provision of the Relevant Finance Documents where:

 

(a)                           the Company or the Facility Agent has requested the Lenders to consent to an amendment to, or waiver, of any provision of the Relevant Finance Documents;

 

(b)                          the consent or amendment in question requires the agreement of the Lenders affected thereby pursuant to Clause 44.2 (Consents) (and such Lender is one of the Lenders affected thereby);

 

(c)                           Lenders representing not less than 80% of the Commitments or Outstandings, as the case may be, of the Lenders affected thereby have agreed to such consent or amendment; and

 

(d)                          the Company has notified the Lender it will treat it as a Non-Consenting Lender.

 

39



 

Non-Funding Lender” is either:

 

(a)                           a Lender which fails to comply with its obligation to participate in any Advance where:

 

(i)                              all conditions to the relevant Utilisation (including without limitation, delivery of a Utilisation Request) have been satisfied or waived by an Instructing Group in accordance with the terms of this Agreement;

 

(ii)                           Lenders representing not less than 80% of the relevant Commitments have agreed to comply with their obligations to participate in such Advance; and

 

(iii)                        the Company has notified the Lender that it will treat it as a Non-Funding Lender;

 

(b)                          a Lender which has given notice to a Borrower or the Facility Agent that it will not make, or it has disaffirmed or repudiated any obligation to participate in, an Advance; or

 

(c)                           a Defaulting Lender.

 

Non-Bank Group Member” has the meaning given to such term in Clause 24.12(f) (Further Assurance).

 

Notifiable Debt Purchase Transaction” has the meaning given to such term in Clause 38  (Debt Purchase Transactions).

 

NTL South Herts” means NTL (South Hertfordshire) Limited, a company incorporated in England and Wales with registered number 2401044.

 

Obligors” means the Borrowers and the Guarantors and “Obligor” means any of them.

 

Obligors’ Agent” means the Company in its capacity as agent for the Parent and the Obligors pursuant to Clause 30.17 (Obligors’ Agent).

 

Optional Currency” means, in relation to any Advance, any currency other than euro, Dollars and Sterling which:

 

(a)                           is readily available to banks in the London interbank market, and is freely convertible into Sterling on the Quotation Date and the Utilisation Date for the relevant Advance; and

 

(b)                          has been approved by the Facility Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Facility Agent of the relevant Utilisation Request.

 

Original Borrower” means each of the Company, Virgin Media Limited, VM Wholesale, UK Newco and VMIH Sub

 

Original Company” has the meaning given to such term in Clause 25.13(k) (Acquisitions and Investments).

 

Original Entity” has the meaning given to such term in Clause 25.8(d) (Mergers).

 

Original Execution Date” means 16 March 2010.

 

40



 

Original Financial Statements” means the audited consolidated financial statements of the Ultimate Parent for the financial year ended 31 December 2009.

 

Original Guarantor” means each of the companies and partnerships listed in Part 1 of Schedule 2 (The Original Guarantors) which are signatories to this Agreement on the Original Execution Date or which will accede to this Agreement on or prior to the first Utilisation Date and which, in each case, has not ceased to be a party to this Agreement in accordance with the terms of this Agreement.

 

Original Lender” means a person (including each L/C Bank and each Ancillary Facility Lender) which is named in Part 1 of Schedule 1 (Lenders and Commitments).

 

Original Obligors” means the Original Borrowers and the Original Guarantors.

 

Original Security Documents” means the security documents listed in Schedule 9 (Original Security Documents).

 

Outstanding L/C Amount” means:

 

(a)                           each sum paid or payable by an L/C Bank to a Beneficiary pursuant to the terms of a Documentary Credit; and

 

(b)                          all liabilities, costs (including, without limitation, any costs incurred in funding any amount which falls due from an L/C Bank under a Documentary Credit), claims, losses and expenses which an L/C Bank (or any of the L/C Lenders) incurs or sustains in connection with a Documentary Credit,

 

in each case which has not been reimbursed or in respect of which cash cover has not been provided by or on behalf of a relevant Borrower.

 

Outstandings” means, at any time, the Term Facility Outstandings, the Revolving Facility Outstandings and any Ancillary Facility Outstandings.

 

Paper Form Lender” has the meaning given to such term in Clause 41.3(b) (Use of Websites/E-mail).

 

Parent Debt” means any Financial Indebtedness of the Ultimate Parent or one or more of its Subsidiaries (other than a member of the Bank Group) in the form of:

 

(a)                           Convertible Senior Notes and/or any Financial Indebtedness incurred after the Original Execution Date that refinances such notes in whole or in part;

 

(b)                          High Yield Notes; and/or

 

(c)                           any Financial Indebtedness incurred after the Original Execution Date that could have been incurred by any member of the Bank Group pursuant to Clause 25.4 (Financial Indebtedness) at the time of the incurrence of such Financial Indebtedness,

 

provided that, in respect of any such Financial Indebtedness incurred after the Original Execution Date, such Financial Indebtedness is designated as “Parent Debt” by written notice from the Company to the Facility Agent and the Security Trustee by the date when the consolidated financial statements are due to be provided pursuant to clause 22.1(a) (Financial Statements) for the first full Financial Quarter after such incurrence.

 

41



 

Parent Intercompany Debt” means any Financial Indebtedness owed by any member of the Bank Group to the Ultimate Parent or to its Subsidiaries (other than another member of the Bank Group) from time to time and:

 

(a)                           which is subordinated to the Facilities pursuant to the terms of the Group Intercreditor Agreement and the HYD Intercreditor Agreement;

 

(b)                          if not already subject to Security created under the Original Security Documents, Security in favour of the Security Trustee on terms satisfactory to the Security Trustee is promptly granted by the relevant creditor over its rights; and

 

(c)                           if such Financial Indebtedness is in form of a guarantee, then such guarantee is not given by any member of the Bank Group other than the Company and/or Intermediate Holdco provided that any such guarantee so provided is (i) on subordination and release terms substantially the same as the existing guarantees of Company and Holdco in favour of the Existing High Yield Notes and (ii) subject to the terms of the HYD Intercreditor Agreement or Supplemental HYD Intercreditor Agreement.

 

Participating Employers” means the Company and any members of the Group which participate or have at any time participated in a UK Pension Scheme.

 

Participating Member State” means any member of the European Community that at the relevant time has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

 

Patriot Act” has the meaning given to such term in Clause 41.7 (Patriot Act).

 

PAYE” means The Pay As You Earn System provided for at Part 11 Income Tax (Earnings and Pensions) Act 2003 and related regulations, as also extended to the collection of National Insurance Contributions.

 

Paying Lender” has the meaning given to such term in Clause 6.3(g) (Ancillary Facility Default).

 

PBGC” means the Pension Benefit Guaranty Corporation established pursuant to section 4002 of ERISA, or any successor to it.

 

Pensions Regulator” means the body corporate established under Part 1 of the Pensions Act 2004.

 

Permitted Acquisition” has the meaning given to such term in Clause 25.13(m) (Acquisitions and Investments).

 

Permitted Auditors” means any of Pricewaterhouse Coopers, Ernst & Young, Deloitte & Touche or KPMG or any of their respective successors or any other internationally recognised firm of accountants.

 

Permitted Joint Venture Net Operating Cash Flow” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Permitted Joint Venture Proceeds” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

42



 

Permitted Joint Ventures” means any Joint Venture permitted under Clause 25.9 (Joint Ventures) that the Company designates as such by giving notice in writing to the Facility Agent.

 

Permitted Payments” means:

 

(a)                           the payment of any dividend, payment, loan or other distribution, or the repayment of a loan or the redemption of loan stock or redeemable equity made, at any time, to fund the payment of expenses (including taxes and the buy back of stock from employees) by any member of the Group the aggregate amount of such payments being no greater than £35 million (or its equivalent) in each financial year; provided that any amount of such basket amount that remains unused at the end of any financial year may be carried forward and used to fund such payment in the following financial year at the Obligors’ discretion (and any such amount carried forward will be treated as having been utilised before the original basket amount available in such following financial year);

 

(b)                          the payment of any dividend, payment, loan or other distribution, or the repayment of a loan, or the redemption of loan stock or redeemable equity, in each case, which is required in order to facilitate the making of payments by any member of the Group and to the extent required:

 

(i)                              by the terms of the Relevant Finance Documents;

 

(ii)                           by the terms of the Senior Secured Notes Documents;

 

(iii)                        by the terms of any Parent Debt (or, in each case, any guarantee of the obligations thereunder);

 

(iv)                       by the terms of any Hedging Agreement that is permitted to be entered into and/or maintained pursuant to Clause 25.12 (Limitations on Hedging) or required to be entered into and/or maintained pursuant to Clause 24.9 (Hedging) to the extent such payment is not prohibited by the Group Intercreditor Agreement;

 

(v)                          by the purposes of implementing any Content Transaction or Business Division Transaction; or

 

(vi)                       by the terms of any Subordinated Funding to the extent required to facilitate any Permitted Payments,

 

where, in the case of sub-paragraphs (i) to (vi) above, the payment under the relevant indebtedness or obligation referred to therein has fallen due or will fall due within five Business Days of such Permitted Payment being made;

 

(c)                           the payment of any dividend, payment, loan or other distribution, or the repayment of a loan, or the redemption of loan stock or redeemable equity, in each case, which is required in order to fund the making of payments by any member of the Group in order to redeem, repay, prepay, repurchase, retire, defease or otherwise acquire for value any of the 2014 High Yield Notes and to pay any related costs and expenses;

 

(d)                          any payment of any dividend, payment, loan or other distribution, or the repayment of a loan, or the redemption of loan stock or redeemable equity made to any member of the Group (other than a member of the Bank Group), provided that:

 

43



 

(i)                              an amount equal to such payment is reinvested by such member of the Group (other than the Bank Group) into a member of the Bank Group within 3 days of receipt thereof;

 

(ii)                           the aggregate principal amount of such payments and reinvested amounts at any one time does not exceed an amount equal to £300 million; and

 

(iii)                        to the extent any such payments are made in cash, any re-invested amounts are also made in cash provided that any such re-invested amounts shall be in the form of Subordinated Funding, equity or the repayment of an intercompany loan or advance;

 

(e)                           any payment of any dividend, payment, loan or other distribution, or the repayment of a loan, or the redemption of loan stock or redeemable equity:

 

(i)                              in an amount of up to £10 million per annum plus an additional amount per annum, up to the maximum amount specified below determined by reference to the Leverage Ratio (rounded to the second decimal number) immediately prior to the declaration of such dividend or the making of such payment, loan or other distribution (calculated on a pro forma basis after giving effect to such payment) in accordance with the following table:

 

Leverage Ratio

 

Maximum Amount Per
Annum

 

Greater than 3.75x

 

£100 million

 

Less than or equal to 3.75x

 

No Limit

 

 

(ii)                           in an amount of up to £200 million from the cash proceeds of a Content Transaction; and

 

(iii)                        in an amount of up to £200 million from the cash proceeds of a Business Division Transaction provided that the Leverage Ratio immediately prior to the declaration of such dividend or the making of such payment, loan or other distribution is less than 4.0:1,

 

in each case, provided always that no Event of Default has occurred or is continuing or would result following such payment;

 

(f)                             any payments made pursuant to and in accordance with the Tax Cooperation Agreement, provided that:

 

(i)                              a copy of the certification or filings referred to in clause 5 of the Tax Cooperation Agreement, as the case may be, shall have been provided to the Facility Agent not less than five Business Days before such payment is to be made; and

 

(ii)                           any payments made to any Holding Company of VMIH for the purposes of settling any liabilities owed to the United States Internal Revenue Service which have arisen following implementation of the relevant steps set out in the Steps Paper may be made in an amount not exceeding £185 million from cash reserves of the Bank Group and in respect of any amount in excess of £185 million from:

 

(A)                           any Net Proceeds;

 

44



 

(B)                             any Excess Cash Flow;

 

(C)                             any Equity Proceeds;

 

(D)                              the proceeds of any Financial Indebtedness permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness); or

 

(E)                              the proceeds of any Parent Intercompany Debt or the proceeds of any Equity Equivalent Funding,

 

and provided always that immediately prior to and immediately after such payment, the Bank Group remains in compliance with the financial covenants set out in Clause 23.2 (Ratios) as applicable for the Quarter Date falling immediately prior to such payment and  calculated on a pro forma basis after giving effect to such payment; or

 

(g)                          any payment of any dividend, payment, loan or other distribution, or the repayment of a loan, or the redemption of loan stock or redeemable equity made pursuant to an Asset Passthrough or a Funding Passthrough, in each case, funded solely from cash generated by entities outside of the Bank Group.

 

Plan” means any pension plan as defined in section 3(2) of ERISA, which (i) is maintained or contributed to by (or to which there is an obligation to contribute by) any member of the Group or an ERISA Affiliate, and each such plan for the 5 year period immediately following the latest date on which any member of the Group or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan and (ii) is subject to ERISA, but excluding any Multiemployer Plan.

 

Predecessor Obligor” has the meaning given to such term in Clause 25.18 (Internal Reorganisations).

 

Proceedings” has the meaning given to such term in Clause 48.1 (Courts).

 

Project Company” means a Subsidiary of a company (or a person in which such company has an interest) which has a special purpose and whose creditors have no recourse to any member of the Bank Group in respect of Financial Indebtedness of that Subsidiary or person, as the case may be, or any of such Subsidiary’s or person’s Subsidiaries (other than recourse to such member of the Bank Group who had granted an Encumbrance over its shares or other interests in such Project Company beneficially owned by it provided that such recourse is limited to an enforcement of such an Encumbrance).

 

Proportion” in relation to a Lender, means:

 

(a)                           in relation to an Advance to be made under this Agreement, the proportion borne by such Lender’s Available Commitment in respect of the relevant Facility, the relevant Borrower and the relevant currency to the relevant Available Facility;

 

(b)                          in relation to an Advance or Advances outstanding under this Agreement, the proportion borne by such Lender’s share of the Sterling Amount of such Advance or Advances to the total Sterling Amount thereof;

 

(c)                           if paragraph (a) above does not apply and there are no Outstandings, the proportion borne by the aggregate of such Lender’s Available Commitment to the Available Facilities (or if the Available Facilities are then zero, by its Available Commitment to the Available Facilities immediately prior to their reduction to zero); and

 

45



 

(d)                          if paragraph (b) above does not apply and there are any Outstandings, the proportion borne by such Lender’s share of the Sterling Amount of the Outstandings to the Sterling Amount of all the Outstandings for the time being.

 

Protected Party” means a Relevant Finance Party or any Affiliate of a Relevant Finance Party which is or will be, subject to any Tax Liability in relation to any amount payable under or in relation to a Relevant Finance Document.

 

Public Lender” has the meaning given to such term in Clause 41.4 (Public Information).

 

Qualifying UK Lender” means in relation to a payment of interest on a participation in an Advance to a UK Borrower, a Lender which is:

 

(a)                           a UK Bank Lender;

 

(b)                          a UK Non-Bank Lender; or

 

(c)                           a UK Treaty Lender.

 

Quarter Date” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

Quotation Date” means, in relation to any currency and any period for which an interest rate is to be determined:

 

(a)                           if the relevant currency is Sterling, the first day of that period;

 

(b)                          if the relevant currency is euro, 2 TARGET Days before the first day of that period; or

 

(c)                           in relation to any other currency, 2 Business Days before the first day of that period,

 

provided that if market practice differs in the Relevant Interbank Market for a currency, the Quotation Date for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Date will be the last of those days).

 

Recipient” has the meaning given to such term in Clause 39.6(d) (Value Added Tax).

 

Recovering Relevant Finance Party” has the meaning given to such term in Clause 35.1 (Payments to Relevant Finance Parties).

 

Reference Banks” means the principal London offices of Deutsche Bank, BNP Paribas and Lloyds TSB Bank plc or such other bank or banks as may be appointed as such by the Facility Agent after consultation with the Company.

 

Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System as from to time in effect and any successor to all or any portion thereof.

 

Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

 

Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or any portion thereof.

 

46



 

Relevant Finance Documents” means:

 

(a)                           this Agreement, any Documentary Credit, any Accession Notices and any Transfer Deed;

 

(b)                          the Fee Letters;

 

(c)                           the B Facility Syndication Letter;

 

(d)                          any Ancillary Facility Documents;

 

(e)                           the Security Documents;

 

(f)                             the Security Trust Agreement;

 

(g)                          the Group Intercreditor Agreement;

 

(h)                          the HYD Intercreditor Agreement and any Supplemental HYD Intercreditor Agreement;

 

(i)                              the Barclays Intercreditor Agreement;

 

(j)                              the Hedging Agreements either entered into pursuant to Clause 24.9 (Hedging) or permitted to be entered into pursuant to Clause 25.12 (Limitation on Hedging);

 

(k)                           each Additional Facility Accession Deed;

 

(l)                              each B Facility Accession Deed;

 

(m)                        each Utilisation Request;

 

(n)                          each Compliance Certificate; and

 

(o)                          any other agreement or document designated a “Relevant Finance Document” in writing by the Facility Agent and the Company.

 

Relevant Finance Parties” means the Facility Agent, the Arrangers, the Bookrunners, the Security Trustee, the Lenders and each Hedge Counterparty and “Relevant Finance Party” means any of them.

 

Relevant Interbank Market” means, in relation to euro, the European Interbank Market and in relation to any other currency, the London interbank market therefor.

 

Relevant Page” means the page of the Reuters screen on which is displayed in relation to LIBOR, BBA LIBOR for the relevant currency, or, in relation to EURIBOR, the European offered rates for euro, or, if such page or service shall cease to be available, such other page or service which displays the London interbank offered rates for the relevant currency as the Facility Agent, after consultation with the Lenders and the Company, shall select.

 

Relevant Proportion” means the proportion (expressed as a percentage) of:

 

(a)                           the aggregate of the A Facility Commitments and B Facility Commitments; to

 

(b)                          the aggregate of all Commitments under this Agreement.

 

47



 

Relevant Tax Jurisdiction” means:

 

(a)                           the United Kingdom, in relation to a UK Borrower; and

 

(b)                          any jurisdiction in which any person is liable to tax by reason of its domicile, residence, place of management or other similar criteria (but not any jurisdiction in respect of which that person is liable to tax by reason only of its having a source of income in that jurisdiction).

 

Renewal Request” means, in relation to a Documentary Credit, a Utilisation Request therefor, in respect of which the proposed Utilisation Date stated in it is the Expiry Date of an existing Documentary Credit and the proposed Sterling Amount is the same or less than the Sterling Amount of that existing Documentary Credit.

 

Repayment Date” means:

 

(a)                           in relation to any Revolving Facility Advance, the last day of its Term;

 

(b)                          in respect of the A Facility Outstandings, the A1 Facility Outstandings and the A2 Facility Outstandings, each of the dates specified in Clause 9.1 (Repayment of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings) as an Amortisation Repayment Date for it and the relevant Final Maturity Date; and

 

(c)                           in respect of the Additional Facility Outstandings, the B Facility Outstandings and the B1 Facility Outstandings, the relevant Final Maturity Date,

 

provided that if any such day is not a Business Day in the relevant jurisdiction for payment, the Repayment Date will be the next succeeding Business Day in the then current calendar month (if there is one) or the preceding Business Day (if there is not).

 

Repayment Instalment” means, in respect of the A Facility Outstandings, the A1 Facility Outstandings and the A2 Facility Outstandings, the amounts required to be paid by way of repayment on each Repayment Date for it.

 

Repeating Representations” means the representations and warranties set out in Clauses 21.2 (Due Organisation), 21.5 (No Immunity), 21.6 (Governing Law and Judgments), 21.9 (Binding Obligations), 21.11 (No Event of Default), 21.18 (Execution of Relevant Finance Documents), 21.27 (Investment Company Act), 21.28 (Margin Stock), 21.33 (US Patriot Act) and 21.34 (Compliance with ERISA).

 

Resignation Letter” means a letter substantially in the form set out in Schedule 15 (Form of Resignation Letter).

 

Reservations” means:

 

(a)                           the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors, the time barring of claims under any applicable law, the possibility that an undertaking to assume liability for or to indemnify against non-payment of any stamp duty or other tax may be void, defences of set-off or counterclaim and similar principles;

 

(b)                          any general principles, reservations or qualifications, in each case as to matters of law as set out in any Legal Opinion delivered to the Facility Agent (provided that where

 

48



 

any such Legal Opinion has been delivered in relation to a particular Obligor and/or a particular document, the said general principles, reservations or qualifications shall only be deemed to apply to such Obligor and/or document (other than in the case where the definition is used in respect of a person and/or a document in respect of which a Legal Opinion has not been rendered under this Agreement where the said general principles, reservations or qualifications shall, to the extent applicable, be deemed to apply to such person and/or document));

 

(c)                           any circumstance arising through a failure to obtain any consent from any lessor, licensor or other counterparty whose consent is required to the grant of any Security over any lease, licence or other agreement or contract on or before the execution of a Security Document;

 

(d)                          the principle that any additional interest imposed under any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

 

(e)                           the principle that in certain circumstances security granted by way of fixed charge may be characterised as a floating charge or that security purported to be constituted by way of an assignment may be recharacterised as a charge;

 

(f)                             the principle that an English court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant; and

 

(g)                          similar principles, rights and defences under the laws of any relevant jurisdiction to the extent that they are relevant and applicable.

 

Restricted Guarantors” means:

 

(a)                           each of the Original Guarantors listed in Part 2 of Schedule 2 (The Restricted Guarantors); and

 

(b)                          any other Guarantor that accedes to this Agreement pursuant to Clause 26.2 (Acceding Guarantors), which is (i) incorporated, created or organised under the laws of the United States or any State of the United States (including the District of Columbia) and is a “United States person” (as defined in Section 7701(a)(30) of the Code); or (ii) treated for US federal income tax purposes as a disregarded entity that is a branch of a Guarantor described in sub-paragraph (b)(i) hereof.

 

Restricted Party” means any person listed in the Annex to the Executive Order referred to in the definition of “Anti-Terrorism Laws” or on the “Specially Designated Nationals and Blocked Persons” list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury.

 

Revised Definitions” has the meaning given to such term in Clause 22.7 (Change in Accounting Practices).

