-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LIAcD1jPVgntIjacziSbw1dypZA5c9OoDMtrWXDiXTBy3Q14Iz9tT/y26Z33AbWb heFu13V7stmKgoOS36GMTw== 0000950123-01-504614.txt : 20010725 0000950123-01-504614.hdr.sgml : 20010725 ACCESSION NUMBER: 0000950123-01-504614 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 20010724 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NTL COMMUNICATIONS CORP CENTRAL INDEX KEY: 0000906347 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 521822078 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-65742 FILM NUMBER: 1687011 BUSINESS ADDRESS: STREET 1: 110 E 59TH ST STREET 2: 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2129068440 MAIL ADDRESS: STREET 1: 110 EAST 59TH STREET STREET 2: 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: NTL INC /DE/ DATE OF NAME CHANGE: 19970326 FORMER COMPANY: FORMER CONFORMED NAME: INTERNATIONAL CABLETEL INC DATE OF NAME CHANGE: 19930601 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NTL INC/DE/ CENTRAL INDEX KEY: 0001114937 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 134105887 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-65742-01 FILM NUMBER: 1687012 BUSINESS ADDRESS: STREET 1: 110 EAST 59TH STREET STREET 2: 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2129068440 MAIL ADDRESS: STREET 1: 110 EAST 59TH STREET STREET 2: 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 S-3 1 y49999s-3.txt FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 2001 REGISTRATION NOS. 333- AND 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- NTL COMMUNICATIONS CORP. NTL INCORPORATED (EXACT NAME OF EACH OF THE REGISTRANTS AS SPECIFIED IN ITS CHARTER) DELAWARE 4899 52-1822078 DELAWARE 4899 13-4105887 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
110 EAST 59TH STREET NEW YORK, NEW YORK 10022 (212) 906-8440 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF EACH REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
COPIES TO: RICHARD J. LUBASCH, ESQ. THOMAS H. KENNEDY, ESQ. ADRIAN J. S. DEITZ, ESQ. EXECUTIVE VICE PRESIDENT, GENERAL SKADDEN, ARPS, SLATE, SKADDEN, ARPS, SLATE, COUNSEL AND SECRETARY MEAGHER & FLOM LLP MEAGHER & FLOM LLP NTL (DELAWARE), INC. FOUR TIMES SQUARE ONE CANADA SQUARE NTL INCORPORATED NEW YORK, NEW YORK 10036 CANARY WHARF 110 EAST 59TH STREET (212) 735-3000 LONDON E14 5DS NEW YORK, NEW YORK 10022 ENGLAND +44 20 7519 7000 (212) 906-8440
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At such time or times on and after which the Registration Statement becomes effective as the Selling Securityholders may determine. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] -------- If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [ ] -------- If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ------------------------- CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------ PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO BE AGGREGATE AGGREGATE AMOUNT OF TO BE REGISTERED REGISTERED PRICE PER UNIT OFFERING PRICE(1) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ Convertible Senior Notes Due 2008 of NTL Communications Corp. and NTL Incorporated 1,150,000,000 100% 1,150,000,000 (2) - ------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.01 par value per share of NTL Incorporated (including associated rights to purchase Series A Junior Participating Preferred Stock)(3) (4) 0 0 (5) - ------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) under the Securities Act of 1933 (the "Securities Act"). (2) Pursuant to Rule 457(p) of the Securities Act, no registration fee is payable hereby. In accordance with Rule 457(p), the registration fee of $287,500 which would otherwise be payable is offset by (i) $248,361 of the $333,600 fee paid in connection with the Form S-3/S-2 filed by NTL Incorporated (now known as NTL (Delaware), Inc.) and NTL Communications Corp. (both of which NTL Incorporated is a successor to) on June 23, 1999 (File No. 333-81395/333-81397) which registration statement was subsequently withdrawn and (ii) the $39,139 fee paid in connection with the Form S-3 filed by NTL Incorporated (now known as NTL Communications Corp.) (to which NTL Incorporated is a successor) on November 5, 1998 (File No. 333-66855) which registration statement was subsequently withdrawn. (3) Prior to the occurrence of certain events, the Series A Junior Participating Preferred Stock Purchase Rights will not be evidenced separately from shares of Common Stock. (4) Includes the shares of Common Stock initially issuable upon conversion of the Convertible Notes at the rate of 30.5550 shares of Common Stock per $1,000 principal amount of Convertible Notes. Pursuant to Rule 416 under the Securities Act, such number of shares of Common Stock registered hereby shall also include an indeterminate number of additional shares of Common Stock that may be issued from time to time upon conversation of the Convertible Notes by reason of adjustment of the conversion price in certain circumstances outlined in the prospectus. See "Description of the Convertible Notes -- Conversion". (5) Pursuant to Rule 457(i) under the Securities Act, there is no filing fee with respect to the shares of Common Stock issuable upon conversion of the Convertible Notes because no additional consideration will be received in connection with the exercise of the conversion privilege. ------------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING SECURITYHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND THE SELLING SECURITYHOLDERS ARE NOT SOLICITING OFFERS TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. Subject to completion, dated July 24, 2001 Prospectus NTL COMMUNICATIONS CORP. NTL INCORPORATED (AS CO-OBLIGOR ON A SUBORDINATED BASIS) 6 3/4% CONVERTIBLE SENIOR NOTES DUE 2008 NTL INCORPORATED SHARES OF COMMON STOCK - - Selling securityholders who are identified in this prospectus may offer and sell an indeterminate number of: -- 6 3/4% Convertible Senior Notes Due 2008 of NTL Communications Corp. and NTL Incorporated (as co-obligor on a subordinated basis) -- shares of common stock of NTL Incorporated by using this prospectus. - - The offering price for the convertible notes is not set but will be determined according to negotiation between a selling securityholder and the prospective purchaser. The offering price for the common stock will be negotiated or, if sold on the New York Stock Exchange, at prevailing market price. - - NTL Incorporated's common stock is traded on the New York Stock Exchange under the symbol "NLI". On July 23, 2001, the last reported sales price of NTL Incorporated common stock was $7.55 per share. - - There is no public market for the convertible notes, and NTL Communications Corp. and NTL Incorporated do not intend to apply to the New York Stock Exchange to list the convertible notes. PLEASE READ CAREFULLY THE RISK FACTORS SECTION BEGINNING ON PAGE 4, WHERE SPECIFIC RISKS ASSOCIATED WITH THESE SECURITIES ARE DESCRIBED, BEFORE YOU MAKE YOUR INVESTMENT DECISION. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is , 2001 3 TABLE OF CONTENTS
PAGE ---- Prospectus Summary.......................................... 1 Risk Factors................................................ 4 Use of Proceeds............................................. 18 Unaudited Pro Forma Financial Data.......................... 19 Description of the Convertible Notes........................ 22 Registration Rights......................................... 51 United States Federal Tax Considerations.................... 52 Selling Securityholders..................................... 58 Plan of Distribution........................................ 62 Legal Matters............................................... 64 Experts..................................................... 64 Enforceability of Civil Liabilities......................... 64 Where You Can Find More Information About Us................ 65 Incorporation By Reference.................................. 66
You should rely only on the information contained in this prospectus. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer of the securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus is accurate as of the date on the front cover of this prospectus only. Our business, financial condition, results of operations and prospects may have changed since that date. In this prospectus, "NTL", the "company", "we", "us" and "our" refer to NTL Incorporated and its consolidated subsidiaries except where we expressly state that we are only referring to NTL Incorporated or NTL Communications. 4 CONDENSED NTL CORPORATE STRUCTURE The following chart illustrates on a condensed basis the corporate structure of NTL through which our operations are conducted and our investments held. The chart does not show our operating or other intermediate companies or ownership interests, including minority interests, in those entities: [NTL INCORPORATED STRUCTURE GRAPHIC] NTL Incorporated, a Delaware corporation, was incorporated in December 1999, to effect a reorganization into a holding company structure under Section 251(g) of the Delaware General Corporation Law. The holding company structure, which was implemented in May 2000 in connection with the acquisition of the residential assets of Cable & Wireless Communications plc, was accomplished through a merger. The stockholders of NTL (Delaware), Inc. (formerly NTL Incorporated) ("NTL Delaware"), at the effective time of the merger became stockholders of the new holding company, and NTL Delaware became a subsidiary of the new holding company. The new holding company then took the name NTL Incorporated. NTL Delaware was incorporated in February 1999 to effect a reorganization into a holding company structure under section 251(g) of the Delaware General Corporation ii 5 Law. The holding company structure, which was implemented in April 1999 to pursue opportunities outside the United Kingdom and Ireland, was accomplished through a merger. The stockholders of NTL Communications Corp. (formerly NTL Incorporated) ("NTL Communications"), at the effective time of the merger, became stockholders of the new holding company, and NTL Communications became a subsidiary of the new holding company. The new holding company then took the name NTL Incorporated. NTL Group Limited, a wholly-owned indirect subsidiary of NTL which was acquired in 1996, has a 30-year history in the United Kingdom as a provider of communications services. NTL conducts its operations through direct and indirect wholly-owned subsidiaries. On February 21, 2001, as required by our bank credit agreements, NTL Incorporated contributed the residential broadband and business cable operations of Cable & Wireless Communications to NTL Communications and NTL Delaware contributed the assets of NTL Business (formerly Workplace Technologies