 

Revised Ratios” has the meaning given to such term in Clause 22.7 (Change in Accounting Practices).

 

Revolving Facility” means the revolving loan facility (including any Ancillary Facility and the Documentary Credit facility) granted to the relevant Borrower pursuant to Clause 2.1(c) (The Facilities).

 

49



 

Revolving Facility Instructing Group” means:

 

(a)                           before any Utilisation of the Revolving Facility under this Agreement, a Lender or group of Lenders whose Available Revolving Facility Commitments amount in aggregate to more than 662/3% of the Available Revolving Facility; and

 

(b)                          thereafter, a Lender or group of Lenders to whom in aggregate more than 662/3% of the aggregate amount of the Revolving Facility Outstandings are (or if there are no Revolving Facility Outstandings at such time, immediately prior to their repayment, were then) owed,

 

in each case calculated in accordance with the provisions of Clause 44.7 (Calculation of Consent).

 

Revolving Facility Margin” means, in relation to Revolving Facility Advances and subject to Clause 13.3 (Margin Ratchet for Revolving Facility Advances), 3.50% per annum.

 

Revolving Facility Outstandings” means, at any time, the aggregate outstanding amount of each Revolving Facility Advance and of each Revolving Lenders Participation in an Outstanding L/C Amount.

 

Roll Consent” means, with respect to a Lender, that such Lender has consented, pursuant to Clause 44.2 (Consents), in a form and substance satisfactory to the Facility Agent, with respect to such Lender’s A Facility Commitments and A Facility Outstandings and B Facility Commitments and B Facility Outstandings, becoming A1 Facility Commitments and A1 Facility Outstandings, A2 Facility Commitments and A2 Facility Outstandings and B1 Facility Commitments and B1 Facility Outstandings, as applicable.

 

Roll Effective Date” means 15 February 2010.

 

Rollover Advance” has the meaning given to such term in Clause 8.2 (Rollover Advances).

 

Screenshop” means Screenshop Limited, a company incorporated under the laws of England and Wales with registered number 3529106.

 

Screenshop Intra-Group Loan Agreement” means the loan agreement dated 10 May 2005 between Screenshop and Flextech Broadband Limited.

 

SEC” means the United States Securities and Exchange Commission.

 

Second Amendment Record Date” means 2 February 2011.

 

Security” means the Encumbrances created or purported to be created pursuant to the Security Documents.

 

Security Documents” means:

 

(a)                           each of the Original Security Documents;

 

(b)                          any security documents required to be delivered by an Acceding Obligor pursuant to Clauses 26.1 (Acceding Borrowers) and 26.2 (Acceding Guarantors);

 

(c)                           any other document executed at any time by any member of the Group conferring or evidencing any Encumbrance for or in respect of any of the obligations of the Obligors under this Agreement whether or not specifically required by this Agreement; and

 

50



 

(d)                          any other document executed at any time pursuant to Clause 24.12 (Further Assurance) or any similar covenant in any of the Security Documents referred to in paragraphs (a) to (c) above.

 

Security Trust Agreement” means that certain security trust agreement dated on 3 March 2006 made between the Security Trustee, the Company and certain other parties thereto relating to the appointment of the Security Trustee as trustee of the Security.

 

Senior Secured Notes” means the Existing Senior Secured Notes, any Additional Senior Secured Notes and any Senior Secured Notes Refinancing.

 

Senior Secured Notes Documents” means any Senior Secured Notes, the SSN 2010 Indenture and any other indenture for any Senior Secured Notes, the Group Intercreditor Agreement, the HYD Intercreditor Agreement, any guarantee given by any member of the Group in respect of any Senior Secured Notes, any security documents granting security in favour of the holders of any Senior Secured Notes (or any trustee for such holders or security agent or trustee for such holders or trustee), any note depository agreement, any fee letter and any indemnity letter in relation thereto.

 

Senior Secured Notes Refinancing” means any notes issued by the Parent, VMIH or any SSN Finance Subsidiary for the purposes of refinancing all or a portion of (i) the Senior Secured Notes or (ii) the Facilities or (iii) any other Financial Indebtedness of the Bank Group which is secured and ranks pari passu as to right of payment with the Facilities pursuant to and in compliance with the terms of the Group Intercreditor Agreement (provided, in each case of (i) to (iii) above that such Financial Indebtedness being refinanced would have been permitted to be incurred at the time of issuance of any such notes), in each case, outstanding from time to time (including all fees, expenses, commissions, make-whole and any other contractual premium payable under such Financial Indebtedness being refinanced and any reasonable fees, costs and expenses incurred in connection with such refinancing) and designated as “Senior Secured Notes Refinancing” by written notice from the Company to the Facility Agent and the Security Trustee by the date when the consolidated financial statements are due to be provided pursuant to clause 22.1(a) (Financial Statements) for the first full Financial Quarter after the issuance of the relevant notes, in respect of which the following terms apply:

 

(a)                           the principal amount of any such notes shall not exceed the principal amount of, and any outstanding interest on, the Financial Indebtedness being refinanced (plus all fees, expenses, commissions, make-whole or other contractual premium payable in connection with such refinancing); and

 

(b)                          such notes satisfy the requirements of paragraphs (a), (b), (c), (d) and (f) of the definition of Additional Senior Secured Notes.

 

Sharing Payment” has the meaning given to such term in Clause 35.1(c) (Payments to Relevant Finance Parties).

 

Solvent” and “Solvency” mean, with respect to any US Obligor on a particular date, that on such date (a) the value of the property of such US Obligor (both at present and present fair and present fair sales value) is greater than the total amount of liabilities, including, without limitation, contingent and unliquidated liabilities, of such US Obligor as such liabilities mature, (b) such person does not intend to, and does not believe that it will, incur debts or liabilities beyond such person’s ability to pay such debts and liabilities as they mature and (c) such US Obligor is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such person’s property would constitute an unreasonably small

 

51



 

capital.  The amount of contingent and unliquidated liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

Solvent Liquidation” has the meaning given to such term in Clause 25.18 (Internal Reorganisations).

 

SSN 2010 Indenture” means the indenture dated as of January 19, 2010 among Virgin Media Secured Finance PLC as issuer, The Bank of New York Mellon as trustee and paying agent and the other parties thereto.

 

SSN Finance Subsidiary” means (i) Virgin Media Secured Finance PLC and (ii) any other Subsidiary directly and wholly-owned by either:

 

(a)                           VMIH engaged in the business of effecting or facilitating the issuance of Senior Secured Notes and on-lending the proceeds to VMIH; or

 

(b)                          the Parent engaged in the business of effecting or facilitating the issuance of Senior Secured Notes and on-lending the proceeds to the Parent and/or VMIH,

 

and in either case having no Subsidiaries.

 

Standard & Poor’s” means Standard & Poor’s Ratings Group or any successor thereof.

 

Statutory Requirements” means any applicable provision or requirement of any Act of Parliament (including without limitation, the Communications Act 2003 and the Broadcasting Acts 1990 and 1996) or any instrument, rule or order made under any Act of Parliament or any regulation or by-law of any local or other competent authority or any statutory undertaking or statutory company which has jurisdiction in relation to the carrying out, use, occupation, operation of the properties or the businesses of any member of the Bank Group carried out thereon.

 

Steps Paper” means the alternative papers entitled “Steps Plan: Version 1 — Combination of NTL, Telewest and Virgin Mobile before Structures 1 and 2” and “Steps Plan: Version 2 — Combination of NTL, Telewest and Virgin Mobile after Structures 1 and 2, provided to the Facility Agent prior to the first Utilisation Date.

 

Sterling Amount” means at any time:

 

(a)                           in relation to an Advance denominated in Sterling, the amount thereof, and in relation to any other Advance, the Sterling equivalent of the amount specified in the Utilisation Request (as at the date thereof) for that Advance, in each case, as adjusted, if necessary, in accordance with the terms of this Agreement and to reflect any repayment, consolidation or division of that Advance;

 

(b)                          in relation to a Documentary Credit, (i) if such Documentary Credit is denominated in Sterling, the Outstanding L/C Amount in relation to it at such time or (ii) if such Documentary Credit is not denominated in Sterling, the equivalent in Sterling of the Outstanding L/C Amount at such time, calculated as at the later of (1) the date which falls 2 Business Days before its issue date or any renewal date or (2) the date of any revaluation pursuant to Clause 5.4 (Revaluation of Documentary Credits);

 

52



 

(c)                           in relation to any Ancillary Facility granted by a Lender, the amount of its Revolving Facility Commitment converted to provide its Ancillary Facility Commitment as at the time of such conversion; and

 

(d)                          in relation to any Outstandings, the aggregate of the Sterling Amounts (calculated in accordance with paragraphs (a), (b) and (c) above) of each outstanding Advance and/or Outstanding L/C Amount, made under the relevant Facility or Facilities (as the case may be) and/or in relation to Ancillary Facility Outstandings, (i) if such Outstandings are denominated in Sterling, the aggregate amount of it at such time and (ii) if such Outstandings are not denominated in Sterling, the Sterling equivalent of the aggregate amount of it at such time.

 

Subject Party” has the meaning given to such term in Clause 39.6(d) (Value Added Tax).

 

Subordinated Funding” means any loan made to any Obligor by any member of the Group that is not an Obligor which:

 

(a)                           constitutes Parent Intercompany Debt;

 

(b)                          is an intercompany loan arising under the arrangements referred to in paragraph (d) of the definition of “Permitted Payments”;

 

(c)                           is an intercompany loan existing as at the Original Execution Date (including any inter-company loan the benefit of which has, at any time after the Original Execution Date, been assigned to any other member of the Group, where such assignment is not otherwise prohibited by this Agreement); or

 

(d)                          constitutes Equity Equivalent Funding,

 

provided that (i) Security is promptly granted by the relevant creditor over its rights and (ii) the relevant debtor and creditor are party to the Group Intercreditor Agreement as an Intergroup Debtor or Intergroup Creditor (as such terms are defined in the Group Intercreditor Agreement), respectively, or where the relevant debtor and creditor are party to such other subordination arrangements as may be satisfactory to the Facility Agent, acting reasonably.

 

Subscriber” means any person who has entered into an agreement (which has not expired or been terminated) with an Obligor to be provided with services by an Obligor through the operation of telecommunications and/or television systems operated by the Bank Group in accordance with applicable Telecommunications, Cable and Broadcasting Laws (including any part of such system and all modifications, substitutions, replacements, renewals and extensions made to such systems).

 

Subsidiary” of a company shall be construed as a reference to:

 

(a)                           any company:

 

(i)                              more than 50% of the issued share capital or membership interests of which is beneficially owned, directly or indirectly, by the first-mentioned company; or

 

(ii)                           where the first-mentioned company has the right or ability to control directly or indirectly the affairs or the composition of the board of directors (or equivalent of it) of such company; or

 

(iii)                        which is a Subsidiary of another Subsidiary of the first-mentioned company; or

 

53



 

(b)                          for the purposes of Clause 22 (Financial Information) and Clause 23 (Financial Condition) and any provision of this Agreement where the financial terms defined in Clause 23 (Financial Condition) are used, any legal entity which is accounted for under applicable GAAP as a Subsidiary of the first-mentioned company.

 

Substitute Financing” means any proceeds raised from Additional Senior Secured Notes, Additional High Yield Notes, Subordinated Funding or other Financial Indebtedness permitted under Clause 25.4 (Financial Indebtedness).

 

Successor Entity” has the meaning given to such term in Clause 25.18 (Internal Reorganisations).

 

Supplemental HYD Intercreditor Agreement” means an intercreditor agreement that subordinates any guarantees granted by any member of the Bank Group in respect of any Additional High Yield Notes and/or any High Yield Refinancing on terms satisfactory to the Facility Agent or on terms substantially the same as the HYD Intercreditor Agreement.

 

Supplier” has the meaning given to such term in Clause 39.6(d) (Value Added Tax).

 

TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system is open for the settlement of payments in euro.

 

Tax Cooperation Agreement” means the agreement dated 3 March 2006 between the Ultimate Parent, the Company and Telewest Communications Networks Limited relating to arrangements in connection with, amongst other things, the payment of US taxes.

 

Tax Credit” means a credit against, relief or remission for, or repayment of any tax.

 

Tax Deduction” means a deduction or withholding for or on account of tax from a payment made or to be made under a Relevant Finance Document.

 

Taxes Act” means the Income and Corporation Taxes Act 1988.

 

Tax Liability” has the meaning set out in paragraph (e) of Clause 17.3 (Tax Indemnity).

 

Tax on Overall Net Income” has the meaning set out in paragraph (e) of Clause 17.3 (Tax Indemnity).

 

Tax Payment” means the increase in any payment made by an Obligor to a Relevant Finance Party under paragraph (c) of Clause 17.1 (Tax Gross-up) or any amount payable under paragraph (d) of Clause 17.1 (Tax Gross-up) or under Clause 17.3 (Tax Indemnity).

 

Telecommunications, Cable and Broadcasting Laws” means the Telecommunications Act 1984, the Broadcasting Act 1990 (together with the Broadcasting Act 1996), the Communications Act 2003 and all other laws, statutes, regulations and judgments relating to broadcasting or telecommunications or cable television or broadcasting applicable to any member of the Bank Group, and/or the business carried on by, any member of the Bank Group (for the avoidance of doubt, not including laws, statutes, regulations or judgments relating solely to consumer credit, data protection or intellectual property).

 

Term” means:

 

(a)                           in relation to a Revolving Facility Advance, the period for which such Advance is borrowed as specified in the relevant Utilisation Request; and

 

54



 

(b)                          in relation to any Documentary Credit, the period from the date of its issue until its Expiry Date.

 

Term Facilities” means the A Facility, the A1 Facility, the A2 Facility, each Additional Facility (other than any Additional Facility which by its terms is a revolving loan facility) the B Facility and the B1 Facility, and “Term Facility” means any of them, as the context requires.

 

Term Facility Advance” means any A Facility Advance, any A1 Facility Advance, any A2 Facility Advance, any Additional Facility Advance (other than any Additional Facility Advance under any Additional Facility which by its terms is a revolving loan facility), any B Facility Advance and any B1 Facility Advance and “Term Facility Advances” shall be construed accordingly.

 

Term Facility Outstandings” means, at any time, the aggregate of the A Facility Outstandings, the A1 Facility Outstandings, the A2 Facility Outstandings, the Additional Facility Outstandings (other than any Additional Facility Outstandings under any Additional Facility which by its terms is a revolving loan facility), the B Facility Outstandings and the B1 Facility Outstandings, at such time.

 

Termination Date” means:

 

(a)                           in relation to the Revolving Facility, the date which is 30 days prior to the Final Maturity Date in respect of the Revolving Facility;

 

(b)                          in relation to the A Facility, the A1 Facility and the A2 Facility, the date falling three months after the Original Execution Date;

 

(c)                           in relation to the B Facility and the B1 Facility, the termination date specified in the B Facility Accession Deed;

 

(d)                          in relation to each Ancillary Facility, the relevant Ancillary Facility Termination Date; and

 

(e)                           in relation to each Additional Facility, the Additional Facility Termination Date specified in the relevant Additional Facility Accession Deed.

 

Testing Time” has the meaning given to such term in Clause 24.12(f) (Further Assurance).

 

Total Assets” means, as of any date of determination, the fixed assets and current assets shown on the most recent consolidated balance sheet of the Bank Group delivered pursuant to Clause 22.1 (Financial Statements).

 

Total Purchase Price” has the meaning given to such term in Clause 25.13(m) (Acquisitions and Investments).

 

Trade Instruments” means any performance bonds, advance payment bonds or documentary letters of credit issued in respect of the obligations (not including Financial Indebtedness) of any member of the Group arising in the ordinary course of trading of that member of the Group.

 

Transfer Date” means, in relation to any Transfer Deed, the effective date of such transfer as specified in such Transfer Deed.

 

Transfer Deed” means a duly completed deed of transfer and accession in the form set out in Part 1 of Schedule 5 (Form of Deed of Transfer and Accession) whereby an existing

 

55



 

Lender seeks to transfer to a New Lender all or a part of such existing Lender’s rights, benefits and obligations under this Agreement as contemplated in Clause 37 (Assignments and Transfers) and such New Lender agrees to accept such transfer and to be bound by this Agreement and to accede to the HYD Intercreditor Agreement, the Group Intercreditor Agreement and the Security Trust Agreement.

 

Transferor” has the meaning given to such term in Clause 37.8(a) (Limitation of Responsibility of Transferor).

 

UK Bank Lender” means, in relation to a payment of interest on a participation in an Advance to a Borrower, a Lender which is beneficially entitled to and within the charge to United Kingdom corporation tax as regards that payment and (a) if the participation in that Advance was made by it, is a Lender which is a “bank” (as defined for the purposes of section 879 of the ITA in section 991 of the ITA) or (b) if the participation in that Advance was made by a different person, such person was a “bank” (as defined for the purposes of section 879 of the ITA in section 991 of the ITA) at the time that Advance was made.

 

UK Borrowers” means:

 

(a)                           as at the Original Execution Date, each of the Original Borrowers; and

 

(b)                          thereafter, each of the Original Borrowers and any Acceding Borrower that is liable to corporation tax in the United Kingdom,

 

excluding any UK Borrower which has been liquidated in accordance with the provisions of Clause 25.18 (Internal Reorganisations) but including the relevant Successor Entity (provided it is also liable to corporation tax in the United Kingdom) thereafter, and “UK Borrower” means any of them.

 

UK Channel Management” means UK Channel Management Limited, a company incorporated in England and Wales with registered number 3322468, whose registered office is at 160 Great Portland Street, London W1W 5QA.

 

UK Channel Management Group” means the UK Channel Management and its Subsidiaries from time to time.

 

UK DB Schemes” has the meaning given to such term in Clause 24.10(b) (Pension Plans).

 

UK Gold” means UK Gold Holdings Limited, a company incorporated in England and Wales with registered number 3298738, whose registered office is at 160 Great Portland Street, London W1W 5QA.

 

UK Gold Group” means UK Gold and its Subsidiaries from time to time.

 

UK Non-Bank Lender” means, in relation to a payment of interest on an Advance to a Borrower:

 

(a)                           a Lender which is beneficially entitled to the income in respect of which that payment is made and is a UK Resident company (such that the payment is within the category of expected payments described at section 933 ITA); or

 

(b)                          a Lender to which such payment would fall within one of the categories of expected payments described at sections 934 to 937 ITA inclusive,

 

56



 

where H.M. Revenue & Customs has not given a direction under section 931 ITA which relates to that payment of interest on an Advance to such Borrower.

 

UK Pension Scheme” means a pension scheme in which any member of the Group participates or has at any time participated, and which has its main administration in the United Kingdom or is primarily for the benefit of employees in the United Kingdom.

 

UK Resident” means a person who is resident in the United Kingdom for the purposes of the Taxes Act, ITA or CTA, and “non-UK Resident” shall be construed accordingly.

 

UK Treaty Lender” means in relation to a payment of interest on an Advance to a UK Borrower, a Lender which is entitled to claim full relief from liability to taxation otherwise imposed by such UK Borrower’s Relevant Tax Jurisdiction (in relation to that Lender’s participation in Advances made to such UK Borrower) on interest under a Double Taxation Treaty and which does not carry on business in that UK Borrower’s Relevant Tax Jurisdiction through a permanent establishment with which that Lender’s participation in that Advance is effectively connected and, in relation to any payment of interest on any Advance made by that Lender, such UK Borrower has, unless provided otherwise in a B Facility Accession Deed, received notification (or will have received notification prior to the end of the first Interest Period hereunder) in writing from H.M. Revenue & Customs authorising such UK Borrower to pay interest on such Advances without any Tax Deduction.

 

UKTV Group” means each of the UK Channel Management Group, UK Gold Group and UKTV New Ventures Group.

 

UKTV Joint Ventures” means each of UK Channel Management, UK Gold and UKTV New Ventures.

 

UKTV New Ventures” means UKTV New Ventures Limited, a company incorporated in England and Wales with registered number 04266373, whose registered office is at 160 Great Portland Street, London W1W 5QA.

 

UKTV New Ventures Group” means the UKTV New Ventures and its Subsidiaries from time to time.

 

Ultimate Parent” means, as at the Original Execution Date, Virgin Media Inc. or, at any time thereafter, the person (if any) that accedes to this Agreement as the Ultimate Parent pursuant to Clause 26.3 (Acceding Holding Company).

 

United States” or “US” means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America;

 

Unpaid Sum” means any sum due and payable by an Obligor under any Relevant Finance Document (other than any Ancillary Facility Document) but unpaid.

 

US Bankruptcy Code” means the Bankruptcy Reform Act of 1978, 11 USC. §§ 101 et seq., as amended, or any successor thereto;

 

US Dollars”, “Dollars” or “$” means the lawful currency for the time being of the United States;

 

US Obligor” means any Restricted Guarantor incorporated, created or organised under the laws of the United States or any State of the United States (including the District of Columbia).

 

57



 

Utilisation” means the utilisation of a Facility under this Agreement, whether by way of an Advance, the issue of a Documentary Credit or the utilisation of any Ancillary Facility.

 

Utilisation Date” means:

 

(a)                           in relation to an Advance, the date on which such Advance is (or is requested) to be made;

 

(b)                          in relation to a utilisation by way of Ancillary Facility, the date on which such Ancillary Facility is established; and

 

(c)                           in relation to a utilisation by way of Documentary Credit, the date on which such Documentary Credit is to be issued, in each case,

 

in accordance with the terms of this Agreement.

 

Utilisation Request” means:

 

(a)                           in relation to an Advance a duly completed notice in the form set out in Part 1 to Schedule 4 (Form of Utilisation Request (Advances)); or

 

(b)                          in relation to a Documentary Credit, a duly completed notice in the form set out in Part 2 to Schedule 4 (Form of Utilisation Request (Documentary Credits)).

 

Vendor Financing Arrangements” means any arrangement, contractual or otherwise, pursuant to which credit or other financing is provided or arranged by a supplier (or any of its Affiliates) of assets (including equipment) and/or related services to a member of the Bank Group in connection with such supply of assets and/or services.