plc) to NTL Communications. NTL's principal executive office is located at 110 East 59th Street, New York, New York 10022, and its telephone number is (212) 906-8440. iii 6 PROSPECTUS SUMMARY This summary highlights information about us which is contained elsewhere or incorporated by reference in this prospectus. This summary may not contain all the information that is important to you. You should read the entire prospectus before making an investment decision. ABOUT NTL NTL, through NTL Communications and its subsidiaries, is one of the leading broadband communications and broadband services companies in the United Kingdom and the Republic of Ireland. We also provide telecommunications services in Switzerland, France and Australia and have made strategic investments in broadband cable operations in France, Germany and Sweden. Our predominant lines of business are consumer services, business services and broadcast transmission and tower services. Consumer services include residential telephony, cable television, Internet access and Interactive services. Business services include business telephony, national and international carrier telecommunications, Internet services and radio communications services. Broadcast transmission and tower services include digital and analog television and radio broadcasting, wireless network management, tower and site leasing and satellite distribution services. 1 7 THE NOTES Securities Offered............ Up to $1,150,000,000 aggregate principal amount of 6 3/4% convertible senior notes due 2008 of NTL Communications and NTL Incorporated (as co-obligor on a subordinated basis) and up to 35,138,108 shares of common stock of NTL Incorporated plus such indeterminate number of additional shares of common stock that may be issued from time to time upon conversion of the convertible notes by reason of adjustment to the conversion price in certain circumstances described herein. Maturity...................... May 15, 2008. Interest Payment Dates........ May 15 and November 15 of each year, commencing November 15, 2001. Conversion.................... The convertible notes, unless previously redeemed, are convertible at the option of the holder at any time after August 13, 2001 and before May 15, 2008 into shares of common stock of NTL Incorporated at a conversion price of $32.728 per share, subject to adjustment in some events. See "Description of the Convertible Notes -- Conversion." Optional Redemption........... After May 20, 2004 the convertible notes will be redeemable, in whole or from time to time in part, at the option of NTL Incorporated or NTL Communications on at least 30 but not more than 60 days' prior notice at the redemption prices set forth in this prospectus together with accrued and unpaid interest, if any, to the date of redemption. See "Description of the Convertible Notes -- Optional Redemption." Subordination................. The convertible notes are the joint and several unsecured obligations of NTL Incorporated and NTL Communications. The obligations of NTL Incorporated are subordinate in right of payment to the respective existing and future senior debt of NTL Incorporated. On March 31, 2001, NTL Incorporated had no senior debt outstanding. The obligations of NTL Incorporated under the convertible notes are effectively subordinated to all existing and future liabilities of its subsidiaries, including trade payables and subordinated liabilities of NTL Communications. 2 8 The convertible notes are senior debts of NTL Communications Corp. The obligations of NTL Communications under the convertible notes are effectively senior to all existing and future liabilities of NTL Incorporated, including its senior debt, pari passu with all existing and future senior debt of NTL Communications, senior to all existing and future subordinated debt of NTL Communications, and effectively subordinated to all existing and future liabilities, including trade payables, of subsidiaries of NTL Communications. Any claim against NTL Communications under the convertible notes will not have recourse to the subsidiaries of NTL Incorporated that are not subsidiaries of NTL Communications. The ability of NTL Incorporated and NTL Communications and their subsidiaries to incur additional indebtedness and liabilities is not limited by the terms of the indenture pursuant to which the convertible notes were issued. See "Description of the Convertible Notes -- Subordination of Convertible Notes to Senior Debt of NTL Incorporated." Change of Control............. In some circumstances involving a change of control of NTL Incorporated or NTL Communications holders of the convertible notes will have the right, subject to some restrictions and conditions, to require NTL Incorporated and NTL Communications to repurchase all or any part of the convertible notes at a purchase price equal to 101% of the principal amount of those convertible notes together with accrued and unpaid interest, if any, to the date of repurchase. NTL Incorporated and NTL Communications may not have sufficient funds or the financial resources necessary to satisfy, or may be precluded by the terms governing their indebtedness from satisfying, their obligations to repurchase the convertible notes and other debt that may become payable upon a change of control. See "Description of the Convertible Notes -- Repurchase at the Option of Holders." Use of Proceeds............... The selling securityholders will receive all of the net proceeds from the sale of the securities sold pursuant to this prospectus. NTL Communications and NTL Incorporated will not receive any proceeds from sales by the selling securityholders of the offered securities. 