 

Virgin Media Communications” means Virgin Media Communications Limited, a company incorporated in England and Wales with registered number 3521915, whose registered office is at 160 Great Portland Street, London W1W 5QA.

 

Virgin Media Holding Company” means any person of which the Company is a direct or indirect wholly-owned Subsidiary.

 

Voting Stock” of a person means all classes of capital stock, share capital or other interests (including partnership interests) of such person then outstanding and normally entitled (without regard to the occurrence of any contingency, other than resulting from any default under any instrument until such default occurs) to vote in the election of directors, managers or trustees thereof.

 

Website Lenders” has the meaning given to such term in Clause 41.3(a) (Use of Websites/E-mail).

 

Working Capital” has the meaning given to such term in Clause 23.1 (Financial Definitions).

 

1.2                                     Accounting Expressions

 

All accounting expressions which are not otherwise defined in this Agreement shall be construed in accordance with GAAP.

 

58



 

1.3                                     Construction

 

Unless a contrary indication appears, any reference in this Agreement to:

 

(a)                           the “Facility Agent”, a “Global Coordinator”, a “Physical Bookrunner”, a “Mandated Lead Arranger”, a “Bookrunner”, the “Security Trustee”, a “Hedge Counterparty”, an “L/C Bank”, an “Ancillary Facility Lender” or a “Lender” shall be construed so as to include their respective and any subsequent successors, transferees and permitted assigns in accordance with their respective interests;

 

(b)                          agreed form” means, in relation to any document, in the form agreed by or on behalf of the Bookrunners and the Company prior to the Original Execution Date;

 

(c)                           assets” includes present and future properties, revenues and rights of every description;

 

(d)                          company” includes any body corporate;

 

(e)                           continuing” in relation to an Event of Default or a Default shall be construed as meaning that (a) the circumstances constituting such Event of Default or Default continue or (b) neither the Facility Agent (being duly authorised to do so) nor the Lenders have waived, in accordance with this Agreement, such of its or their rights under this Agreement as arise as a result of that event;

 

(f)                             determines” or “determined” means, save as otherwise provided herein, a determination made in the absolute discretion of the person making the determination;

 

(g)                          the “equivalent” on any given date in one currency (the “first currency”) of an amount denominated in another currency (the “second currency”) is a reference to the amount of the first currency which could be purchased with the second currency at the Facility Agent’s Spot Rate of Exchange at or about 11:00 a.m. on the relevant date for the purchase of the first currency with the second currency or for the purposes of determining any amounts testing any covenant or determining whether an Event of Default has occurred under this Agreement:

 

(i)                              in the case of any basket or threshold amount qualifying a covenant:

 

(A)                           in order to determine how much of such basket or threshold has been used at any time, for each transaction entered into in reliance upon the utilisation of such basket or in reliance upon such threshold not being reached prior to such time, the date upon which such transaction was entered into; and

 

(B)                             in order to determine the permissibility of a proposed transaction, on the date upon which the permissibility of that transaction is being tested for the purposes of determining compliance with that covenant; and

 

(ii)                           in the case of any basket or threshold amount relating to an Event of Default, the date on which the relevant event is being assessed for the purposes of determining whether such Event of Default has occurred,

 

provided that in the case of Financial Indebtedness proposed to be incurred to refinance other Financial Indebtedness denominated in a currency other than Sterling or other than the currency in which such refinanced Financial Indebtedness is denominated, if such refinancing would cause any applicable Sterling-denominated

 

59



 

restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Sterling denominated restriction shall be deemed not to be exceeded so long as the principal amount of such refinancing Financial Indebtedness does not exceed the principal amount of such Financial Indebtedness being refinanced in the applicable currency at the then current exchange rate;

 

(h)                          guarantee” means (other than in Clause 29 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

(i)                              month” is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that, where any such period would otherwise end on a day which is not a Business Day, it shall end on the next succeeding Business Day, unless that day falls in the calendar month succeeding that in which it would otherwise have ended, in which case it shall end on the immediately preceding Business Day provided that, if a period starts on the last Business Day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that later month (provided that in any reference to “months” only the last month in a period shall be construed in the aforementioned manner);

 

(j)                              a Lender’s “participation” in relation to a Documentary Credit, shall be construed as a reference to the relevant amount that is or may be payable by that Lender in relation to that Documentary Credit;

 

(k)                           a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);

 

(l)                              a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

(m)                        a “repayment” shall include a “prepayment” and references to “repay” or “prepay” shall be construed accordingly;

 

(n)                          tax” shall be construed so as to include all present and future taxes, charges, imposts, duties, levies, deductions or withholdings of any kind whatsoever, or any amount payable on account of or as security for any of the foregoing, by whomsoever on whomsoever and wherever imposed, levied, collected, withheld or assessed together with any penalties, additions, fines, surcharges or interest relating to it; and “taxes” and “taxation” shall be construed accordingly;

 

(o)                          VAT” shall be construed as value added tax as provided for in the Value Added Tax Act 1994 and legislation (or purported legislation and whether delegated or otherwise) supplemental to that Act or in any primary or secondary legislation promulgated by the European Community or European Union or any official body or agency of the European Community or European Union, and any tax similar or equivalent to value

 

60



 

added tax imposed by any country other than the United Kingdom and any similar or turnover tax replacing or introduced in addition to any of the same;

 

(p)                          wholly-owned Subsidiary” of a company shall be construed as a reference to any company which has no other members except that other company and that other company’s wholly-owned Subsidiaries or nominees for that other company or its wholly-owned Subsidiaries;

 

(q)                          the “winding-up”, “dissolution” or “administration” of a company shall be construed so as to include any equivalent or analogous proceedings under the Law of the jurisdiction in which such company is incorporated, established or organised or any jurisdiction in which such company carries on business, including the seeking of liquidation, winding up, reorganisation, dissolution, administration, arrangement, adjustment, protection from creditors or relief of debtors;

 

(r)                             a Borrower providing “cash cover” for a Documentary Credit or an Ancillary Facility means a Borrower paying an amount in the currency of the Documentary Credit (or, as the case may be, Ancillary Facility) to an interest-bearing account in the name of the Borrower and the following conditions being met:

 

(i)                              the account is with the Security Trustee or with the L/C Bank or Ancillary Facility Lender for which that cash cover is to be provided;

 

(ii)                           subject to paragraph (b) of Clause 5.9 (Cash Cover by Borrower), until no amount is or may be outstanding under that Documentary Credit or Ancillary Facility, withdrawals from the account may only be made to pay a Relevant Finance Party amounts due and payable to it under this Agreement in respect of that Documentary Credit or Ancillary Facility; and

 

(iii)                        the Borrower has executed a security document over that account, in form and substance satisfactory to the Security Trustee or the L/C Bank or Ancillary Facility Lender with which that account is held, creating a first ranking security interest over that account;

 

(s)                           a Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied or waived;

 

(t)                             a Borrower “repaying” or “prepaying” a Documentary Credit or Ancillary Facility Outstandings means:

 

(i)                              that Borrower providing cash cover for that Documentary Credit or in respect of the Ancillary Facility Outstandings;

 

(ii)                           the maximum amount payable under the Documentary Credit or Ancillary Facility being reduced or cancelled in accordance with its terms; or

 

(iii)                        the relevant L/C Bank or Ancillary Facility Lender being satisfied that it has no further liability under that Documentary Credit or Ancillary Facility, and the amount by which a Documentary Credit is, or Ancillary Outstandings are, repaid or prepaid under paragraphs (i) and (ii) above is the amount of the relevant cash cover or reduction;

 

(u)                          an amount “borrowed” includes any amount utilised by way of Documentary Credit or under an Ancillary Facility;

 

61



 

(v)                          a Lender funding its participation in a Utilisation includes a Lender participating in a Documentary Credit; and

 

(w)                        an “outstanding amount” of a Documentary Credit at any time is the maximum amount that is or may be payable by the relevant Borrower in respect of that Documentary Credit at that time.

 

1.4                                     Currency

 

” and “euro” denote the lawful currency of each Participating Member State, “£” and “Sterling” denote the lawful currency of the United Kingdom and “$” and “Dollars” denote the lawful currency of the United States.

 

1.5                                     Statutes

 

Any reference in this Agreement to a statute or a statutory provision shall, save where a contrary intention is specified, be construed as a reference to such statute or statutory provision as the same shall have been, or may be, amended or re enacted.

 

1.6                                     Time

 

Any reference in this Agreement to a time shall, unless otherwise specified, be construed as a reference to London time.

 

1.7                                     References to Agreements

 

Unless otherwise stated, any reference in this Agreement to any agreement, indenture or any other document (including any reference to this Agreement) shall be construed as a reference to:

 

(a)                           such agreement, indenture or any other document as amended, varied, novated or supplemented from time to time;

 

(b)                          any other agreement, indenture or any other document whereby such agreement or document is so amended, varied, supplemented or novated; and

 

(c)                           any other agreement, indenture or any other document entered into pursuant to or in accordance with any such agreement or document.

 

1.8                                     No Personal Liability

 

No personal liability shall attach to any director, officer or employee of any member of the Group for any representation or statement made by that member of the Group in a certificate signed by such director, officer or employee.

 

2.                                           THE FACILITIES

 

2.1                                     The Facilities

 

The Lenders grant upon the terms and subject to the conditions of this Agreement:

 

(a)                           to the Original Borrowers,

 

(i)                              a term loan facility in a maximum aggregate principal amount of £1,000,000,000 (the “A Facility”) which shall be available in Sterling in a single drawing; provided that the amount of the A Facility on the Roll Effective

 

62



 

Date shall be reduced by the aggregate amount of the A1 Facility and the A2 Facility on such date as provided in Clause 2.3 (Roll Effective Date);

 

(ii)                           on and from the Roll Effective Date, a term loan facility in a maximum amount of the aggregate A1 Facility Commitments (“A1 Facility”) which shall be available in Sterling and shall be fully drawn on the Roll Effective Date by transfer of Outstandings from the A Facility as provided in Clause 2.3 (Roll Effective Date); and

 

(iii)                        on and from the Roll Effective Date, a term loan facility in a maximum amount of the aggregate A2 Facility Commitments (“A2 Facility”) which shall be available in Sterling and shall be fully drawn on the Roll Effective Date by transfer of Outstandings from the A Facility as provided in Clause 2.3 (Roll Effective Date);

 

(b)                          to the Company, VMIH Sub and/or UK Newco,

 

(i)                              the B Facility which shall be available in Sterling, Dollar or euro (as provided in the B Facility Accession Deed) provided that the B Facility shall be drawn in a single drawing and in a single currency, in an aggregate principal amount for the B Facility of not more than £750,000,000; provided further that the amount of the B Facility on the Roll Effective Date shall be reduced by the amount of the B1 Facility on such date as provided in Clause 2.3 (Roll Effective Date); and

 

(ii)                           on and from the Roll Effective Date, a term loan facility in a maximum amount of the aggregate B1 Facility Commitments (“B1 Facility”) which shall be in available in Sterling and shall be fully drawn on the Roll Effective Date by transfer of Outstandings from the B Facility as provided in Clause 2.3 (Roll Effective Date);and

 

(c)                           to the UK Borrowers, a revolving loan facility in a maximum aggregate principal amount of £250,000,000 (the “Revolving Facility”) which shall be available for drawing in euro, Dollars, Sterling or any Optional Currency subject to the utilisation in full of the A Facility.

 

2.2                                     Increase

 

(a)                           The Company may by giving prior notice to the Facility Agent by no later than the date falling 20 Business Days after the effective date of a cancellation of:

 

(i)                              the Available Commitments of a Defaulting Lender in accordance with Clause 10.5 (Right of Cancellation in Relation to a Defaulting Lender); or

 

(ii)                           the Commitments of a Lender in accordance with Clause 19 (Illegality),

 

request that the Commitments be increased (and the Commitments under that Facility shall be so increased) in an aggregate amount in the relevant currency of up to the amount of the Available Commitments or Commitments so cancelled as follows:

 

(A)                     the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities other than any member of the Group (each an “Increase Lender”) selected by the Company (each of which shall be acceptable to the Facility Agent (acting reasonably)) and each of which confirms its willingness to

 

63



 

assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume as if it had been an Original Lender;

 

(B)                       each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

(C)                       each Increase Lender shall become a party to this Agreement as a “Lender” and any Increase Lender and each of the other Relevant Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Relevant Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

(D)                      the Commitments of the other Lenders shall continue in full force and effect; and

 

(E)                        any increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

 

(b)                          An increase in the Commitments will only be effective on:

 

(i)                              the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender;

 

(ii)                           in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:

 

(A)                     the Increase Lender entering into the documentation required for it to accede as a party to the Group Intercreditor Agreement, HYD Intercreditor Agreement and Security Trust Agreement; and

 

(B)                       the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify to the Company, the Increase Lender and each L/C Bank; and

 

(iii)                        in the case of an increase in the Revolving Facility Commitments, each L/C Bank consenting to their increase.

 

(c)                           Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

(d)                          Clause 37.7 (Transfer Deed) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

64



 

(i)                              a “Transferor” were references to all the Lenders immediately prior to the relevant increase;

 

(ii)                           the “New Lender” were references to that “Increase Lender”; and

 

(iii)                        a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.

 

2.3                                     Roll Effective Date

 

(a)                           With effect on the Roll Effective Date, each Lender that has given a Roll Consent (each a “Rolling Lender”) and has, as of the Second Amendment Record Date:

 

(i)                              an A Facility Commitment shall acquire an A1 Facility Commitment or an A2 Facility Commitment, as applicable, in the amount of such A Facility Commitment and concurrently therewith:

 

(A)                           such Lender’s participation in any Outstandings under the A Facility shall be treated as being outstanding under the A1 Facility or the A2 Facility, as applicable, and no longer outstanding under the A Facility;

 

(B)                             such Lender’s A Facility Commitment shall be reduced to zero; and

 

(C)                             no further Utilisations of the A1 Facility or the A2 Facility may be made under this Agreement;

 

(ii)                           a B Facility Commitment shall acquire a B1 Facility Commitment in the amount of such B Facility Commitment and concurrently therewith:

 

(A)                           such Lender’s participation in any Outstandings under the B Facility shall be treated as being outstanding under the B1 Facility and no longer outstanding under the B Facility;

 

(B)                             such Lender’s B Facility Commitment shall be reduced to zero; and

 

(C)                             no further Utilisations of the B1 Facility may be made under this Agreement.

 

(b)                          If by operation of paragraph (a) above any participation of a Rolling Lender in Outstandings or any part of such Outstandings (in either case, the “Rolling Outstanding Amount”) under one Facility (the “First Facility”) becomes a participation of such Rolling Lender in Outstandings under another Facility (the “Second Facility”) on a day other than the last day of the Interest Period in relation to the Rolling Outstanding Amount under the First Facility (the “Current Interest Period”), notwithstanding any other provision of this Agreement:

 

(i)                              the first Interest Period for such Rolling Outstanding Amount under the Second Facility shall have a duration equal to the unexpired portion of the Current Interest Period;

 

(ii)                           EURIBOR or LIBOR (as applicable to such Rolling Outstanding Amount) for purposes of determining the rate of interest payable under this Agreement on such Rolling Outstanding Amount for such first Interest Period shall be the rate thereof which would have applied if the Rolling Outstanding Amount had

 

65



 

remained outstanding under the First Facility for the remainder of the Current Interest Period; and

 

(iii)                        all interest and any other amounts accrued but unpaid under the Relevant Finance Documents on the Rolling Outstanding Amount on or before the Roll Effective Date under the First Facility, shall be due and payable on the last day of the Current Interest Period.

 

(c)                           Notwithstanding any other term of this Agreement or the Relevant Finance Documents, no transfer of Outstandings from one Facility to another Facility under this Clause 2.3 shall be deemed a prepayment of any of the Facilities for purposes of Clause 11 (Voluntary Prepayment) or Clause 12 (Mandatory Prepayment).

 

2.4                                     Purpose

 

(a)                           The A Facility, the A1 Facility, the A2 Facility, the B Facility and the B1 Facility shall be applied:

 

(i)                              towards financing the repayment in full of all amounts due and payable under the Existing Senior Credit Facilities Agreement (including in each case without limitation, by way of principal, interest, break costs, fees and expenses, legal fees, commission and any other premiums);

 

(ii)                           towards financing any fees, costs and expenses (including, without limitation, legal fees) due and payable under the Relevant Finance Documents and any other fees, costs and expenses (including, without limitation, legal fees) incurred by the Obligors in connection with the negotiation and preparation of the Relevant Finance Documents; and

 

(iii)                        to the extent any amounts remain after application in accordance with paragraphs (i) and (ii) above, for the general corporate purposes of the Bank Group, including without limitation repurchase or repayment of any High Yield Notes.

 

(b)                          The Revolving Facility shall be applied for the purposes of financing the ongoing working capital requirements and the general corporate purposes of the Bank Group and may be utilised by way of Revolving Facility Advances, Documentary Credits or, subject to the provisions of Clause 6 (Ancillary Facilities), Ancillary Facilities.

 

(c)                           Each Borrower shall apply all amounts borrowed under this Agreement in or towards satisfaction of the purposes referred to in paragraphs (a) and (b) above (as applicable) and none of the Relevant Finance Parties shall be obliged to concern themselves with such application.

 

2.5                                     Relevant Finance Parties’ Rights and Obligations

 

(a)                           The obligations of each Relevant Finance Party under the Relevant Finance Documents are several.  Failure by a Relevant Finance Party to perform its obligations under the Relevant Finance Documents does not affect the obligations of any other party under the Relevant Finance Documents.  No Relevant Finance Party is responsible for the obligations of any other Relevant Finance Party under the Relevant Finance Documents.

 

(b)                          The rights of each Relevant Finance Party under or in connection with the Relevant Finance Documents are separate and independent rights and any debt arising under

 

66



 

the Relevant Finance Documents to a Relevant Finance Party from an Obligor shall be a separate and independent debt.

 

(c)                           A Relevant Finance Party may, except as otherwise stated in the Relevant Finance Documents, separately enforce its rights under the Relevant Finance Documents.

 

2.6                                     Additional Facility

 

(a)                           The Company may notify the Facility Agent by no less than 5 Business Days notice that it wishes to establish one or more additional facilities (each an “Additional Facility”) by delivery to the Facility Agent of a duly completed Additional Facility Accession Deed, duly executed by the Company, each Additional Facility Lender for the Additional Facility and each Additional Facility Borrower for the relevant Additional Facility, provided, in respect of each Additional Facility, that:

 

(i)                              no Event of Default is continuing;

 

(ii)                           the terms of that Additional Facility provide that no Utilisation may be made if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;

 

(iii)                        the Final Maturity Date applicable to that Additional Facility shall be no earlier than 30 June 2015 and, in the event that such Additional Facility provides for any scheduled repayments prior to 30 June 2015, the weighted average life to maturity of such Additional Facility shall not be shorter than the weighted average life to maturity of any A Facility, A1 Facility or A2 Facility outstanding under this Agreement at the time of establishment of such Additional Facility;

 

(iv)                       each Additional Facility Borrower for that Additional Facility is an existing Obligor;

 

(v)                          the principal amount, interest rate, Final Maturity Date, use of proceeds, repayment schedule, availability, fees and related provisions and the currency of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Additional Facility Lenders (and, in the case of currency, the Facility Agent) and set out in the relevant Additional Facility Accession Deed;

 

(vi)                       with respect to any Additional Facility the proceeds of which are not applied in repayment or prepayment of any of the Facilities or Existing Financial Indebtedness (in each case, in whole or in part), the Company can demonstrate that (A) the pro forma Leverage Ratio (giving effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) would not exceed the Leverage Ratio required in order to incur any Financial Indebtedness pursuant to Clause 25.4(p) (Financial Indebtedness) and (B) the pro forma ratio of Consolidated Senior Net Debt (giving effect to such incurrence and the use of proceeds thereof and giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) to Consolidated Operating Cashflow for the Quarter Date prior to such incurrence would not exceed the

 

67



 

ratio set out in Clause 25.2(o) (Negative Pledge) for the Quarter Date following such incurrence;

 

(vii)                    the relevant Additional Facility Accession Deed shall specify whether that Additional Facility is in form of a term loan or a revolving loan, provided that an Additional Facility shall only be permitted to be established in the form of a revolving facility if the Revolving Facility Commitments at such time are equal to zero;

 

(viii)                 unless otherwise set out in the relevant Additional Facility Accession Deed, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement including, without limitation, with respect to, interest period, conditions precedent, tax gross-up provisions and indemnity provisions, representations and warranties, utilisation mechanics, cancellation and prepayment (including the treatment of that Additional Facility under the prepayment waterfall), fees, costs and expenses, transfers, voting, amendments and waivers, financial and non-financial covenants and events of default; and

 

(ix)                         if any terms relating to prepayment, financial and non-financial covenants and events of default are proposed in the relevant Additional Facility Accession Deed to be substantially different from the terms of this Agreement, the terms (other than relating to dividends and restricted payments) shall give no independent rights to the relevant Additional Facility Lenders (as a separate class) to accelerate (but without prejudice to their rights as part of the Instructing Group under Clauses 27.17 (Acceleration) or 27.18 (Repayment on Demand)) provided that, unless otherwise indicated in the relevant Additional Facility Accession Deed, any covenants or events of default in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings), Clause 25 (Negative Undertakings) and Clause 27 (Events of Default) shall also then apply, mutatis mutandis, to the other Facilities).

 

(b)                          Each Additional Facility Accession Deed shall confirm that the requirements in paragraph (a) above are fulfilled and shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrowers (the “Additional Facility Commencement Date”).

 

(c)                           Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Deed.

 

(d)                          Each Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Security in accordance with the terms of the Group Intercreditor Agreement and the Security Documents pari passu with the other Facilities provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Security on a junior basis to the other Facilities which, if so agreed, shall be set out in the relevant Additional Facility Accession Deed.

 

(e)                           Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) irrevocably authorises and instructs the Facility Agent to execute

 

68



 

on its behalf any Additional Facility Accession Deed which has been duly completed and signed on behalf of each proposed Additional Facility Lender, the Company and each proposed Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.

 

(f)                             The Facility Agent shall only be obliged to execute an Additional Facility Accession Deed delivered to it if:

 

(i)                              the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Relevant Finance Documents arising in relation to the relevant Additional Facility are satisfactory to it; and

 

(ii)                           it is satisfied that it has complied with all necessary “know your client” or other similar checks under all applicable law and regulations in relation to the accession of the relevant Additional Facility Lenders.

 

For the avoidance of doubt, if any terms of an Additional Facility that affect the Facility Agent or L/C Bank in such capacity are different in any material respect from those applying under this Agreement on the Original Execution Date, such differences must be satisfactory to the Facility Agent and L/C Bank if it affects the Facility Agent or L/C Bank in any material and adverse respect.

 

(g)                          On the date that the Facility Agent executes an Additional Facility Accession Deed:

 

(i)                              each Additional Facility Lender party to that Additional Facility Accession Deed, each other Relevant Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and

 

(ii)                           each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.

 

(h)                          The execution by the Company of an Additional Facility Accession Deed constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Relevant Finance Party including such Additional Facility Lender.

 

(i)                              The Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Relevant Finance Document (in accordance with the terms of this Clause 2.6) to reflect the terms of each Additional Facility without the consent of any Lender other than the applicable Additional Facility Lender.

 

3.                                           CONDITIONS

 

3.1                                     Conditions Precedent

 

The obligations of the Lenders to make the A Facility, the A1 Facility, the A2 Facility, the B Facility, the B1 Facility and the Revolving Facility available shall be conditional upon:

 

69



 

(a)                           the Facility Agent having confirmed to the Company that it has received (or has waived in accordance with this Agreement, the requirement to receive) the documents listed in paragraphs 1 to 15 of Part 1 of Schedule 3 (Conditions Precedent to First Utilisation) and that each is satisfactory, in form and substance, to the Facility Agent, acting reasonably.  The Facility Agent shall notify the Company and the Lenders promptly upon being so satisfied; and

 

(b)                          the Borrowers having obtained B Facility Commitments (or other Substitute Financing) in an aggregate principal amount of not less than £600,000,000.

 

Furthermore, the obligations of the Lenders to make the Revolving Facility available shall be conditional upon utilisation of the A Facility.

 

3.2                                     Further Conditions Precedent

 

Subject to Clause 3.1 (Conditions Precedent), the Lenders will only be obliged to comply with Clause 4.2 (Lenders’ Participations) in relation to any Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(a)                           other than in the case of a Rollover Advance, no Default is continuing or would result from the proposed Utilisation; and

 

(b)                          in relation to any Utilisation on the first Utilisation Date, all the representations and warranties in Clause 21 (Representations and Warranties) or, in relation to any other Utilisation, the Repeating Representations to be made by each Obligor are true in all material respects in each case by reference to the facts and circumstances then subsisting.

 

3.3                                     Conditions Subsequent

 

The Company shall procure (and each relevant Obligor shall ensure) that within 60 days after the Original Execution Date, there shall have been delivered to the Facility Agent each of the documents listed in Part 2 of Schedule 3 (Conditions Subsequent Documents) each in form and substance satisfactory to the Facility Agent, acting reasonably.  The Facility Agent shall notify the Company and the Lenders promptly upon being so satisfied.

 

4.                                           UTILISATION

 

4.1                                     Conditions to Utilisation

 

Save as otherwise provided in this Agreement, an Advance will be made by the Lenders to a Borrower or a Documentary Credit will be issued by an L/C Bank at a Borrower’s request if:

 

(a)                           in the case of an Advance, the Facility Agent has received from such Borrower a duly completed Utilisation Request in the relevant form, and in the case of a Documentary Credit, both the Facility Agent and the relevant L/C Bank have received from a Borrower a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is 10 Business Days and no later than 2:00 p.m. on the day which is 3 Business Days (or in the case of any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 2:00 p.m. on the day which is 3 Business Days) prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige such Borrower to utilise the amount requested on the Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement;

 

70



 

(b)                          the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;

 

(c)                           the proposed Utilisation Date for the A Facility Advance and all B Facilities Advances falls on the same Business Day;

 

(d)                          in the case of a Utilisation by way of Term Facility Advance, such Utilisation would result in the maximum principal amount of the Term Facility Advance being utilised, or in the case of a Utilisation by way of a Revolving Facility Advance, such Utilisation occurs on or after the maximum principal amount of the A Facility being utilised and, the proposed Sterling Amount (or its equivalent) of such Revolving Facility Advance is (i) equal to the amount of the Available Revolving Facility Commitment at such time, or (ii) less than such amount but equal to a minimum of £5 million, or an integral multiple of £1 million;

 

(e)                           the Utilisation Date for a Revolving Facility Advance is on a date not earlier than the Utilisation Date for the A Facility Advance and the B Facility Advances;

 

(f)                             in the case of a Utilisation by way of Documentary Credit, the proposed Sterling Amount (or its equivalent) of such Documentary Credit is equal to or more than £1 million or such lesser amount as the relevant L/C Bank may agree (acting reasonably);

 

(g)                          in the case of a Utilisation by way of a Revolving Facility Advance, immediately after the making of such Advance there will be no more than 25 Revolving Facility Advances then outstanding;

 

(h)                          in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit ends on or before the Final Maturity Date in respect of the Revolving Facility and immediately after the making of such Utilisation there will be no more than 25 Documentary Credits then outstanding;

 

(i)                              in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Advance is a period of 1, 2, 3 or 6 months or such other period of up to 12 months as all the Lenders having a Revolving Facility Commitment may agree prior to submission of the relevant Utilisation Request, and ends on or before the Final Maturity Date in respect of the Revolving Facility;

 

(j)                              in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 15 (Market Disruption and Alternative Interest Rates);

 

(k)                           in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the relevant L/C Bank shall have approved the terms of such Documentary Credit (acting reasonably); and

 

(l)                              in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:

 

(i)                              in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), the Facility Agent shall not have received instructions from a Revolving Facility

 

71



 

Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of the Acceleration Date having occurred; or

 

(ii)                           in the case of any Utilisation other than that referred to in sub-paragraph (i) above, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation.

 

4.2                                     Lenders’ Participations

 

Each Lender will participate through its Facility Office in each Advance made pursuant to Clause 4.1 (Conditions to Utilisation) in its respective Proportion.

 

5.                                           DOCUMENTARY CREDITS

 

5.1                                     Issue of Documentary Credits

 

(a)                           Each L/C Bank shall issue Documentary Credits pursuant to Clause 4.1 (Conditions to Utilisation) by:

 

(i)                              completing the issue date and the proposed Expiry Date of any Documentary Credit to be issued by it; and

 

(ii)                           executing and delivering such Documentary Credit to the relevant Beneficiary on the relevant Utilisation Date.

 

(b)                          Each Lender having a Revolving Facility Commitment (an “L/C Lender”) will participate by way of indemnity in each Documentary Credit in an amount equal to its L/C Proportion.

 

(c)                           The Facility Agent shall notify each L/C Lender and the relevant L/C Bank of the details of any requested Documentary Credit (including the Sterling Amount of it, and, if such Documentary Credit is not to be denominated in Sterling, the relevant currency in which it will be denominated and the amount of it) and its participation in that Documentary Credit.

 

5.2                                     Renewal of Documentary Credits

 

(a)                           Each Borrower may request that a Documentary Credit issued on its behalf be renewed by delivering to the Facility Agent and the relevant L/C Bank a Renewal Request which complies with Clause 4.1 (Conditions to Utilisation).

 

(b)                          The terms of each renewed Documentary Credit shall be the same as those of the relevant Documentary Credit immediately prior to its renewal, except that (as stated in the Renewal Request therefor):

 

(i)                              its amount may be less than the amount of such Documentary Credit immediately prior to its renewal; and

 

(ii)                           its Term shall start on the date which was the Expiry Date of that Documentary Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

72



 

(c)                           If the conditions set out in this Clause 5.2 have been met, the relevant L/C Bank shall amend and re-issue the relevant Documentary Credit pursuant to a Renewal Request.

 

5.3                                     Reduction of a Documentary Credit

 

(a)                           If, on the proposed Utilisation Date of a Documentary Credit, any of the Lenders under the Revolving Facility is a Non-Acceptable L/C Lender and:

 

(i)                              that Lender has failed to provide cash collateral to the relevant L/C Bank in accordance with Clause 5.8 (Cash Collateral by Non-Acceptable L/C Lender); and

 

(ii)                           either:

 

(A)                     the relevant L/C Bank has not required the Borrower which requested the Documentary Credit to provide cash cover pursuant to Clause 5.9 (Cash Cover by Borrower); or

 

(B)                       the Borrower which requested the Documentary Credit has failed to provide cash cover to the relevant L/C Bank in accordance with Clause 5.9 (Cash Cover by Borrower),

 

the relevant L/C Bank may reduce the amount of that Documentary Credit by an amount equal to the amount of the participation of that Non-Acceptable L/C Lender in respect of that Documentary Credit and that Non-Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the relevant L/C Bank) in respect of that Documentary Credit for the purposes of the Relevant Finance Documents.

 

(b)                          The Borrower shall notify the Facility Agent (with a copy to the relevant L/C Bank) of each reduction made pursuant to this Clause 5.3.

 

(c)                           This Clause 5.3 shall not affect the participation of each other Lender in that Documentary Credit.

 

5.4                                     Revaluation of Documentary Credits

 

(a)                           If any Documentary Credit is denominated in a currency other than Sterling, the Facility Agent shall at six monthly intervals after the date of the Documentary Credit recalculate the Sterling Amount of that Documentary Credit by notionally converting into Sterling, the outstanding amount of that Documentary Credit on the basis of the Facility Agent’s Spot Rate of Exchange on the date of calculation.

 

(b)                          The relevant Borrower shall, if requested by the Facility Agent within 2 days of any calculation under paragraph (a) above, ensure that within 3 Business Days sufficient Revolving Facility Outstandings are repaid (subject to Break Costs, if applicable, but otherwise without penalty or premium which might otherwise be payable), to prevent the Sterling Amount of the Revolving Facility Outstandings exceeding the aggregate amount of all of the Revolving Facility Commitments adjusted to reflect any cancellations or reductions, following any adjustment under paragraph (a) above.

 

5.5                                    Immediately Payable

 

(a)                           If a Documentary Credit or any amount outstanding under a Documentary Credit becomes immediately payable under this Agreement, the Borrower that requested (or

 

73



 

on behalf of which the Company requested) the issue of that Documentary Credit shall repay or prepay that Documentary Credit or that amount within 3 Business Days of demand.

 

(b)                          Each L/C Bank shall promptly notify the Facility Agent of any demand received by it under and in accordance with any Documentary Credit (including details of the Documentary Credit under which such demand has been received and the amount demanded).  The Facility Agent shall promptly notify the Company, the Borrower for whose account the Documentary Credit was issued and each of the Lenders under the Revolving Facility.

 

5.6                                     Claims Under a Documentary Credit

 

(a)                           Each Borrower irrevocably and unconditionally authorises each L/C Bank to pay any claim made or purported to be made under a Documentary Credit requested by it (or by the Company on its behalf) and which appears on its face to be in order (a “claim”).

 

(b)                          Each Borrower shall within 3 Business Days of demand pay to the Facility Agent for the account of the relevant L/C Bank an amount equal to the amount of any claim under that Documentary Credit.

 

(c)                           On receipt of any demand or notification under Clause 5.5 (Immediately Payable), the relevant Borrower shall (unless the Company notifies the Facility Agent otherwise) be deemed to have delivered to the Facility Agent a duly completed Utilisation Request requesting a Revolving Facility Advance:

 

(i)                              in an amount and currency equal to the amount and currency of the relevant claim (if applicable, net of any available cash cover);

 

(ii)                           for an Interest Period of three months or such other period of up to six months as notified by the relevant Borrower to the relevant L/C Bank prior to the Utilisation Date applicable to such currency; and

 

(iii)                        with a Utilisation Date on the date receipt of the relevant demand or notification.

 

The proceeds of any such Revolving Facility Advance shall be used to pay the relevant claim.

 

(d)                          Each Borrower acknowledges that each L/C Bank:

 

(i)                              is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

 

(ii)                           deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

(e)                           The obligations of each Borrower under this Clause 5.6 will not be affected by:

 

(i)                              the sufficiency, accuracy or genuineness of any claim or any other document; or

 

74



 

(ii)                           any incapacity of, or limitation on the powers of, any person signing a claim or other document.

 

(f)                             Without prejudice to any other matter contained in this Clause 5.6, the relevant L/C Bank shall notify the relevant Borrowers as soon as reasonably practicable after receiving a claim.

 

5.7                                     Documentary Credit Indemnities

 

(a)                           A Borrower shall within 3 Business Days of demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful misconduct or wilful breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit requested by such Borrower.

 

(b)                          Each L/C Lender shall (according to its L/C Proportion) promptly on demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful misconduct or wilful breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit (except to the extent that such L/C Bank has been reimbursed by an Obligor pursuant to a Relevant Finance Document).

 

(c)                           If any L/C Lender is not permitted (by its constitutional documents or any applicable Law) to comply with paragraph (b) above, then that L/C Lender will not be obliged to comply with paragraph (b) above and shall instead be deemed to have taken, on the date the relevant Documentary Credit is issued (or if later, on the date that L/C Lender’s participation in the Documentary Credit is transferred or assigned to that L/C Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Documentary Credit in an amount equal to its L/C Proportion of that Documentary Credit.  On receipt of demand from the Facility Agent, that L/C Lender shall pay to the Facility Agent (for the account of the relevant L/C Bank) an amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.

 

(d)                          The Borrower which requested the Documentary Credit shall within 3 Business Days of demand reimburse any L/C Lender for any payment it makes to an L/C Bank under this Clause 5.7 in respect of that Documentary Credit unless such Lender or an Obligor has already reimbursed such L/C Bank in respect of that payment.

 

(e)                           The obligations of each L/C Lender and Borrower under this Clause 5.7 are continuing obligations and will extend to the ultimate balance of sums payable by that L/C Lender in respect of any Documentary Credit, regardless of any intermediate payment or discharge in whole or in part.

 

(f)                             The obligations of any L/C Lender or Borrower under this Clause 5.7 will not be affected by any act, omission, matter or thing which, but for this Clause 5.7 would reduce, release or prejudice any of its obligations under this Clause 5.7 (without limitation and whether or not known to it or any other person) including:

 

(i)                              any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Documentary Credit or any other person;

 

(ii)                           the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

75



 

(iii)                        the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Documentary Credit or any other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

(iv)                       any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Documentary Credit or any other person;

 

(v)                          any amendment or restatement (however fundamental) or replacement of a Relevant Finance Document, any Documentary Credit or any other document or security;

 

(vi)                       any unenforceability, illegality or invalidity of any obligation of any person under any Relevant Finance Document, any Documentary Credit or any other document or security; or

 

(vii)                    any insolvency or similar proceedings.

 

5.8                                     Cash Collateral by Non-Acceptable L/C Lender

 

(a)                           If, at any time, a Lender under the Revolving Facility is a Non-Acceptable L/C Lender, the relevant L/C Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling 3 Business Days after the request by such L/C Bank, an amount equal to that Lender’s L/C Proportion of the outstanding amount of a Documentary Credit issued by such L/C Bank and in the currency of that Documentary Credit to an interest-bearing account held in the name of that Lender with such L/C Bank.

 

(b)                          The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the relevant L/C Bank, as collateral for any amounts due and payable under the Relevant Finance Documents by that Lender to the L/C Bank in respect of that Documentary Credit.

 

(c)                           Until no amount is or may be outstanding under that Documentary Credit, withdrawals from the account may only be made to pay to the relevant L/C Bank amounts due and payable to the relevant L/C Bank by the Non-Acceptable L/C Lender under the Relevant Finance Documents in respect of that Documentary Credit.

 

(d)                          Each Lender under the Revolving Facility shall notify the Facility Agent and the Company:

 

(i)                              on the Original Execution Date or on any later date on which it becomes such a Lender in accordance with Clause 2.2 (Increase) or Clause 37 (Assignments and Transfers) whether it is a Non-Acceptable L/C Lender; and

 

(ii)                           as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,

 

and an indication in a Transfer Deed or in an Increase Confirmation to that effect will constitute a notice under paragraph (d)(i) to the Facility Agent and, upon delivery in

 

76



 

accordance with Clause 37.12 (Copy of Transfer Deed or Increase Confirmation to Company), to the Company.

 

(e)                           Any notice received by the Facility Agent pursuant to paragraph (d) above shall constitute notice to each L/C Bank of that Lender’s status and the Facility Agent shall, upon receiving each such notice, promptly notify each L/C Bank of that Lender’s status as specified in that notice.

 

(f)                             If a Lender who has provided cash collateral in accordance with this Clause 5.8:

 

(i)                              ceases to be a Non-Acceptable L/C Lender; and

 

(ii)                           no amount is due and payable by that Lender in respect of a Documentary Credit,

 

that Lender may, at any time it is not a Non-Acceptable L/C Lender, by notice to the relevant L/C Bank request that an amount equal to the amount of the cash provided by it as collateral in respect of that Documentary Credit (together with any accrued interest) standing to the credit of the relevant account held with that L/C Bank be returned to it and that L/C Bank shall pay that amount to the Lender within 3 Business Days after the request from the Lender (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).

 

5.9                                     Cash Cover by Borrower

 

(a)                           If a Lender which is a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the relevant L/C Bank that it will not provide cash collateral) in accordance with Clause 5.8 (Cash Collateral by Non-Acceptable L/C Lender) and that L/C Bank notifies the Obligors’ Agent (with a copy to the Facility Agent) that it requires the Borrower of the relevant Documentary Credit or proposed Documentary Credit to provide cash cover to an account with that L/C Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Documentary Credit and in the currency of that Documentary Credit then that Borrower shall do so within 5 Business Days after the notice is given.

 

(b)                          Notwithstanding paragraph 1.3(r) of Clause 1.3 (Construction), the Borrower shall be entitled to withdraw amounts up to the level of that cash cover from the account if:

 

(i)                              the relevant L/C Bank is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender; or

 

(ii)                           the relevant Lender’s obligations in respect of the relevant Documentary Credit are transferred to a New Lender in accordance with the terms of this Agreement; or

 

(iii)                        an Increase Lender has agreed to undertake the obligations in respect of the relevant Lender’s L/C Proportion of the Documentary Credit.

 

(c)                           To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 5.9, the relevant Lender’s L/C Proportion in respect of that Documentary Credit will remain (but that Lender’s obligations in relation to that Documentary Credit may be satisfied in accordance with paragraph (r)(ii) of Clause 1.3 (Construction)).  However, the relevant Borrower’s obligation to pay any Documentary Credit fee in relation to the relevant Documentary Credit to the Facility

 

77



 

Agent (for the account of that Lender) in accordance with Clause 16 (Commissions and Fees) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).

 

(d)                          The relevant L/C Bank shall promptly notify the Facility Agent of the extent to which a Borrower provides cash cover pursuant to this Clause 5.9 and of any change in the amount of cash cover so provided.

 

5.10                               Rights of Contribution

 

No Obligor will be entitled to any right of contribution or indemnity from any Relevant Finance Party in respect of any payment it may make under this Clause 5.

 

5.11                               Appointment and Change of L/C Bank

 

(a)                           The Company, with the prior written consent of the relevant Lender, may designate any Lender with a Revolving Facility Commitment as an L/C Bank or as a replacement therefor, but not with respect to Documentary Credits already issued by any other L/C Bank.

 

(b)                          Any Lender so designated shall become an L/C Bank under this Agreement by delivering to the Facility Agent an executed L/C Bank Accession Certificate.

 

(c)                           An L/C Bank may resign as issuer of further Documentary Credits at any time if (i) the Company and an Instructing Group consent to such resignation or so require; (ii) there is, in the reasonable opinion of each L/C Bank, an actual or potential conflict of interest in it continuing to act as L/C Bank; or (iii) its Revolving Facility Commitment is reduced to zero, provided that an L/C Bank shall not resign until a replacement L/C Bank is appointed.

 

6.                                           ANCILLARY FACILITIES

 

6.1                                     Utilisation of Ancillary Facilities

 

(a)                           Each Borrower may, subject to paragraph (b) below, at any time at least 35 days prior to the Termination Date in respect of the Revolving Facility by delivery of a notice (a “Conversion Notice”) to the Facility Agent, request an Ancillary Facility to be established by the conversion of any Lender’s Available Revolving Facility Commitment (or any part of it) into an Ancillary Facility Commitment with effect from the date (in this Clause 6, the “Effective Date”) specified in the Conversion Notice (being a date not less than 5 Business Days after the date such Conversion Notice is received by the Facility Agent).

 

(b)                          Each Conversion Notice shall specify:

 

(i)                              the proposed Borrower(s) (or any Affiliate of a Borrower that is a member of the Bank Group) which may use the Ancillary Facility;

 

(ii)                           the nominated Ancillary Facility Lender;

 

(iii)                        the type of Ancillary Facility and the currency or currencies in which the relevant Borrower wishes such Ancillary Facility to be available;

 

78



 

(iv)                       the proposed Sterling Amount of the original Ancillary Facility Commitment, being an amount (i) equal to the Available Revolving Facility Commitment of the nominated Ancillary Facility Lender or, if less, (ii) equal to or more than £1 million;

 

(v)                          the Effective Date and expiry date for the Ancillary Facility (such expiry date not to extend beyond the Final Maturity Date in respect of the Revolving Facility);

 

(vi)                       if the Ancillary Facility is an overdraft facility comprising more than one account, its maximum gross amount (that amount being the “Designated Gross Amount” and its maximum net amount (that amount being the “Designated Net Amount”); and

 

(vii)                    such other details as to the nature, amount, fees for and operation of the proposed Ancillary Facility as the Facility Agent and the nominated Ancillary Facility Lender may reasonably require.

 

(c)                           The Facility Agent shall promptly notify the Company, the nominated Ancillary Facility Lender and the Lenders of each Conversion Notice received pursuant to paragraph (a) above.

 

(d)                          Any Lender nominated as an Ancillary Facility Lender which has notified the Facility Agent of its consent to such nomination shall be authorised to make the proposed Ancillary Facility available in accordance with the Conversion Notice (as approved by the Facility Agent) with effect on and from the Effective Date.  No other Lender shall be obliged to consent to the nomination of the Ancillary Facility Lender.