3 9 RISK FACTORS You should consider carefully all of the information set forth in this prospectus and incorporated by reference in this prospectus. See "Where you can find more information about us." You should particularly evaluate the following risks before deciding to purchase the convertible notes or the common stock issuable on conversion of the convertible notes. OUR SUBSTANTIAL LEVERAGE COULD ADVERSELY AFFECT THE FINANCIAL HEALTH OF THE COMPANY NTL Incorporated and NTL Communications are and, for the foreseeable future will continue to be, highly leveraged. On March 31, 2001, the accreted value of NTL Communications' total long-term indebtedness, without giving effect to the issuance in May 2001 of $1,150.0 million of the convertible notes, was $12,101.2 million. This debt represents approximately 59.4% of NTL Communications' total capitalization as of March 31, 2001. On March 31, 2001, the accreted value of NTL Incorporated's total long-term indebtedness, including the redeemable preferred stock was $17,244.0 million, without giving effect to the issuance in May 2001 of $1,150.0 million of the convertible notes, the issuance in May 2001 of two series of its redeemable preferred stock with aggregate liquidation preference of $594.1 million or the issuance in June 2001 of $100.0 million of NTL Incorporated's and NTL Delaware's 5 3/4% convertible subordinated notes due 2011. This debt represented approximately 70.7% of NTL Incorporated's total capitalization as of March 31, 2001. The indentures governing NTL Communications' outstanding notes permit it to incur additional indebtedness to finance its working capital and capital expenditure requirements, finance the construction of our network and finance the acquisition of assets, licenses and computer software that are used in connection with a cable business, as well as entities that are engaged in the cable business. Our substantial indebtedness could adversely affect our financial health by, among other things: - increasing our vulnerability to adverse changes in general economic conditions or increases in prevailing interest rates particularly for any borrowings at variable interest rates, - limiting our ability to obtain the additional financing we need to operate, develop and expand our business, and - requiring us to dedicate a substantial portion of our cash flow from operations to service our debt, which reduces the funds available for operations and future business opportunities. Cash interest payments of NTL Incorporated and its subsidiaries increased from $103.6 million in the three months ended March 31, 2000 to $225.2 million in the three months ended March 31, 2001 and from $222.1 million in the year ended December 31, 1999 to $590.1 million in the year ended December 31, 2000. Cash interest payment 4 10 obligations are expected to exceed $1.0 billion in 2001, and we expect them to continue to increase thereafter, at least through 2002, as a result of our higher debt levels and as indebtedness previously issued on a discount basis becomes cash pay. NTL INCORPORATED'S OBLIGATIONS UNDER THE CONVERTIBLE NOTES ARE SUBORDINATED TO ITS EXISTING AND FUTURE SENIOR DEBT NTL Incorporated's obligations under the convertible notes are unsecured and are subordinated in right of payment to all its existing and future senior debt as that term is defined in the indenture governing the convertible notes. This means that NTL Incorporated cannot make any payments on the convertible notes if it defaults on a payment of any of those senior debts. In the event of the bankruptcy, liquidation or dissolution of NTL Incorporated, its assets would be available to pay its obligations under the convertible notes only after all payments have been made on its senior debt. Because NTL Incorporated's available assets may be insufficient to pay all of its creditors upon bankruptcy or the occurrence of a similar event, you may receive nothing and are likely to receive proportionately less than the holders of its senior debt. IN SOME CIRCUMSTANCES INVOLVING A CHANGE OF CONTROL OF NTL COMMUNICATIONS OR NTL INCORPORATED, NTL COMMUNICATIONS AND NTL INCORPORATED WILL BE REQUIRED TO OFFER TO REPURCHASE OR REPAY SOME OF THEIR INDEBTEDNESS INCLUDING THE CONVERTIBLE NOTES -- IF THIS OCCURS, THEY MAY NOT HAVE THE FINANCIAL RESOURCES NECESSARY TO MAKE THOSE REPURCHASES NTL Communications and NTL Incorporated may, under some circumstances involving a change of control of NTL Communications or NTL Incorporated, be obligated to offer to repurchase their outstanding debt securities, including the convertible notes, and repay other indebtedness before maturity. We cannot assure you that we will have available financial resources necessary to repurchase those securities or repay that indebtedness in those circumstances. If NTL Communications and NTL Incorporated cannot repurchase those debt securities in the event of a change of control, the failure to repurchase would constitute an event of default under the indentures and agreements under which that indebtedness was incurred and could result in a cross-default under other indebtedness. THE ANTICIPATED CONSTRUCTION