 

(e)                           Any material variation from the terms of the Ancillary Facility or any proposed increase or reduction or extension of the Ancillary Facility Commitment shall be effected on and subject to the provisions of this Clause 6 mutatis mutandis as if such Ancillary Facility were newly requested (including, for the avoidance of doubt, that such newly requested Ancillary Facility shall only take effect from a date not less than 5 Business Days after the date the Facility Agent has received notice of the modification or variation or extension), provided that the Sterling Amount of the Ancillary Facility Outstandings under each Ancillary Facility provided by an Ancillary Facility Lender shall at no time exceed the Available Revolving Facility Commitment of that Ancillary Facility Lender.

 

(f)                             Each relevant Borrower may (subject to compliance with the applicable terms of the relevant Ancillary Facility) at any time by giving written notice to the Facility Agent and the relevant Ancillary Facility Lender cancel any Ancillary Facility Commitment pursuant to and in accordance with Clause 10.1 (Voluntary Cancellation), provided that on the date of such cancellation, that part of such Ancillary Facility Commitment as shall have been so cancelled shall be converted back into the Revolving Facility Commitment of the relevant Lender unless the Revolving Facility Commitments are also cancelled on such date.

 

(g)                          The Ancillary Facility Commitment of any Ancillary Facility Lender shall terminate and be cancelled on the date agreed therefor between the relevant Ancillary Facility Lender and the relevant Borrower, provided such date shall be no later than the Termination Date in respect of the Revolving Facility (the “Ancillary Facility Termination Date”).  Any Ancillary Facility Outstandings on the applicable Ancillary Facility Termination Date shall be repaid in full by the relevant Borrower on such date.

 

79



 

(h)                          The Revolving Facility Commitment of each Lender at any time shall be reduced by the amount of any Ancillary Facility Commitment of such Lender at such time but such reduced Commitment shall, subject to any other provisions of this Agreement, automatically be increased by the amount of any portion of its Ancillary Facility Commitment which ceases to be made available to the relevant Borrowers for any reason (other than as a result of Utilisation of it) in accordance with the terms of such Ancillary Facility or is cancelled pursuant to paragraphs (f) or (g) above.

 

6.2                                     Operation of Ancillary Facilities

 

(a)                           Subject to paragraph (b) below, the terms governing the operation of any Ancillary Facility (including the rate of interest (including default interest), fees, commission and other remuneration in respect of such Ancillary Facility) shall be those determined by agreement between the Ancillary Facility Lender and the relevant Borrower, provided that such terms shall be based upon the normal commercial terms and market rates of the relevant Ancillary Facility Lender.

 

(b)                          In the case of any inconsistency or conflict between the terms of any Ancillary Facility, the applicable Ancillary Facility Documents and this Agreement, the terms and provisions of the applicable Ancillary Facility Document shall prevail unless the contrary intention is expressly provided for in this Agreement.

 

(c)                           Each relevant Borrower and Ancillary Facility Lender will promptly upon request by the Facility Agent, supply the Facility Agent with such information relating to the operation of each Ancillary Facility (including without limitation details of the Ancillary Facility Outstandings and the Sterling Amount thereof) as the Facility Agent may from time to time reasonably request (and each relevant Borrower consents to such documents and information being provided to the Facility Agent and the other Lenders).

 

6.3                                     Ancillary Facility Default

 

(a)                           If a default occurs under any Ancillary Facility, no Ancillary Facility Lender may demand repayment of any monies or demand cash cover for any Ancillary Facility Outstandings, or take any analogous action in respect of any Ancillary Facility, until the Acceleration Date.

 

(b)                          If an Acceleration Date occurs, the claims of each Lender with a Revolving Facility Commitment and each Ancillary Facility Lender in respect of amounts outstanding to them under the Revolving Facility and Ancillary Facilities respectively shall be adjusted in accordance with this Clause 6.3 by making all necessary transfers of such portions of such claims such that following such transfers the Revolving Facility Outstandings and Ancillary Facility Outstandings (together with the rights to receive interest, fees and charges in relation thereto) of (i) each Lender with a Revolving Facility Commitment and (ii) each Ancillary Facility Lender, in each case as at the Acceleration Date shall be an amount corresponding pro rata to the proportion that the sum of such Lender’s Revolving Facility Commitment and/or (as the case may be) Ancillary Facility Commitment bears to the sum of all of the Revolving Facility Commitments and the Ancillary Commitments, each as at the Acceleration Date.

 

(c)                           No later than the third Business Day following the Acceleration Date each of the Ancillary Facility Lenders shall notify the Facility Agent in writing of the Sterling Amount of its Ancillary Facility Outstandings as at the close of business on the Acceleration Date, such amount to take account of any clearing of debits which were entered into the clearing system of such Ancillary Facility Lenders prior to the

 

80



 

Acceleration Date and any amounts credited to the relevant accounts prior to close of business on the Acceleration Date.

 

(d)                          On receipt of the information referred to in paragraph (c) above, the Facility Agent will promptly determine what adjustment payments (if any) are necessary as between the Lenders participating in the Revolving Facility and each Ancillary Facility Lender in order to ensure that, following such adjustment payments, the requirements of paragraph (b) above are complied with.

 

(e)                           The Facility Agent will notify all the Lenders as soon as practicable of its determinations pursuant to paragraph (d) above, giving details of the adjustment payments required to be made.  Such adjustment payments shall be payable by the relevant Lenders and shall be made to the Facility Agent within 5 Business Days following receipt of such notification from the Facility Agent.  The Facility Agent shall distribute the adjustment payments received, among the Ancillary Facility Lenders and the Lenders participating in the Revolving Facility in order to satisfy the requirements of paragraph (b) above.

 

(f)                             If at any time following the Acceleration Date, the amount of Revolving Facility Outstandings of any Lender or Ancillary Facility Outstandings of any Ancillary Facility Lender used in the Facility Agent’s calculation of the adjustments required under paragraph (d) above should vary for any reason (other than as a result of currency exchange fluctuation or other reason which affects all relevant Lenders equally), further adjustment payments shall be made on the same basis (mutatis mutandis) provided for in this Clause 6.3.

 

(g)                          In respect of any amount paid by any Lender (a “Paying Lender”) pursuant to either of paragraphs (e) or (f) above, as between a relevant Borrower and the Paying Lender, the amount so paid shall be immediately due and payable by such relevant Borrower to the Paying Lender and the payment obligations of such relevant Borrower to the Lender(s) which received such payment shall be treated as correspondingly reduced by the amount of such payment.

 

(h)                          Each Lender shall promptly supply to the Facility Agent such information as the Facility Agent may from time to time request for the purpose of giving effect to this Clause 6.3.

 

(i)                              If an Ancillary Facility Lender has the benefit of any Encumbrance securing any of its Ancillary Facilities, the realisations from such security when enforced will be treated as an amount recovered by such Ancillary Facility Lender in its capacity as a Lender which is subject to the sharing arrangements in Clause 35 (Sharing Among the Relevant Finance Parties) to the intent that such realisation should benefit all Lenders pro rata.

 

6.4                                     Repayment of Ancillary Facilities

 

(a)                           No Ancillary Facility Lender may demand repayment or prepayment of any amounts under its Ancillary Facility unless:

 

(i)                              the Revolving Facility Commitments have been cancelled in full, or the Facility Agent has declared all Outstandings under the Revolving Facility immediately due and payable; or

 

81



 

(ii)                           the Ancillary Facility Outstandings under that Ancillary Facility can be repaid by a Revolving Facility Advance (and not less than 7 Business Days notice is given to the relevant Borrower before payment becomes due).

 

(b)                          For the purposes of repaying Ancillary Facility Outstandings (so long as paragraph (a)(i) above does not apply) a Revolving Facility Advance may be borrowed irrespective of whether a Default is outstanding or any other applicable condition precedent not satisfied.

 

(c)                           The share of the Ancillary Facility Lender in a Revolving Facility Advance being used to refinance that Ancillary Facility Lender’s Ancillary Facility will be that amount which will result (so far as possible) in:

 

(i)                              the proportion which its share of all Outstandings under the Revolving Facility bears to the aggregate amount of the Outstandings under the Revolving Facility,

 

being equal to:

 

(ii)                           the proportion which its Available Commitment with respect to the Revolving Facility bears to the aggregate of the Available Commitments with respect to the Revolving Facility,

 

in each case, assuming the repayment of the relevant Ancillary Facility has taken place.  The share of the other Lenders in any such Revolving Facility Advance will be adjusted accordingly.

 

6.5                                     Continuation of Ancillary Facilities

 

(a)                           A Borrower and an Ancillary Facility Lender may, as between themselves only, agree to continue to provide the same banking facilities following the Termination Date applicable to the Revolving Facility or, as the case may be, the Revolving Commitments are cancelled under this Agreement.

 

(b)                          If any arrangement contemplated in paragraph (a) above is to occur, the relevant Borrower and the Ancillary Facility Lender shall each confirm that to be the case in writing to the Facility Agent. Upon such Termination Date or, as the case may be, date of cancellation, any such facility shall continue as between the said entities on a bilateral basis and not as part of, or under, the Relevant Finance Documents. Save for any rights and obligations against any Relevant Finance Party under the Relevant Finance Documents prior to such Termination Date or, as the case may be, date of cancellation, no such rights or obligations in respect of such Ancillary Facility shall, as between the Relevant Finance Parties, continue and the Security shall not support any such facility in respect of any matters that arise after such Termination Date or, as the case may be, date of cancellation.

 

6.6                                     Affiliates of Lenders as Ancillary Facility Lenders

 

(a)                           Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Facility Lender.  In such case, the Lender and its Affiliate shall be treated as a single Lender whose Revolving Facility Commitment is the amount set out opposite the relevant Lender’s name in Part 1 of Schedule 1 (Lenders and Commitments) and/or the amount of any Revolving Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled,

 

82



 

reduced or transferred by it under this Agreement.  For the purposes of calculating the Lender’s Available Commitment with respect to the Revolving Facility, the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates.

 

(b)                          The Company shall specify any relevant Affiliate of a Lender in any Conversion Notice delivered by the Company to the Facility Agent pursuant to Clause 6.1 (Utilisation of Ancillary Facilities).

 

(c)                           An Affiliate of a Lender which becomes an Ancillary Facility Lender shall accede to this Agreement as an Ancillary Facility Lender, and the Group Intercreditor Agreement and the HYD Intercreditor Agreement as a Senior Lender.

 

(d)                          If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (in accordance with Clause 37 (Assignments and Transfers), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Facility Document.

 

(e)                           Where this Agreement or any other Relevant Finance Document imposes an obligation on an Ancillary Facility Lender and the relevant Ancillary Facility Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.

 

6.7                                     Affiliates of Borrowers

 

(a)                           Subject to the terms of this Agreement, an Affiliate of a Borrower that is a member of the Bank Group may with the approval of the relevant Ancillary Facility Lender become a borrower with respect to an Ancillary Facility.

 

(b)                          The Company shall specify any relevant Affiliate of a Borrower in any Conversion Notice delivered by the Company to the Facility Agent pursuant to Clause 6.1 (Utilisation of Ancillary Facilities).

 

(c)                           If a Borrower ceases to be a Borrower under this Agreement in accordance with Clause 37.3 (Resignation of a Borrower), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Facility Document.

 

(d)                          Where this Agreement or any other Relevant Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.

 

(e)                           Any reference in this Agreement or any other Relevant Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Relevant Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Relevant Finance Document or Ancillary Facility Document.

 

7.                                           OPTIONAL CURRENCIES

 

7.1                                     Selection of Currency

 

Each Borrower under the Revolving Facility shall select the currency of a Revolving Facility Advance made to it (which shall be Sterling, Dollars, euro or an Optional Currency) in the Utilisation Request relating to the relevant Revolving Facility Advance.

 

83



 

7.2                                     Unavailability of Optional Currency

 

(a)                           If before 10.00 a.m. on the Quotation Date for the relevant Revolving Facility Advance:

 

(i)                              a Lender notifies the Facility Agent that the relevant Optional Currency is not readily available to it in the amount required; or

 

(ii)                           a Lender notifies the Facility Agent that compliance with its obligation to participate in the Revolving Facility Advance in the proposed Optional Currency would contravene a Law or regulation applicable to it,

 

the Facility Agent will promptly give notice to the relevant Borrower to that effect.  In this event, any Lender that gives notice pursuant to this Clause 7.2 will be required to participate in the relevant Revolving Facility Advance in Sterling (in an amount equal to that Lender’s Proportion of the Sterling Amount of the relevant Revolving Facility Advance or, in respect of a Rollover Advance, an amount equal to that Lender’s Proportion of the Sterling Amount of any amount that the Lenders are actually required to advance in accordance with Clause 8.2 (Rollover Advances)), and its participation will be treated as a separate Advance denominated in Sterling during that Term.

 

(b)                          Any part of a Revolving Facility Advance treated as a separate Advance under this Clause 7 will not be taken into account for the purposes of any limit on the number of Advances or currencies outstanding at any one time.

 

8.                                           REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS

 

8.1                                     Repayment of Revolving Facility Advances

 

Each Borrower shall (subject to Clause 8.2 (Rollover Advances)) repay the full amount of each Revolving Facility Advance drawn by it on its Repayment Date.

 

8.2                                     Rollover Advances

 

Without prejudice to each Borrower’s obligation to repay the full amount of each Revolving Facility Advance made to it on the applicable Repayment Date, where, on the same day on which such Borrower is due to repay a Revolving Facility Advance (a “Maturing Advance”) such Borrower has also requested that one or more Revolving Facility Advances in the same currency as and in an amount which is equal to or less than the Maturing Advance be made to it (a “Rollover Advance”), subject to the Lenders being obliged to make such Rollover Advance under Clause 4.1 (Conditions to Utilisation), the aggregate amount of the Rollover Advance shall be treated as if applied in or towards repayment of the Maturing Advance so that:

 

(a)                           if the amount of the Maturing Advance exceeds the aggregate amount of the Rollover Advance:

 

(i)                              the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

(ii)                           each Lender’s participation (if any) in the Rollover Advance shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the Maturing Advance and

 

84



 

that Lender will not be required to make its participation in the Rollover Advance available in cash; and

 

(b)                          if the amount of the Maturing Advance is equal to or less than the aggregate amount of the Rollover Advance:

 

(i)                              the relevant Borrower will not be required to make any payment in cash; and

 

(ii)                           each Lender will be required to make its participation in the Rollover Advance available in cash only to the extent that its participation (if any) in the Rollover Advance exceeds that Lender’s participation (if any) in the Maturing Advance and the remainder of that Lender’s participation in the Rollover Advance shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the Maturing Advance.

 

8.3                                     Cash Collateralisation of Documentary Credits

 

(a)                           If not previously repaid in accordance with paragraph (b) below, each Borrower must repay each Documentary Credit issued on its behalf in full on the date stated in that Documentary Credit to be its Expiry Date.

 

(b)                          A Borrower may give the Facility Agent not less than 5 Business Days prior written notice of its intention to repay all or any portion of a Documentary Credit requested by it prior to its stated Expiry Date and, having given such notice, shall procure that the relevant Outstanding L/C Amount in respect of such Documentary Credit is reduced in accordance with such notice by providing cash cover therefor in accordance with Clause 1.3(r) (Construction) (in each case) or by reducing the Outstanding L/C Amount of such Documentary Credit or by cancelling such Documentary Credit and returning the original to the relevant L/C Bank or the Facility Agent on behalf of the Lenders.

 

8.4                                     Final Repayment

 

The Company shall procure that all amounts outstanding under the Revolving Facility shall be repaid in full on its Final Maturity Date.

 

9.                                           REPAYMENT OF TERM FACILITY OUTSTANDINGS

 

9.1                                     Repayment of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings

 

Subject to any prepayments of A Facility Repayment Instalments, A1 Facility Repayment Instalments and A2 Facility Repayment Instalments made in accordance with Clause 11.2 (Application of Repayments), the Borrowers under the A Facility, the A1 Facility and the A2 Facility shall make (or procure) such repayments as may be necessary to ensure that on each of the dates set out in the table below (each, an “Amortisation Repayment Date”) the aggregate Sterling Amount of the A Facility Outstandings, the A1 Facility Outstandings and the A2 Facility Outstandings are reduced (on a pro rata basis) by an aggregate amount equal to the amount set out in the table below (each such amount to be applied in repayment under this Clause 9.1 (Repayment of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings), an “A Facility Repayment Instalment”, an “A1 Facility Repayment Instalment” or an “A2 Facility Repayment Instalment”, respectively):

 

85



 

Amortisation Repayment Date

 

Amount Repayable

30 June 2011

 

£150 million

30 June 2012

 

£175 million

30 June 2013

 

£200 million

 

and provided that:

 

(a)                           on 30 June 2014, the Borrowers under the A Facility and the A2 Facility shall make (or procure) such repayments as may be necessary to ensure that the aggregate Sterling Amount of the A Facility Outstandings and the A2 Facility Outstandings are reduced (on a pro rata basis) by an aggregate amount equal to £200 million multiplied by the proportion (expressed as a percentage) which (i) the aggregate of A Facility Outstandings and the A2 Facility Outstandings bears to (ii) the aggregate of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings; and

 

(b)                          on 30 June 2015, the Borrowers under the A Facility, the A1 Facility and the A2 Facility shall make (or procure) such repayments as may be necessary to ensure that the aggregate Sterling Amount of all of the A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings are reduced to zero.

 

9.2                                     No Reborrowing of A Facility Advances, A1 Facility Advances or A2 Facility Advances

 

No Borrower may reborrow any part of any A Facility Advance, any A1 Facility Advance or any A2 Facility Advance which is repaid.

 

9.3                                     Repayment of B Facility Outstandings and B1 Facility Outstandings

 

The Borrowers under the B Facility and the B1 Facility shall repay (or procure the repayment of) the aggregate outstanding principal amount of the B Facility Advance and the B1 Facility Advance, respectively, in full in one instalment on the applicable Final Maturity Date.

 

9.4                                     Repayment of Additional Facility Outstandings

 

The Borrowers under each Additional Facility shall repay (or procure the repayment of) the aggregate outstanding principal amount of the Additional Facility Advances under that Additional Facility on the Final Maturity Date applicable to such Additional Facility.

 

10.                                     CANCELLATION

 

10.1                              Voluntary Cancellation

 

The Company may, by giving to the Facility Agent not less than 3 Business Days prior written notice to that effect (unless an Instructing Group has given its prior consent to a shorter period) cancel any Available Facility in whole or any part (but if in part, in an amount that reduces the Sterling Amount of such Facility by a minimum amount of £5,000,000 and an integral multiple of £1,000,000) and any such cancellation shall (subject to the provisions of Clause 6.1(g) (Utilisation of Ancillary Facilities)), reduce the relevant Available Commitments of the Lenders rateably.

 

10.2                               Notice of Cancellation

 

Any notice of cancellation given by the Company pursuant to Clause 10.1 (Voluntary Cancellation) shall be irrevocable and shall specify the date upon which such cancellation is to be made and the amount of such cancellation.

 

86



 

10.3                               Cancellation of Available Commitments

 

(a)                           On each Termination Date any Available Commitments in respect of the Facility to which such Termination Date relates shall automatically be cancelled and the Commitment of each Lender in relation to such Facility shall automatically be reduced to zero.

 

(b)                          No Available Commitments which have been cancelled hereunder may thereafter be reinstated.

 

10.4                               Right of Repayment and Cancellation in Relation to a Single Lender

 

(a)                           If:

 

(i)                              any sum payable to any Lender, Ancillary Facility Lender or L/C Bank by an Obligor is required to be increased under Clause 17.1 (Tax Gross-up);

 

(ii)                           any Lender, Ancillary Facility Lender or L/C Bank claims indemnification from the Company under Clause 17.3 (Tax Indemnity) or Clause 18 (Increased Costs); or

 

(iii)                        any Lender, Ancillary Facility Lender or L/C Bank invokes Clause 15.2 (Market Disruption),

 

then, subject to paragraph (c) below:

 

(A)                     if the circumstance relates to a Lender, the Company may:

 

(1)                               arrange for the transfer or assignment in accordance with this Agreement of the whole (but at par only) of that Lender’s Commitment and participation in the Utilisations to a new or existing Lender willing to accept that transfer or assignment; or

 

(2)                               give the Facility Agent notice of cancellation of that Lender’s Commitment and the Company’s intention to procure the repayment of that Lender’s participation in the Utilisation, whereupon the Commitment of that Lender shall immediately be reduced to zero;

 

(B)                       if the circumstance relates to an Ancillary Facility Lender, the Company may give the Facility Agent notice of cancellation of that Ancillary Facility Lender’s Ancillary Commitment and the Company’s intention to procure the repayment of the utilisations of any Ancillary Facility granted by that Ancillary Facility Lender, whereupon the Ancillary Commitment of that Ancillary Facility Lender shall immediately be reduced to zero; and

 

(C)                       if the circumstance relates to an L/C Bank, the Company may give the Facility Agent notice of repayment of any outstanding Documentary Credit issued by such L/C Bank and cancellation of the appointment of such L/C Bank as an L/C Bank under this Agreement in relation to any Documentary Credit to be issued in the future or the provision of full cash cover in respect of such L/C Bank’s maximum contingent liability under each outstanding Documentary Credit.

 

87



 

(b)                          On the last day of each Interest Period which ends after the Company has given notice under paragraph (a)(A)(2), (a)(B) or (a)(C) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation or utilisation of an Ancillary Facility is outstanding shall repay that Lender’s participation in that Utilisation or the utilisation of the Ancillary Facility granted by that Ancillary Facility Lender (together with all interest and other amounts accrued under the Relevant Finance Documents) or, as the case may be, provide full cash cover in respect of any Documentary Credit issued by that L/C Bank or any contingent liability under an Ancillary Facility.

 

(c)                           The Company may only exercise its rights under paragraph (b) above if:

 

(i)                              in the case of paragraphs (a)(i) and (a)(ii) above, the circumstance giving rise to the requirement or indemnification continues or, in the case of (a)(iii) no more than 90 days have elapsed since the relevant invoking of Clause 15.2 (Market Disruption); and

 

(ii)                           it gives the Facility Agent and the relevant Lender not less than 5 Business Days prior notice.

 

(d)                          The replacement of a Lender pursuant to paragraph (a)(A)(1) above shall be subject to the following conditions:

 

(i)                              no Relevant Finance Party shall have any obligation to find a replacement Lender;

 

(ii)                           any replaced Lender shall not be required to refund, or to pay or surrender to any other Lender, any of the fees or other amounts received by that replaced Lender under any Finance Document; and

 

(iii)                        any replacement of a Lender which is the Facility Agent shall not affect its role as the Facility Agent.

 

10.5                               Right of Cancellation in Relation to a Defaulting Lender

 

Without prejudice to the Company’s rights under Clause 2.2 (Increase):

 

(a)                           If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent 3 Business Days notice of cancellation of each Available Commitment of that Lender.

 

(b)                          On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

(c)                           The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

 

11.                                     VOLUNTARY PREPAYMENT

 

11.1                               Voluntary Prepayment

 

(a)                           Any Borrower may, by giving to the Facility Agent not less than 5 Business Days prior written notice to that effect (unless an Instructing Group has given its prior consent to a shorter period):

 

88



 

(i)                              repay the A Facility Advance, the A1 Facility Advance or the A2 Facility Advance (as applicable) drawn by it in whole or in part (but if in part, in an amount that reduces the Sterling Amount of the A Facility Advance, the A1 Facility Advance or the A2 Facility Advance (as applicable) by a minimum amount of £5,000,000 and an integral multiple of £1,000,000) together with accrued interest on the amount repaid without premium or penalty but subject to the payment of any Break Costs (if applicable); and

 

(ii)                           subject to Clause 12.8 (Prepayment Fee), repay the B Facility Advance or the B1 Facility Advance drawn by it under the B Facility or B1 Facility respectively in whole or in part (but if in part, in an amount that reduces the Sterling Amount of the relevant B Facility Advance or B1 Facility Advance respectively by a minimum amount of £5,000,000 and an integral multiple of £1,000,000), together with accrued interest on the amount repaid without premium or penalty but subject to the payment of any Break Costs (if applicable).

 

(b)                          Any Additional Facility Borrower may, by giving to the Facility Agent not less than 5 Business Days prior written notice to that effect (unless an Instructing Group has given its prior consent to a shorter period), repay any Additional Facility Advance by such minimum amount as is agreed by the Company and the relevant Additional Facility Lender.

 

11.2                               Application of Repayments

 

(a)                           For as long as no Event of Default is outstanding, any repayment made pursuant to Clause 11.1 (Voluntary Prepayment) shall be applied in repayment of any of the Term Facility Outstandings, in whole or in part, as selected by the Company at its discretion.

 

(b)                          For as long as an Event of Default is outstanding, any repayment made pursuant to Clause 11.1 (Voluntary Prepayment) shall be applied at the end of the Interest Period or Term current at the time of receipt of such proceeds, subject to paragraphs (d) and (f) below, firstly, in repayment of the Term Facility Outstandings pro rata to the aggregate amount of A Facility Outstandings, A1 Facility Outstandings, A2 Facility Outstandings, B Facility Outstandings, B1 Facility Outstandings and, unless otherwise specified with respect to any Additional Facility in the applicable Additional Facility Accession Deed, Additional Facility Outstandings on the date of such repayment until all A Facility Outstandings, all A1 Facility Outstandings, all A2 Facility Outstandings, all B Facility Outstandings, all B1 Facility Outstandings and, if applicable, any Additional Facility Outstandings have been repaid in full; and, secondly, in repayment of Revolving Facility Outstandings on the date of such repayment.

 

(c)                           [Not Used].

 

(d)                          Any Additional Facility Borrower may agree with any Additional Facility Lender that it shall be repaid after any of the other Term Facilities in which case the application of repayment provisions as set out in paragraphs (b) and (c) above shall be amended to reflect any such agreement without the consent of any Lender.

 

(e)                           Any repayment of A Facility Outstandings, A1 Facility Outstandings and A2 Facility Outstandings made pursuant to paragraphs (a), (b) or (c) above shall either:

 

(i)                              reduce each of the remaining Repayment Instalments for the A Facility, the A1 Facility and the A2 Facility on a pro rata basis; or

 

89



 

(ii)                           at the election of the Company made on or prior to the date upon which such repayment of the A Facility Outstandings, A1 Facility Outstandings or A2 Facility Outstandings is made pursuant to paragraph (a) above, repay the immediately succeeding four (or less, if there are fewer than four) Repayment Instalments (other than the Repayment Instalment on the relevant Final Maturity Date) for the A Facility, the A1 Facility and the A2 Facility, in chronological order of maturity, and thereafter in respect of any excess, reduce each of the remaining Repayment Instalments for the A Facility, the A1 Facility and the A2 Facility on a pro rata basis.

 

(f)                             Without prejudice to the provisions of paragraphs (a), (b) and (c) above, any B Facility Lender or B1 Facility Lender may at its sole discretion during the first 12 months from the Original Execution Date (other than in the case of a prepayment in full of the B Facility or B1 Facility (as applicable)), following such Lender’s receipt of notice of prepayment, notify the Facility Agent within 2 Business Days after receipt of such notice that it elects not to receive its share of the prepayment of the Outstandings under the B Facility or B1 Facility (as applicable) to be made pursuant to paragraphs (a), (b) or (c) above, as applicable, at the time such prepayment is to be made.  In the event such notification is made, the amount which would have been applied in prepaying such B Facility Lender or B1 Facility Lender shall instead be applied in prepayment to the Lenders of the A Facility, the A1 Facility and the A2 Facility, any accepting B Facility Lenders, any accepting B1 Facility Lenders and (unless otherwise specified with respect to any Additional Facility in the applicable Additional Facility Accession Deed) any Additional Facility Lenders, as applicable, on a pro rata basis.

 

(g)                          Any repayment of any Revolving Facility Outstandings under this Agreement shall be applied first against Revolving Facility Advances and when all Revolving Facility Advances have been repaid in full, to provide cash collateral in respect of any Outstanding L/C Amounts.

 

11.3                               Release from Obligation to Make Advances

 

A Lender for whose account a repayment is to be made under Clause 10.4 (Right of Repayment and Cancellation in Relation to a Single Lender) shall not be obliged to participate in the making of Advances (including Revolving Facility Advances) or in the issue or counter-guarantee in respect of Documentary Credits or in the provision of Ancillary Facilities on or after the date upon which the Facility Agent receives the relevant notice of intention to repay such Lender’s share of the Outstandings, on which date all of such Lender’s Available Commitments shall be cancelled and all of its Commitments shall be reduced to zero.

 

11.4                               Notice of Prepayment

 

Any notice of prepayment given by a Borrower pursuant to Clause 11.1 (Voluntary Prepayment) or Clause 10.4 (Right of Repayment and Cancellation in Relation to a Single Lender) shall be irrevocable, shall specify the date upon which such prepayment is to be made and the amount of such prepayment and shall oblige that Borrower to make such prepayment on such date.

 

11.5                               Restrictions on Repayment

 

No Borrower may repay all or any part of any Advance (including, at any time, a Revolving Facility Advance) except at the times and in the manner expressly provided for in this Agreement.

 

90



 

11.6                               Cancellation upon Repayment

 

No amount repaid under this Agreement may subsequently be reborrowed other than any amount of a Revolving Facility Advance repaid in accordance with Clause 8.1 (Repayment of Revolving Facility Advances) or any Documentary Credit repaid in accordance with this Agreement on or prior to the Final Maturity Date in respect of the Revolving Facility and upon any repayment (other than in respect of a Revolving Facility Advance, as aforesaid) the availability of the relevant Facility shall be reduced by an amount corresponding to the amount of such repayment and the Available Commitment of each Lender in relation to that Facility shall be cancelled in an amount equal to such Lender’s Proportion of the amount repaid.  For the avoidance of doubt, unless expressly agreed to the contrary in the relevant Ancillary Facility Documents, this Clause 11.6 shall not apply to any Ancillary Facility.

 

12.                                     MANDATORY PREPAYMENT AND CANCELLATION

 

12.1                               Change of Control

 

If a Change of Control occurs, all of the Available Commitments shall immediately be cancelled, the Commitments of each Lender in respect of each Facility shall be reduced to zero and the Company shall procure that the Outstandings are immediately repaid in full together with unpaid interest accrued thereon and all other amounts payable pursuant to Clause 31 (Borrowers’ Indemnities) and any other provision of this Agreement.

 

12.2                               [Not Used]

 

12.3                               [Not Used]

 

12.4                               [Not Used]

 

12.5                               [Not Used]

 

12.6                               [Not Used]

 

12.7                               [Not Used]

 

12.8                               Prepayment Fee

 

The repayment of the B Facility Advance and the B1 Facility Advance in full pursuant to Clause 11.1(a)(ii) (Voluntary Prepayment) or Clause 12.1 (Change of Control) shall be subject to the payment of a prepayment premium. The amount of such premium as well as the period for which it applies with respect to each of the B Facility and the B1 Facility shall be the amount and period as set out in the B Facility Accession Deed with each reference in such Deed to the B Facility being deemed a reference to each of the B Facility and the B1 Facility.

 

12.9                               [Not Used]

 

13.                                     INTEREST ON REVOLVING FACILITY ADVANCES

 

13.1                               Interest Payment Date for Revolving Facility Advances

 

On (a) each Repayment Date (and, if the Term of any Revolving Facility Advance exceeds 6 months, on the expiry of each period of 6 months during such Term) or (b) if Clause 17.2(d)

 

91



 

(Lender Tax Status) applies, the relevant Confirmation Date, the relevant Borrowers shall pay accrued interest on each Revolving Facility Advance made to it.

 

13.2                               Interest Rate for Revolving Facility Advances

 

The rate of interest applicable to each Revolving Facility Advance during its Term shall be the rate per annum which is the sum of the Revolving Facility Margin, the Mandatory Cost for such Advance at such time (if applicable) and, in relation to any Revolving Facility Advance denominated in euro, EURIBOR, or in relation to any Revolving Facility Advance denominated in any other currency, LIBOR, for the relevant Term.

 

13.3                               Margin Ratchet for Revolving Facility Advances

 

(a)                           Subject to paragraph (c) below, if in respect of any Quarter Date falling not less than 6 months after the Original Execution Date, the ratio of Consolidated Net Debt to Consolidated Operating Cashflow computed on the same basis as the ratio set out in paragraph (a) of Clause 23.2 (Ratios) is within the range of ratios set out in column 1 of the table set out below (rounded to the second decimal number), then the Revolving Facility Margin shall be reduced or increased to the percentage rate per annum set out opposite the relevant range in column 2.

 

Leverage Ratio

 

 

 

Margin

 

 

 

 

 

 

 

Greater than

 

3.75:1.00

 

3.50

%

 

 

 

 

 

 

Equal to or less than

 

3.75:1.00 but greater than 3.25:1.00

 

3.25

%

 

 

 

 

 

 

Equal to or less than

 

3.25:1.00 but greater than 2.75:1.00

 

3.00

%

 

 

 

 

 

 

Equal to or less than

 

2.75:1.00

 

2.75

%

 

(b)                          Any reduction or increase to the Revolving Facility Margin in accordance with paragraph (a) above shall take effect in relation to Revolving Facility Advances with effect from the date of receipt by the Facility Agent in respect of the relevant Quarter Date of:

 

(i)                              the quarterly financial information required to be delivered in accordance with Clause 22.1 (Financial Statements); and

 

(ii)                           a Compliance Certificate required to be delivered in accordance with Clause 22.5 (Compliance Certificates) evidencing the relevant ratio of Consolidated Net Debt to Consolidated Operating Cashflow,

 

and shall apply until the date of receipt by the Facility Agent of the quarterly financial information and Compliance Certificate in respect of the next succeeding Quarter Date on which the financial covenants are required to be tested pursuant to Clause 23.2 (Ratios) having regard to the provisions of paragraph (d) thereof (or if such financial information and Compliance Certificate are not so delivered, the last day upon which such financial information and Compliance Certificate should have been so delivered in accordance with Clause 22.1 (Financial Statements) and Clause 22.5 (Compliance Certificates) in respect of such Quarter Date) whereupon the Revolving Facility Margin shall be recalculated on the basis of such financial information and Compliance Certificate.

 

92



 

(c)                           Upon the occurrence of any Event of Default, the Revolving Facility Margin shall revert to 3.50% and shall remain at such rate for so long as such Event of Default is continuing and when such Event of Default ceases to be continuing it shall revert:

 

(i)                              in the case of an Event of Default set out in paragraph (c) of Clause 27.2 (Covenants), upon the date on which the Facility Agent has received a Compliance Certificate confirming compliance with the financial covenants set out in Clause 23 (Financial Condition); or

 

(ii)                           in the case of any other Event of Default either (A) upon the date on which the Facility Agent has received a certificate of a duly authorised officer of the Company certifying that such Event of Default has been remedied, in which case, immediately upon receipt of such certificate or (B) where the Lenders have waived such Event of Default in accordance with the terms of this Agreement, immediately upon the Facility Agent having confirmed to the Company that such Event of Default has been waived,

 

in each case, to the applicable rate provided in paragraph (a) above by reference to:

 

(x)                          in the case of an Event of Default of the type referred to in paragraph (c)(i) above, the ratio of Consolidated Net Debt to Consolidated Operating Cashflow set out in the Compliance Certificate referred to therein; or

 

(y)                        in the case of any other Event of Default, the ratio of Consolidated Net Debt to Consolidated Operating Cashflow set out in the Compliance Certificate most recently delivered to the Facility Agent prior to the remedy or waiver of such Event of Default.

 

14.                                     INTEREST ON TERM FACILITY ADVANCES

 

14.1                               Interest Periods for Term Facility Advances

 

The period for which a Term Facility Advance is outstanding shall be divided into successive periods (each an “Interest Period”) each of which (other than the first) shall start on the last day of the preceding such period.

 

14.2                               Duration

 

The duration of each Interest Period shall, save as otherwise provided in this Agreement, be 1, 2, 3 or 6 months in respect of each Term Facility other than the B Facility and B1 Facility and, in respect of the B Facility and B1 Facility, 2, 3 or 6 months, or, in each case, such other period of up to 12 months as all the Lenders holding Commitments (in the case of the first Interest Period for a Term Facility Advance, and thereafter, Outstandings) under the relevant Facility may agree, in each case, as the relevant Borrower may select by no later than 2:00 p.m. on the date falling 3 Business Days before the first day of the relevant Interest Period, provided that:

 

(a)                           if such Borrower fails to give such notice of selection in relation to an Interest Period, the duration of that Interest Period shall, subject to the other provisions of this Clause 14, be 3 months; and

 

(b)                          any Interest Period that would otherwise end during the month preceding or extend beyond a Repayment Date relating to the Term Facility Outstandings shall be of such duration that it shall end on that Repayment Date if necessary to ensure that there are Advances under the relevant Term Facility with Interest Periods ending on the

 

93



 

relevant Repayment Date in a sufficient aggregate amount to make the repayment due on that Repayment Date.

 

14.3                               Consolidation and Division of Term Facility Advances

 

(a)                           Subject to paragraph (b) below, if two or more Interest Periods:

 

(i)                              relate to Term Facility Advances under the same Term Facility made to the same Borrower in the same currency; and

 

(ii)                           end on the same date,

 

those Term Facility Advances will, unless that Borrower (or the Company on its behalf) specifies to the contrary for the next Interest Period, be consolidated into, and treated as, a single Term Facility Advance on the last day of the Interest Period.

 

(b)                          Subject to the requirements of Clause 14.2 (Duration), a Borrower (or the Company on its behalf) may, by no later than 2:00 p.m. on the date falling 3 Business Days before the first day of the relevant Interest Period, direct that any Term Facility Advance borrowed by it shall, at the beginning of the next Interest Period relating to it, be divided into (and thereafter, save as otherwise provided in this Agreement, be treated in all respects as) 2 or more Advances in such amounts (equal in aggregate to the Sterling Amount of the Term Facility Advance being so divided) as shall be specified by that Borrower or the Company in such notice provided that no such direction may be made if:

 

(i)                              as a result of so doing, there would be more than 10 Advances outstanding under the relevant Term Facility; or

 

(ii)                           any Term Facility Advance thereby coming into existence would have a Sterling Amount of less than £25 million.

 

14.4                               Payment of Interest for Term Facility Advances

 

On (a) the last day of each Interest Period (or if such day is not a Business Day, on the immediately succeeding Business Day in the then current month (if there is one) or the preceding Business Day (if there is not)), and if the relevant Interest Period exceeds 6 months, on the expiry of each 6 month period during that Interest Period, or (b) if Clause 17.2(d) (Lender Tax Status) applies, the relevant Confirmation Date, the relevant Borrower shall pay accrued interest on the Term Facility Advance to which such Interest Period relates.

 

14.5                               Interest Rate for Term Facility Advances

 

The rate of interest applicable to a Term Facility Advance at any time during an Interest Period relating to it shall be the rate per annum which is the sum of the Applicable Margin, the Mandatory Cost for such Advance at such time (if applicable) and, LIBOR, for such Interest Period.

 

14.6                               Margin Ratchet for A Facility Advances, A1 Facility Advances and A2 Facility Advances

 

(a)                           Subject to paragraph (c) below, if in respect of any Quarter Date falling not less than 6 months after the Original Execution Date the ratio of Consolidated Net Debt to Consolidated Operating Cashflow computed on the same basis as the ratio set out in

 

94



 

paragraph (a) of Clause 23.2 (Ratios) is within the range of ratios set out in column 1 of the table set out below (rounded to the second decimal number), then the A Facility Margin, the A1 Facility Margin and the A2 Facility Margin shall be reduced or increased to the percentage rate per annum set out opposite the relevant range in column 2.

 

Leverage Ratio

 

 

 

Margin

 

 

 

 

 

 

 

Greater than

 

3.75:1.00

 

3.50

%

 

 

 

 

 

 

Equal to or less than

 

3.75:1.00 but greater than 3.25:1.00

 

3.25

%

 

 

 

 

 

 

Equal to or less than

 

3.25:1.00 but greater than 2.75:1.00

 

3.00

%

 

 

 

 

 

 

Equal to or less than

 

2.75:1.00

 

2.75

%

 

(b)                          Any reduction or increase to the A Facility Margin, the A1 Facility Margin and the A2 Facility Margin in accordance with paragraph (a) above shall take effect in relation to A Facility Advances, A1 Facility Advances and A2 Facility Advances with effect from the date of receipt by the Facility Agent in respect of the relevant Quarter Date of:

 

(i)                              the quarterly financial information required to be delivered in accordance with Clause 22.1 (Financial Statements); and

 

(ii)                           a Compliance Certificate required to be delivered in accordance with Clause 22.5 (Compliance Certificates) evidencing the relevant ratio of Consolidated Net Debt to Consolidated Operating Cashflow,

 

and shall apply until the date of receipt by the Facility Agent of the quarterly financial information and Compliance Certificate in respect of the next succeeding Quarter Date on which the financial covenants are required to be tested pursuant to Clause 23.2 (Ratios) having regard to the provisions of paragraph (d) thereof (or if such financial information and Compliance Certificate are not so delivered, the last day upon which such financial information and Compliance Certificate should have been so delivered in accordance with Clause 22.1 (Financial Statements) and Clause 22.5 (Compliance Certificates) in respect of such Quarter Date) whereupon the A Facility Margin, the A1 Facility Margin and the A2 Facility Margin shall be recalculated on the basis of such financial information and Compliance Certificate.

 

(c)                           Upon the occurrence of any Event of Default, the A Facility Margin, the A1 Facility Margin and the A2 Facility Margin shall revert to 3.50% and shall remain at such rate for so long as the Event of Default is continuing and when such Event of Default ceases to be continuing it shall revert:

 

(i)                              in the case of an Event of Default set out in paragraph (c) of Clause 27.2 (Covenants), upon the date on which the Facility Agent has received a Compliance Certificate confirming compliance with the financial covenants set out in Clause 23 (Financial Condition); or

 

(ii)                           in the case of any other Event of Default either (A) upon the date on which the Facility Agent has received a certificate of a duly authorised officer of the Company certifying that such Event of Default has been remedied, immediately upon receipt of such certificate or (B) where the Lenders have waived such Event of Default in accordance with the terms of this Agreement, immediately upon the Facility Agent having confirmed to the Company that such Event of Default has been waived,

 

95



 

in each case, to the applicable rate provided in paragraph (a) above by reference to:

 

(A)                    in the case of an Event of Default of the type referred to in paragraph (c)(i) above, the ratio of Consolidated Net Debt to Consolidated Operating Cashflow set out in the Compliance Certificate referred to therein; or

 

(B)                      in the case of any other Event of Default, the ratio of Consolidated Net Debt to Consolidated Operating Cashflow set out in the Compliance Certificate most recently delivered to the Facility Agent prior to the remedy or waiver of such Event of Default.

 

14.7                               Margin Ratchet for the B Facility Advance and the B1 Facility Advance

 

The B Facility Margin in respect of a B Facility and the B1 Facility Margin in respect of a B1 Facility shall be subject to any reduction or increase as may be set forth in the B Facility Accession Deed.

 

14.8                               Interest on Additional Facilities

 

The rate of interest on any Additional Facility and the timing of payment of such interest shall be regulated by the relevant Additional Facility Accession Deed.

 

14.9                               Notification

 

The Facility Agent shall promptly notify the relevant Borrowers and the Lenders of each determination of LIBOR, EURIBOR, the Mandatory Cost, and any change to the proposed length of a Term or Interest Period or any interest rate occasioned by the operation of Clause 15 (Market Disruption and Alternative Interest Rates).

 

15.                                     MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES

 

15.1                               Absence of Quotations

 

Subject to Clause 15.2 (Market Disruption):

 

(a)                           if LIBOR or, if applicable, EURIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation on the Quotation Date in accordance with Clause 15.2 (Market Disruption), the applicable LIBOR or EURIBOR shall be determined on the basis of the quotations of the remaining Reference Banks; or

 

(b)                          if Clause 15.3 (Alternative Reference Bank Rate) applies but an Alternative Reference Bank does not supply a quotation in accordance with Clause 15.3 (Alternative Reference Bank Rate), the applicable Alternative Reference Bank Rate shall be determined on the basis of the quotations of the remaining Alternative Reference Banks.

 

15.2                              Market Disruption

 

(a)                           If a Market Disruption Event occurs in relation to an Advance for any Interest Period, then the rate of interest applicable to each Lender’s portion of such Advance during the relevant Interest Period or Term shall (subject to any agreement reached pursuant to Clause 15.4 (Alternative Rate)) be the rate per annum which is the sum of:

 

96



 

(i)                              the Applicable Margin;

 

(ii)                           the Alternative Reference Bank Rate or (if an Alternative Market Disruption Event has occurred with respect to an Advance for the relevant Interest Period of that Advance) the rate per annum notified to the Facility Agent by such Lender before the last day of such Interest Period or Term to be that which expresses as a percentage rate per annum the cost to such Lender of funding from whatever sources it may reasonably select its portion of such Advance during such Interest Period or Term provided that if more than one such rate is notified to the Facility Agent pursuant to this Clause 15.2(a)(ii), the rate shall be the average of those rates so notified; and

 

(iii)                        the Mandatory Cost, if any, applicable to such Lender’s participation in the relevant Advance.

 

(b)                          If:

 

(i)                              the percentage rate per annum notified by a Lender pursuant to paragraph (a)(ii) above is less than the Alternative Reference Bank Rate; or

 

(ii)                           a Lender has not notified the Facility Agent of a percentage rate per annum pursuant to paragraph (a)(ii) above,

 

the cost to that Lender of funding its participation in that Advance for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Alternative Reference Bank Rate.

 

(c)                           In this Agreement:

 

Alternative Market Disruption Event” means:

 

(i)                              before close of business in London on the date falling one Business Day after the Quotation Date for the relevant Interest Period or Term, none or only one of the Alternative Reference Banks supply a rate to the Facility Agent to determine the Alternative Reference Bank Rate for the relevant Interest Period or Term; or

 

(ii)                           before close of business in London on the Quotation Day for the relevant Interest Period or Term, the Facility Agent receives notifications from a Lender or Lenders to whom in aggregate 40% or more of the relevant Advance is owed (or, in the case of an undrawn Advance, if made would be owed) that the cost to it of funding its participation from whatever source it may reasonably select would be in excess of the Alternative Reference Bank Rate; and

 

Market Disruption Event” means:

 

(i)                              at or about noon on the Quotation Date for the relevant Interest Period or Term none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR or, if applicable, EURIBOR for the relevant currency and Interest Period; or

 

(ii)                           before close of business in London on the Quotation Date for the relevant Interest Period or Term, the Facility Agent receives notifications from a Lender or Lenders to whom in aggregate 40% or more of the relevant Advance is owed (or, in the case of an undrawn Advance, if made would be owed) that the

 

97



 

cost to it of funding its participation from whatever source it may reasonably select would be in excess of LIBOR or, if applicable, EURIBOR.

 

15.3                               Alternative Reference Bank Rate

 

(a)                           If a Market Disruption Event occurs, the Facility Agent shall as soon as is practicable request each of the Alternative Reference Banks to supply to it the rate at which that Alternative Reference Bank could have borrowed funds in the relevant currency and for the relevant period in the London interbank market or, in relation to an Advance in euro, the European interbank market at or about 11:00 a.m. or, in relation to an Advance in euro, at or about 11:00 a.m. (Brussels time) on the Quotation Date for the Interest Period of that Advance, were it to have done so by asking for and then accepting interbank offers for deposits in reasonable market size in the currency of that Advance and for a period comparable to the Interest Period of that Advance.

 

(b)                          As soon as is practicable after receipt of the rates supplied by the Alternative Reference Banks, the Facility Agent will notify the Company and the Lenders of the arithmetic mean of the rates supplied to it in accordance with paragraph (a) above (the “Alternative Reference Bank Rate”).

 

15.4                               Alternative Rate

 

If Clause 15.2 (Market Disruption) applies and the Facility Agent or the Company so requires, the Facility Agent and the Company shall enter into negotiations with a view to agreeing an alternative basis:

 

(a)                           for determining the rate of interest from time to time applicable to such Advances; and/or

 

(b)                          upon which such Advances may be maintained (whether in Sterling or some other currency) thereafter,

 

and any such alternative basis that is agreed shall take effect in accordance with its terms and be binding on each party to this Agreement, provided that the Facility Agent may not agree any such alternative basis without the prior consent of each Lender holding Outstandings under each applicable Facility, acting reasonably.

 

16.                                     COMMISSIONS AND FEES

 

16.1                               Commitment Fees

 

(a)                           The Borrowers shall pay to the Facility Agent for the account of each relevant Lender (other than an Ancillary Facility Lender) a commitment commission on the aggregate amount of such Lender’s Available Revolving Facility Commitment  made available by it (other than any Ancillary Facility) from day to day during the period beginning on the earlier of (i) the first Utilisation Date and (ii) 30 days after the Original Execution Date and ending on the Termination Date for the Revolving Facility, such commitment commission to be calculated at a rate of 40% of the applicable Revolving Facility Margin, payable in arrears on the last day of each successive period of 3 months which ends during such period and on the Termination Date for the Revolving Facility.

 

(b)                          No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Available Revolving Facility Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

98



 

16.2                               Arrangement and Underwriting Fee

 

(a)                           The Company shall pay to the Bookrunners the fees specified in the Senior Fee Letter at the times and in the amounts specified in such letter.

 

(b)                          The Company shall pay to any Additional Facility Lenders the fees specified in the relevant Additional Facility Accession Deed at the times and in the amounts specified in such Additional Facility Accession Deed.

 

16.3                               Agency Fee

 

The Company shall pay to the Facility Agent and the Security Trustee for their own account the fees specified in the letter dated on or about the Original Execution Date from the Facility Agent to the Company at the times and in the amounts specified in such letter.

 

16.4                               Documentary Credit Fee

 

Each Borrower shall, in respect of each Documentary Credit issued on its behalf pay to the Facility Agent for the account of each L/C Lender (for distribution in proportion to each L/C Lender’s L/C Proportion of such Documentary Credit) a documentary credit fee in the currency in which the relevant Documentary Credit is denominated at a rate equal to the applicable Revolving Facility Margin applied on the Outstanding L/C Amount in relation to such Documentary Credit (less any amount which has been repaid or prepaid).  Such documentary credit fee shall be paid in arrears on each Quarter Date during the Term of the relevant Documentary Credit and on the relevant Expiry Date (or the date of its repayment, prepayment or cancellation, if earlier) for that Documentary Credit.

 

16.5                               L/C Bank Fee

 

Each relevant Borrower shall pay:

 

(a)                           to the Original L/C Bank a fronting fee in respect of each Documentary Credit requested by it and issued by the Original L/C Bank in the amount and at the times agreed in the letter dated on or about the Original Execution Date between the Original L/C Bank and the Company; and

 

(b)                          to any other L/C Bank a fronting fee in respect of each Documentary Credit requested by it and issued by that L/C Bank, in the amount and at the times agreed in any letter entered into between such L/C Bank and such Borrower.

 

17.                                     TAXES

 

17.1                               Tax Gross-up

 

(a)                           Each payment made by the Parent or an Obligor under a Relevant Finance Document shall be made by it without any Tax Deduction, unless a Tax Deduction is required by Law.  Any Tax Deduction in relation to any payment due in any currency other than Sterling shall be calculated using the Facility Agent’s Spot Rate of Exchange on the date such payment is made and the Parent and the Obligors shall have no liability if any subsequent credit or refund received by any Lender from any tax authority in relation thereto is in a different amount (when converted to the non-Sterling currency on any date).

 

(b)                          As soon as it becomes aware that the Parent or an Obligor is or will be required by Law to make a Tax Deduction (or that there is any change in the rate at which or the

 

99



 

basis on which such Tax Deduction is to be made) the Parent or the relevant Obligor shall notify the Facility Agent accordingly.  Similarly, a Lender shall notify the Facility Agent and the Parent upon becoming so aware in respect of a payment payable to that Lender.

 

(c)                           If a Tax Deduction is required by Law to be made by the Parent or an Obligor, the amount of the payment due shall, unless paragraph (f) below applies, be increased to an amount so that, after the required Tax Deduction is made, the payee receives an amount equal to the amount it would have received had no Tax Deduction been required.

 

(d)                          If a Tax Deduction is required by Law to be made by the Facility Agent or the Security Trustee (other than by reason of the Facility Agent or the Security Trustee performing its obligations as such under this Agreement through an office located outside the United Kingdom) from any payment to any Relevant Finance Party which represents an amount or amounts received from the Parent or an Obligor, either the Parent or that Obligor, as the case may be, shall, unless paragraph (f) below applies, pay directly to that Relevant Finance Party an amount which, after making the required Tax Deduction enables the payee of that amount to receive an amount equal to the payment which it would have received if no Tax Deduction had been required.

 

(e)                           If a Tax Deduction is required by Law to be made by the Facility Agent or the Security Trustee from any payment to any Relevant Finance Party under paragraph (d) above, the Facility Agent or the Security Trustee as appropriate shall unless paragraph (g) below applies, make that Tax Deduction and any payment required in connection with that Tax Deduction to the relevant taxing authority within the time allowed and in the minimum amount required by Law and within 30 days of making either a Tax Deduction or any payment in connection with that Tax Deduction, the Facility Agent or the Security Trustee, as appropriate, making that Tax Deduction or other payment shall deliver to the relevant Borrower evidence that the Tax Deduction or other payment has been made or accounted for to the relevant tax authority.

 

(f)                             Neither the Parent nor any Obligor is required to make a Tax Payment to a Lender under paragraphs (c) or (d) above for a Tax Deduction in respect of tax imposed by the United Kingdom on a payment of interest in respect of a participation in an Advance by that Lender to any UK Borrower where that Lender is not a Qualifying UK Lender on the date on which the relevant payment of interest is due (otherwise than as a consequence of a Change in Tax Law) to the extent that payment could have been made without a Tax Deduction if that Lender had been a Qualifying UK Lender on that date.

 

(g)                          Either the Parent or the relevant Obligor which is required to make a Tax Deduction shall make that Tax Deduction and any payment required in connection with that Tax Deduction to the relevant taxing authority within the time allowed and in the minimum amount required by Law.

 

(h)                          Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, either the Parent or the relevant Obligor making that Tax Deduction or other payment shall deliver to the Facility Agent for the Relevant Finance Party entitled to the interest to which such Tax Deduction or payment relates, evidence that the Tax Deduction or other payment has been made or accounted for to the relevant tax authority.

 

100



 

17.2                               Lender Tax Status

 

(a)                           Each Lender represents and warrants to the Facility Agent and to each Borrower:

 

(i)                              in the case of an Original Lender, that as at the Original Execution Date, it has the tax status set out opposite its name in Part 2 of Schedule 1 (Lender Tax Status); or

 

(ii)                           in the case of any other Lender, that as at the relevant Transfer Date or Increase Date, it is:

 

(A)                     a UK Bank Lender;

 

(B)                       a UK Non-Bank Lender and falls within paragraph (a) or (b) of the definition thereof; or

 

(C)                       a UK Treaty Lender,

 

as the same shall be expressly indicated in the relevant Transfer Deed or Increase Confirmation.

 

(b)                          Each Lender expressed to be a “UK Non-Bank Lender” in Part 2 of Schedule 1 (Lender Tax Status) or in the Transfer Deed or Increase Confirmation pursuant to which it becomes a Lender represents and warrants to:

 

(i)                              the Facility Agent and to each UK Borrower, on the Original Execution Date, or on the relevant Transfer Date or Increase Date (as the case may be) that it is within paragraph (a) of the definition of UK Non-Bank Lender on that date (unless, if it is not within such paragraph (a), it is within paragraph (b) of such definition on that date, and has notified the Facility Agent of the circumstances by virtue of which it falls within such paragraph (b) and has provided evidence of the same to the Company if and to the extent requested to do so, by the Facility Agent; and

 

(ii)                           the Facility Agent and to each UK Borrower, that unless it notifies the Facility Agent and the Company to the contrary in writing prior to any such date, its representation and warranty in paragraph (i) above is true in relation to that Lender’s participation in each Advance made to such Borrower, on each date that such UK Borrower makes a payment of interest in relation to such Advance.

 

(c)                           A Lender that intends to qualify as a UK Treaty Lender and either the Parent or the relevant Obligor that makes a payment to which that Lender is entitled shall cooperate in completing any procedural formalities as may be necessary for either the Parent or the relevant Obligor to obtain authorisation to make that payment without a Tax Deduction; provided, however, that nothing in this paragraph (c) shall require a Lender to disclose any confidential information or information regarding its business, tax affairs or tax computations (including, without limitation, its tax returns or its calculations).

 

(d)                           (i)          If, in relation to any interest payment to a Lender on an Advance made to a UK Borrower:

 

(A)                     that Lender has confirmed to the relevant UK Borrower and to the Facility Agent before that interest payment would otherwise fall due that:

 

101



 

(1)                          it has completed the necessary procedural formalities referred to in paragraph (c) above; and

 

(2)                          H.M. Revenue & Customs has not declined to issue the authorisation referred to in the definition of “UK Treaty Lender” (the “Authorisation”) to that Lender in relation to that Advance, or if H.M. Revenue & Customs has declined, the Lender is disputing that decision in good faith; and

 

(B)                       the relevant UK Borrower has not received the Authorisation,

 

then, such Lender may elect, by not less than 5 Business Days prior confirmation in writing to the Facility Agent, that such interest payment (the “relevant Interest Payment”) shall not be due and payable under Clause 13.1 (Interest Payment Date for Revolving Facility Advances) or Clause 14.4 (Payment of Interest for Term Facility Advances) (as applicable) until the date (the “Confirmation Date”) which is 5 Business Days after the earlier of:

 

(X)                      the date on which the Authorisation is received by the relevant UK Borrower;

 

(Y)                       the date that Lender confirms to the relevant UK Borrower and the Facility Agent that it is not entitled to claim full relief from liability to taxation otherwise imposed by the United Kingdom (in relation to that Lender’s participation in Advances made to that UK Borrower) on interest under a Double Taxation Treaty in relation to the relevant Interest Payment; and

 

(Z)                       the earlier of (I) the date which is 6 months after the date on which the relevant Interest Payment had otherwise been due and payable and (II) the date of final repayment (whether scheduled, voluntary or mandatory) of principal in respect of the relevant Interest Payment.

 

(ii)                           For the avoidance of doubt, in the event that sub-paragraph (i) above applies, the Interest Period or Term to which the relevant Interest Payment relates shall not be extended and the start of the immediately succeeding Interest Period or Term shall not be delayed.

 

(e)                           Any Lender which was a Qualifying UK Lender when it became party to this Agreement but subsequently ceases to be a Qualifying UK Lender (other than by reason of a Change in Tax Law in the United Kingdom) shall promptly notify the UK Borrowers of that event, provided that if there is a Change in Tax Law in the United Kingdom which in the reasonable opinion of such UK Borrowers may result in any Lender which was a Qualifying UK Lender when it became a party to this Agreement ceasing to be a Qualifying UK Lender, such Qualifying UK Lender shall co-operate with such UK Borrowers and provide reasonable evidence requested by such UK Borrowers in order for such UK Borrowers to determine whether such Lender has ceased to be a Qualifying UK Lender provided, however, that nothing in this paragraph (e) shall require a Lender to disclose any confidential information or information regarding its business, tax affairs or tax computations (including without limitation, its tax returns or its calculations).

 

(f)                             For the purposes of paragraphs (a) to (e) above, each Lender shall promptly deliver such documents evidencing its corporate and tax status as the Facility Agent or the

 

102



 

Company may reasonably request, provided that in the event that any Lender fails to comply with the foregoing requirement, any Borrower shall be permitted:

 

(i)                              to withhold and retain an amount in respect of the applicable withholding tax estimated in good faith by such Borrower to be required to be withheld in respect of interest payable to such Lender; or

 

(ii)                           subject to the provisions of paragraph (a) of Clause 37.5 (Assignments or Transfers by Lenders), to refuse to grant its consent to such transfer.

 

(g)                          In the event that either the Facility Agent or the Company has reason to believe that any representation given by a Lender in accordance with this Clause 17.2 is incorrect or inaccurate, the Facility Agent or the Company (as the case may be) shall promptly inform the other party and the relevant Lender, and may thereafter request such documents relating to the corporate and tax status of such Lender as the Facility Agent or the Company may reasonably require for the purposes of determining whether or not such representation was indeed incorrect.

 

(h)                          If, following delivery of such documentation and following consultation between the Facility Agent, the Company and the relevant Lender, the Company concludes (acting reasonably and in good faith) that there is insufficient evidence to determine the relevant tax status of such Lender, the relevant Borrower shall be permitted in respect of such Lender, to withhold and retain an amount in respect of the applicable withholding tax estimated in good faith by such Borrower to be required to be withheld in respect of interest payable to such Lender until such time as that Lender has delivered sufficient evidence of its tax status to the Facility Agent and the Company.

 

17.3                               Tax Indemnity

 

(a)                           Subject to paragraph (b) below, the Company shall (within 5 Business Days of demand by the Facility Agent) pay (or procure that either the Parent or the relevant Obligor pays) for the account of a Protected Party an amount equal to any Tax Liability which that Protected Party reasonably determines has been or will be suffered by that Protected Party (directly or indirectly) in connection with any Relevant Finance Document.

 

(b)                          Paragraph (a) above shall not apply:

 

(i)                              with respect to any Tax Liability of a Protected Party in respect of Tax on Overall Net Income of that Protected Party; or

 

(ii)                           to the extent that any Tax Liability has been compensated for by an increased payment or other payment under paragraphs (c) or (d) of Clause 17.1 (Tax Gross-up) or would have been compensated for by such an increased payment or other payment, but for the application of paragraph (f) of Clause 17.1 (Tax Gross-up).

 

(c)                           A Protected Party making, or intending to make, a claim pursuant to paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim together with supporting evidence, following which the Facility Agent shall notify the Company and provide such evidence to it.

 

(d)                          A Protected Party shall, on receiving a payment from either the Parent or an Obligor under this Clause 17.3, notify the Facility Agent.

 

103



 

(e)                           In this Clause 17.3:

 

Tax Liability” means, in respect of any Protected Party:

 

(i)                              any liability or any increase in the liability of that person to make any payment of or in respect of tax;

 

(ii)                           any loss of any relief, allowance, deduction or credit in respect of tax which would otherwise have been available to that person;

 

(iii)                        any setting off against income, profits or gains or against any tax liability of any relief, allowance, deduction or credit in respect of tax which would otherwise have been available to that person; and

 

(iv)                       any loss or setting off against any tax liability of a right to repayment of tax which would otherwise have been available to that person.

 

For this purpose, any question of whether or not any relief, allowance, deduction, credit or right to repayment of tax has been lost or set off in relation to any person, and if so, the date on which that loss or set off took place, shall be conclusively determined by that person, acting reasonably and in good faith and such determination shall be binding on the relevant parties to this Agreement.

 

Tax on Overall Net Income” means, in relation to a Protected Party, tax (other than tax deducted or withheld from any payment) imposed on the net income received or receivable (but not any sum deemed to be received or receivable) by that Protected Party by the jurisdiction in which the relevant Relevant Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which the Relevant Finance Party is treated as residing for tax purposes or in which the relevant Relevant Finance Party’s Facility Office or head office is situated.

 

17.4                               Tax Credit

 

(a)                           If either the Parent or an Obligor makes a Tax Payment and the relevant Relevant Finance Party determines, in its sole opinion, that:

 

(i)                              a Tax Credit is attributable to that Tax Payment; and

 

(ii)                           that Relevant Finance Party has obtained, utilised and retained that Tax Credit,

 

the Relevant Finance Party shall (subject to paragraph (b) below and to the extent that such Relevant Finance Party can do so without prejudicing the availability and/or the amount of the Tax Credit and the right of that Relevant Finance Party to obtain any other benefit, relief or allowance which may be available to it) pay to either the Parent or the relevant Obligor such amount which that Relevant Finance Party determines, in its sole opinion, will leave it (after that payment) in the same after-tax position as it would have been in had the Tax Payment not been required to be made by the Parent or the relevant Obligor.

 

(b)                           (i)          Each Relevant Finance Party shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilises any Tax Credits and shall not be obliged to arrange its business or its tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit.

 

104



 

(ii)                           No Relevant Finance Party shall be obliged to disclose to any other person any information regarding its business, tax affairs or tax computations (including, without limitation, its tax returns or its calculations).

 

(iii)                        If a Relevant Finance Party has made a payment to the Parent or an Obligor pursuant to this Clause 17.4 on account of a Tax Credit and it subsequently transpires that that Relevant Finance Party did not receive that Tax Credit, or received a reduced Tax Credit, either the Parent or such Obligor, as the case may be, shall, on demand, pay to that Relevant Finance Party the amount which that Relevant Finance Party determines, acting reasonably and in good faith, will put it (after that payment is received) in the same after-tax position as it would have been in had no such payment or a reduced payment been made to the Parent or such Obligor.

 

(c)                           No Relevant Finance Party shall be obliged to make any payment under this Clause 17.4 if, by doing so, it would contravene the terms of any applicable Law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).

 

18.                                     INCREASED COSTS

 

18.1                               Increased Costs

 

Subject to Clause 18.3 (Exceptions), each Borrower shall, within 3 Business Days of a demand by the Facility Agent, pay for the account of a Relevant Finance Party the amount of any Increased Cost incurred by that Relevant Finance Party or any of its Affiliates as a result (direct or indirect) of:

 

(a)                           the introduction or implementation of or any change in (or any change in the interpretation, administration or application of) any Law, regulation, practice or concession or any directive, requirement, request or guideline (whether or not having the force of law but where such law, regulation, practice, concession, directive, requirement, request or guideline does not have the force of law, it is one with which banks or financial institutions subject to the same are generally accustomed to comply) of any central bank, including the European Central Bank, the Financial Services Authority or any other fiscal, monetary, regulatory or other authority after the Original Execution Date; or

 

(b)                          compliance with any Law, regulation, practice, concession or any such directive, requirement, request or guideline made after the Original Execution Date.

 

18.2                               Increased Costs Claims

 

(a)         A Relevant Finance Party intending to make a claim pursuant to Clause 18.1 (Increased Costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the relevant Borrower.

 

(b)                          Each Relevant Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its, or if applicable, its Affiliate’s Increased Costs and setting out in reasonable detail the circumstances giving rise to such claim and its calculations in relation to such Increased Costs.

 

18.3                               Exceptions

 

Clause 18.1 (Increased Costs) does not apply to the extent any Increased Cost:

 

105



 

(a)                           is attributable to a Tax Deduction required by Law to be made by the Parent or an Obligor, as the case may be;

 

(b)                          is compensated for by Clause 17.3 (Tax Indemnity) (or would have been compensated for by Clause 17.3 (Tax Indemnity) but was not so compensated solely because paragraph (b) of Clause 17.3 (Tax Indemnity) applied) or because of any failure to complete necessary procedural formalities under paragraph (c) of Clause 17.2 (Lender Tax Status);

 

(c)                           is compensated for by the payment of the Mandatory Cost;

 

(d)                          is attributable to the gross negligence of or wilful breach by, the Relevant Finance Party or, if applicable, any of its Affiliates of any law, regulation, practice, concession, directive, requirement, request or guideline, to which the imposition of such Increased Cost relates;

 

(e)                           suffered by a Relevant Finance Party and in respect of which that Relevant Finance Party intends to make a claim pursuant to paragraph (a) of Clause 18.2 (Increased Costs Claims), is not (and its claim under paragraph (a) of Clause 18.2 (Increased Costs Claims) is not) notified by that Relevant Finance Party to the Facility Agent within 30 days of that Relevant Finance Party becoming aware that it had suffered the relevant Increased Cost; or

 

(f)                             is attributable to the implementation of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the Original Execution Date (“Basel II”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Relevant Finance Party or any of its Affiliates).

 

18.4                               Basel III

 

In respect of Clauses 18.1 and 18.2 and the payment of any Increased Costs attributable to the implementation of or compliance with Basel III, the Borrowers’ obligation to pay such costs to a Relevant Finance Party shall be subject to that Relevant Finance Party confirming to the Borrowers, at the relevant time that any such costs are due, that the payment of such costs is consistent with the general approach that that Relevant Finance Party is taking with respect to other similarly rated borrowers. For the avoidance of doubt, any failure by a particular Relevant Finance Party to provide such confirmation shall not in any way affect the obligation of the Borrowers to pay any other Relevant Finance Party.

 

19.                                     ILLEGALITY

 

19.1                              Illegality of a Lender

 

If at any time after a Lender becomes a party to this Agreement it becomes unlawful in any applicable jurisdiction for such Lender to perform any of its obligations as contemplated by this Agreement or any Ancillary Facility Document respectively or to make, fund, issue or maintain its participation in any Utilisation or, in the case of an Ancillary Facility Lender, any utilisation under any Ancillary Facility:

 

(a)                           that Lender shall promptly notify the Facility Agent upon becoming aware of that event;

 

106



 

(b)                          upon the Facility Agent notifying the Company, the Commitments of that Lender shall immediately be reduced to zero and cancelled or, if required by the Company, on such date transferred to another bank or institution willing to accept that transfer; and

 

(c)                           upon the Facility Agent notifying the Company, the Company shall procure that each Borrower will, on such date as the Facility Agent shall have specified (being no earlier than the last day permitted by law):

 

(i)                              repay that Lender’s participation in the Utilisations utilised by that Borrower (together with accrued interest on and all other amounts owing to that Lender under the Relevant Finance Documents) or, if required by the Company, that Lender’s participations shall on such date be transferred at par to another bank or institution willing to accept that transfer (to the extent it is lawful for such Lender to undertake such transfer); and/or

 

(ii)                           repay each amount payable or, as the case may be, provide full cash cover in respect of each contingent liability under each Ancillary Facility of that Ancillary Facility Lender.

 

19.2                               Illegality in Relation to an L/C Bank

 

If it becomes unlawful in any relevant jurisdiction for an L/C Bank to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Documentary Credit (an “Affected Documentary Credit”):

 

(a)                           that L/C Bank shall promptly notify the Facility Agent upon becoming aware of that event:

 

(b)                          upon the Facility Agent notifying the Company, that L/C Bank shall not be obliged to issue any future Documentary Credit that would give rise to such unlawfulness; and

 

(c)                           upon the Facility Agent notifying the Company, each relevant Borrower shall use its best endeavours to procure the release of any Affected Documentary Credit.

 

20.                                     MITIGATION

 

20.1                               Mitigation

 

(a)                           Each Relevant Finance Party shall in consultation with the relevant Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under, or pursuant to, or cancelled pursuant to, any of Clause 17 (Taxes), Clause 18 (Increased Costs), Schedule 7 (Mandatory Cost Formula) or Clause 19 (Illegality) including (but not limited to) transferring its rights and obligations under the Relevant Finance Documents to another Affiliate or Facility Office or financial institution acceptable to such Borrower which is willing to participate in any Facility in which such Lender has participated.

 

(b)                          Paragraph (a) above does not in any way limit the obligations of the Parent or any Obligor under the Relevant Finance Documents.

 

20.2                               Limitation of Liability

 

(a)                           With effect from the Original Execution Date, each of the Borrowers agrees to indemnify each Relevant Finance Party for all costs and expenses reasonably

 

107



 

incurred by that Relevant Finance Party as a result of steps taken by it under Clause 20.1 (Mitigation).

 

(b)                          A Relevant Finance Party is not obliged to take any steps under Clause 20.1 (Mitigation) if, in the opinion of that Relevant Finance Party (acting reasonably), to do so might in any way be prejudicial to it.

 

21.                                     REPRESENTATIONS AND WARRANTIES

 

21.1                               Time for making Representations and Warranties

 

(a)                           Each Obligor in relation to itself and, to the extent expressed to be applicable to them, its Subsidiaries, makes each of the following representations and warranties to each Relevant Finance Party on the Original Execution Date other than in the case of the representations given under Clause 21.16 (Accuracy of Information) which shall be given as of the applicable dates specified in that Clause.

 

(b)                          The Ultimate Parent in relation to itself makes each of the representations and warranties set out in Clauses 21.2 (Due Organisation), 21.5 (No Immunity), 21.6 (Governing Law and Judgments), 21.7 (All Actions Taken), 21.8 (No Filing or Stamp Taxes), 21.9 (Binding Obligations), 21.10 (No Winding-up), 21.13 (Original Financial Statements) (as to the Original Financial Statements provided by it), 21.14 (No Material Adverse Change), 21.15 (No Undisclosed Liabilities), 21.18 (Execution of Relevant Finance Documents), 21.21 (Necessary Authorisations), 21.27 (Investment Company Act), 21.28 (Margin Stock), 21.33 (US Patriot Act) and 21.34 (Compliance with ERISA) to each Relevant Finance Party on the Original Execution Date.  Any Holding Company of the Ultimate Parent who accedes to this Agreement pursuant to Clause 26.3 (Acceding Holding Company) makes each of the Repeating Representations, to the extent they are listed in the foregoing sentence, with respect to itself on the date on which it accedes to this Agreement.

 

(c)                           The Parent in relation to itself makes each of the representations and warranties set out in Clauses 21.2 (Due Organisation), 21.3 (No Deduction), 21.4 (Claims Pari Passu), 21.5 (No Immunity), 21.6 (Governing Law and Judgments), 21.7 (All Actions Taken), 21.8 (No Filing or Stamp Taxes), 21.9 (Binding Obligations), 21.10 (No Winding-up), paragraph (c) of Clause 21.17 (Indebtedness and Encumbrances), 21.18 (Execution of Relevant Finance Documents), paragraph (c) of Clause 21.19 (Structure), 21.21 (Necessary Authorisations), 21.26 (Security) and 21.30 (Centre of Main Interests), to each Relevant Finance Party on the Original Execution Date.

 

21.2                               Due Organisation

 

It is a company duly organised or a partnership duly formed, in either case, validly existing under the laws of its jurisdiction of incorporation or establishment with power to enter into those of the Relevant Finance Documents to which it is party and to exercise its rights and perform its obligations thereunder and all corporate and (subject to paragraph (c) of the definition of Reservations) other action required to authorise its execution of those of the Relevant Finance Documents to which it is party and its performance of its obligations have been duly taken.

 

21.3                               No Deduction

 

Under the laws of its Relevant Tax Jurisdiction in force as at the Original Execution Date, it will not be required to make any deduction for or withholding on account of tax from any

 

108



 

payment it may make under any of the Relevant Finance Documents to any Lender which is a Qualifying UK Lender.

 

21.4                               Claims Pari Passu

 

Subject to the Reservations, the claims of the Relevant Finance Parties against it under the Relevant Finance Documents to which it is party rank and will rank at least pari passu with the claims of all its unsecured and unsubordinated creditors save those whose claims are preferred by any bankruptcy, insolvency, liquidation or similar laws of general application.

 

21.5                               No Immunity

 

In any legal proceedings taken in its jurisdiction of incorporation or establishment and, if different, England in relation to any of the Relevant Finance Documents to which it is party it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.

 

21.6                               Governing Law and Judgments

 

Subject to the Reservations, in any legal proceedings taken in its jurisdiction of incorporation or establishment in relation to any of the Relevant Finance Documents to which it is party, the choice of law expressed in such documents to be the governing law of it and any judgment obtained in such jurisdiction will be recognised and enforced.

 

21.7                               All Actions Taken

 

All acts, conditions and things required to be done, fulfilled and performed in order:

 

(a)                           to enable it lawfully to enter into, exercise its rights under and perform and comply with all material obligations expressed to be assumed by it in the Relevant Finance Documents to which it is party;

 

(b)                          subject to the Reservations, to ensure that all material obligations expressed to be assumed by it in the Relevant Finance Documents to which it is party are legal, valid and binding; and

 

(c)                           subject to the Reservations, to make the Relevant Finance Documents to which it is party admissible in evidence in its jurisdiction of incorporation or establishment and, if different, the United Kingdom,

 

have been done, fulfilled and performed.

 

21.8                               No Filing or Stamp Taxes

 

Under the laws of its Relevant Tax Jurisdiction and, if different, the United Kingdom, in force as at the Original Execution Date, it is not necessary that any of the Relevant Finance Documents to which it is party be filed, recorded or enrolled with any court or other authority in such jurisdiction or that any stamp, registration or similar tax be paid on or in relation to any of them other than those filings which are necessary to perfect the Security and save as stated in the Reservations.

 

21.9                               Binding Obligations

 

Subject to the Reservations, the obligations expressed to be assumed by it in the Relevant Finance Documents to which it is party, are legal, valid and binding and enforceable against

 

109



 

it in accordance with the terms thereof and no limit on its powers will be exceeded as a result of the borrowings, grant of security or giving of guarantees contemplated by such Relevant Finance Documents or the performance by it of any of its obligations thereunder.

 

21.10                         No Winding-up

 

(a)                           None of the Ultimate Parent, the Parent, the Company  or any other Obligor that is a Material Subsidiary is taking any corporate action nor are any other steps being taken (including the commencement of any legal proceedings) against the Ultimate Parent, the Parent, the Company or any other Obligor that is a Material Subsidiary, for its winding-up, dissolution or administration or for the appointment of a receiver, administrator, administrative receiver, conservator, custodian, trustee or similar officer of it or of any or all of its assets or revenues save as permitted under paragraphs (b), (c) or (d) of Clause 25.8 (Mergers), Clause 25.18 (Internal Reorganisations) or as otherwise disclosed to the Facility Agent prior to the Original Execution Date.

 

(b)                          Each US Obligor is Solvent.

 

21.11                         No Event of Default

 

No Event of Default is continuing or might reasonably be expected to result from the making of any Advance.

 

21.12                         No Material Proceedings

 

No litigation, arbitration or administrative proceeding of or before any court, arbitral body, or agency which is reasonably likely to be determined adversely to it and which, if so adversely determined, has or is reasonably likely to have a Material Adverse Effect has been started or, to the best of its knowledge, is threatened in writing or, is pending against it or any member of the Bank Group other than litigation, arbitration or administrative proceedings commenced prior to the Original Execution Date, details of which have been disclosed to the Lenders prior to the Original Execution Date.

 

21.13                         Original Financial Statements

 

Its Original Financial Statements were prepared in accordance with GAAP which has been consistently applied (unless and to the extent expressly disclosed to the Facility Agent in writing to the contrary before the Original Execution Date) and fairly present in all material respects the consolidated financial position of the group of companies to which they relate at the date as of which they were prepared and/or (as appropriate) the results of operations and changes in financial position during the period for which they were prepared.

 

21.14                         No Material Adverse Change

 

Since publication of its Original Financial Statements, no event or series of events has occurred, in each case, which has or is reasonably likely to have a Material Adverse Effect.

 

21.15                         No Undisclosed Liabilities

 

As at 31 December 2009, neither the Ultimate Parent nor any of its Subsidiaries had any material liabilities (contingent or otherwise) which were not disclosed in the Original Financial Statements (including the notes thereto) or reserved against therein and the Group had no material unrealised or anticipated losses arising from commitments entered into by it which were not so disclosed or reserved against, in each case, to the extent required to be disclosed by GAAP.

 

110



 

21.16                         Accuracy of Information

 

In the case of the Company only:

 

(a)                           to the best of its knowledge and belief having made all reasonable and proper enquiries, all statements of fact relating to the business, assets, financial condition and operations of the Group contained in the Information Memorandum are true, complete and accurate in all material respects as at the date it is issued;

 

(b)                          the opinions and views expressed in the Information Memorandum and the Agreed Business Plan represent the honestly held opinions and views of the Company and were arrived at after careful consideration and were based on reasonable grounds as at the dates on which they were prepared;

 

(c)                           all financial projections and forecasts made by any member of the Bank Group in the Information Memorandum or the Agreed Business Plan have been prepared in good faith and are based upon reasonable assumptions (it being understood that such financial projections are subject to significant uncertainties, many of which are beyond the control of the Company and that no assurance can be given that such projections will be realised); and

 

(d)                          (other than in respect of the financial projections and forecasts referred to in paragraph (c) above), the Information Memorandum does not omit to disclose or take into account any matter known to the Company after due and careful enquiry where failure to disclose or take into account such matter would result in the Information Memorandum being misleading in any material respect as at the date it is issued.

 

21.17                         Indebtedness and Encumbrances

 

(a)                           Save as permitted under this Agreement, neither it nor any member of the Bank Group has incurred any Financial Indebtedness which is outstanding.

 

(b)                          Save as permitted under this Agreement, no Encumbrance exists over all or any of the present or future revenues or assets of any member of the Bank Group.

 

(c)                           In relation to the Parent only, save as provided in the Security Documents no Encumbrance exists over any of its rights, title or interest in the shares of the Company or the Parent Intercompany Debt owed to it by the Company.

 

21.18                         Execution of Relevant Finance Documents

 

Its execution of the Relevant Finance Documents to which it is party and the exercise of its rights and performance of its obligations thereunder do not and will not:

 

(a)                           conflict with any agreement, mortgage, bond or other instrument or treaty to which it is a party or which is binding upon it or any of its assets (save as contemplated by paragraph (c) of the definition of Reservations) in a manner that has or is reasonably likely to have a Material Adverse Effect;

 

(b)                          conflict with any matter contained in its constitutional documents; or

 

(c)                           conflict with any applicable law.

 

111



 

21.19                         Structure

 

(a)                           The Group Structure Chart is a complete and accurate representation of the structure of the Group in all material respects prior to the Original Execution Date.

 

(b)                          The Company is a wholly-owned Subsidiary of the Parent.

 

(c)                           In the case of the Parent, it does not carry on any business or conduct any activities (other than in respect of the Existing High Yield Notes, and any on-lending of the proceeds thereof).

 

21.20                         Environmental Matters

 

(a)                           It has to the best of its knowledge and belief:

 

(i)                              complied with all Environmental Laws to which it is subject;

 

(ii)                           obtained all Environmental Licences required in connection with its business; and

 

(iii)                        complied with the terms of all such Environmental Licences,

 

in each case where failure to do so has or is reasonably likely to have a Material Adverse Effect.

 

(b)                          To the best of its knowledge and belief, there is no Environmental Claim pending or threatened against it, which has or is reasonably likely to have a Material Adverse Effect.

 

(c)                           No:

 

(i)                              property currently or previously owned, leased, occupied or controlled by it is contaminated with any Hazardous Substance; and

 

(ii)                           discharge, release, leaking, migration or escape of any Hazardous Substance into the Environment has occurred or is occurring on, under or from that property,

 

in each case in circumstances where the same has or is reasonably likely to have a Material Adverse Effect.

 

21.21                         Necessary Authorisations

 

(a)                           The Necessary Authorisations required by it are in full force and effect;

 

(b)                          it is in compliance with the material provisions of each Necessary Authorisation relating to it; and

 

(c)         to the best of its knowledge, none of the Necessary Authorisations relating to it are the subject of any pending or threatened proceedings or revocation,

 

in each case, except where any failure to maintain such Necessary Authorisations in full force and effect, any non-compliance or any proceedings or revocation has or is reasonably likely to have a Material Adverse Effect and subject to the Reservations.

 

112



 

21.22                         Intellectual Property

 

The Intellectual Property Rights owned by or licensed to it are all the material Intellectual Property Rights required by it in order to carry out, maintain and operate its business, properties and assets, and so far as it is aware, it does not infringe, in any way any Intellectual Property Rights of any third party save, in each case, where the failure to own or license the relevant Intellectual Property Rights or any infringement thereof has or is reasonably likely to have a Material Adverse Effect.

 

21.23                         Ownership of Assets

 

Save to the extent disposed of in a manner permitted by the terms of any of the Relevant Finance Documents with effect from and after the Original Execution Date, it has good title to or valid leases or licences of or is otherwise entitled to use all material assets necessary to conduct its business taken as a whole in a manner consistent with the Agreed Business Plan except to the extent that the failure to have such title, leases or licences or to be so entitled has or is reasonably likely to have a Material Adverse Effect.

 

21.24                         Payment of Taxes

 

It has no claims or liabilities which are being, or are reasonably likely to be, asserted against it with respect to taxes which, if adversely determined, has or is reasonably likely to have a Material Adverse Effect save to the extent it (or any member of the Group) having set aside proper reserves for such claims or liabilities, can demonstrate that the same are being contested in good faith on the basis of appropriate professional advice.  All reports and returns on which taxes are required to be shown have been filed within any applicable time limits and all material taxes required to be paid have been paid within any applicable time period other than to the extent that a failure to do so has or is reasonably likely to have a Material Adverse Effect.

 

21.25                         Pension Plans

 

(a)                           Each UK DB Scheme has been valued by an actuary appointed by the trustees of such plan in all material respects in accordance with all laws applicable to it and using actuarial assumptions and recommendations complying with statutory requirements or approved by the actuary and since the most recent valuation the relevant employers have paid contributions to the plan in accordance with the schedule of contributions in force from time to time in relation to the plan, in the case of each of the foregoing, save to the extent that any failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

(b)                          Neither it nor any ERISA Affiliate has, at any time, maintained or contributed to, and is not obliged to maintain or contribute to, any Plan that is subject to Title IV or Section 302 of ERISA and/or Section 412 of the Code or any Multiemployer Plan.

 

21.26                         Security

 

Subject to the Reservations, it is the legal or beneficial owner of all assets and other property which it purports to charge, mortgage, pledge, assign or otherwise secure pursuant to each Security Document and (subject to their registration or filing at appropriate registries for the purposes of perfecting the Security created thereunder and the Reservations) those Security Documents to which it is a party create and give rise to valid and effective Security having the ranking expressed in those Security Documents.

 

113



 

21.27                         Investment Company Act

 

Neither it nor any of its Subsidiaries is required to register as an “investment company,” or a company “controlled” by an “investment company,” as such terms are defined in the US Investment Company Act of 1940, as amended.  Neither the making of any Drawing, nor the application of the proceeds or repayment thereof by any Obligor, nor the consummation of the other transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or order of the SEC promulgated thereunder.

 

21.28                         Margin Stock

 

In the case of the Ultimate Parent only, no Advance (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock.  Neither the making of any Advance nor the use of the proceeds thereof nor the occurrence of any other Utilisation will violate or be inconsistent with the provisions of Regulation T, Regulation U or Regulation X.

 

21.29                         Insurance

 

Each member of the Bank Group is adequately insured for the purposes of its business with reputable underwriters or insurance companies against such risks and to such extent as is necessary or usual for prudent companies carrying on such a business (other than insurance in respect of the underground portion of the cable network and various pavement-based electronics associated with the cable network as disclosed in the Group’s public disclosure documents) and except to the extent that the failure to so insure has or is reasonably likely to have a Material Adverse Effect.

 

21.30                         Centre of Main Interests

 

Its Centre of Main Interests is the place in which its registered office is situated or, if different, another place in the country in which its registered office is situated, or England.

 

21.31                         Broadcasting Act 1990

 

Neither it nor any member of any Joint Venture Group is a “disqualified person” for the purposes of schedule 2 to such Act.

 

21.32                         Telecommunications, Cable and Broadcasting Laws

 

(a)                           To the best of its knowledge and belief, it and each member of each Joint Venture Group is in compliance in all material respects with all Telecommunications, Cable and Broadcasting Laws (but excluding, for these purposes only, breaches of Telecommunications, Cable and Broadcasting Laws which have been expressly waived by the relevant regulatory authority), in each case, where failure to do so would reasonably be expected to have a Material Adverse Effect.

 

(b)                          To the best of its knowledge and belief, it and each member of each Joint Venture Group is in compliance in all material respects with any conditions set by the Director General of Telecommunications or by OFCOM under section 45 of the Communications Act 2003 as are applicable to it or such member of the Joint Venture Group (as the case may be), in each case, where failure to do so would reasonably be expected to have a Material Adverse Effect.

 

114



 

21.33                         US Patriot