COSTS OF OUR NETWORK WILL INCREASE AS A RESULT OF OUR RECENT ACQUISITIONS AND WILL REQUIRE SUBSTANTIAL AMOUNTS OF ADDITIONAL FUNDING -- THAT ADDITIONAL FUNDING MAY NOT BE AVAILABLE ON REASONABLE TERMS OR AT ALL As a result of our recent acquisitions, our capital expenses and cost of operations for the development, construction and operation of our combined telecommunications networks will significantly increase. We estimate that significant amounts of additional funding will be necessary to meet these capital expenditure and operational requirements. We cannot be certain that: - we will be able to obtain additional financing with acceptable terms, - actual construction costs will meet our expectations, 5 11 - we will satisfy conditions precedent to advances under existing and any future credit facilities, - we will not acquire additional businesses that require additional capital, - we will be able to generate sufficient cash from operations to meet capital requirements, debt service and other obligations when required, or - we will be able to withstand exposure to exchange and interest rate fluctuations. We do not have any firm additional financing plans to address the factors listed above, and our L2.5 billion credit agreement restricts the ability of NTL Communications and its subsidiaries to incur additional debt. Both the equity and debt capital markets have recently experienced periods of significant volatility, particularly for securities issued by telecommunications and technology companies. The ability of telecommunications companies to access those markets as well as their ability to obtain financing provided by bank lenders and equipment suppliers has become more restricted and financing costs have increased. During some recent periods, the capital markets have been largely unavailable to new issues of securities by telecommunications companies. We have historically relied on issuances of high-yield debt securities, convertible debt securities and convertible preferred stock and common stock to meet our financing requirements. We cannot be certain that financing will be available to us when it is required on reasonable terms or at all. WE WILL REQUIRE ADDITIONAL FINANCING BECAUSE WE DO NOT EXPECT TO GENERATE SUFFICIENT CASH FLOW TO REPAY AT MATURITY THE ENTIRE PRINCIPAL AMOUNT OF OUR OUTSTANDING INDEBTEDNESS We anticipate that we will not generate sufficient cash flow from operations to repay at maturity the entire principal amount of our outstanding indebtedness. Some of the measures we may take to repay our debt include: - refinancing all or portions of our indebtedness, - seeking modifications of the terms of our indebtedness, and - seeking additional debt financing, which may require us to obtain the consent of some of our lenders. We cannot be certain that we will succeed in executing any of these measures or that financing will be available on reasonable terms or at all. THE COMPANIES IN WHICH WE HOLD MINORITY INVESTMENTS IN CONTINENTAL EUROPE WILL REQUIRE ADDITIONAL FINANCING TO COMPLETE THEIR NETWORK ROLLOUTS -- THEIR ABILITY TO OBTAIN SUCH FINANCING WILL DEPEND ON THEIR ABILITY TO ACCESS THE CAPITAL MARKETS AND THE VALUE OF OUR INVESTMENT COULD BE REDUCED OR DILUTED We have minority investments in broadband cable operations in Germany, Sweden and France. Each of those companies will require substantial amounts of additional 6 12 capital to complete their network rollouts and upgrades and their ability to obtain that financing will depend, in part, on their ability to access the capital markets. The ability of those companies to access the capital markets will be subject not only to the performance of such companies' business and prospects, but to conditions in the capital markets generally. In late 2000, the Swedish company (B2) postponed its proposed initial public offering as a result of unfavorable market conditions. If those companies cannot complete their planned expansions and upgrades for any reason, the value of our investments could be reduced. If those companies issue equity securities and we decide not to purchase our proportionate share of any new issue of equity securities, our investment in such companies would be diluted. WE CANNOT BE CERTAIN THAT WE WILL BE SUCCESSFUL IN INTEGRATING ACQUIRED BUSINESSES INTO OUR OPERATIONS, OR THAT WE WILL REALIZE THE BENEFITS WE ANTICIPATE FROM ANY ACQUISITION We will continue to consider strategic acquisitions and combinations that involve operators or owners of licenses to operate cable, telephone, television or telecommunications systems or services and related businesses. If consummated, some of these transactions would significantly alter our holdings and might require us to incur substantial indebtedness. We cannot assure you that, with respect to our recent acquisitions, as well as any future acquisitions, if they occur, we: - will realize any anticipated benefits, - will successfully integrate the acquired businesses with our operations, or - will manage that integration without adversely affecting NTL. Prior to our acquisition of ConsumerCo in May 2000, it was losing customers on a quarterly basis. Since the acquisition, we have focused on reducing the fault rate, improving the installation experience, continuing the digital rollout and improving the value proposition of the service bundle. This will cause our costs to increase in the near term. NTL INCORPORATED AND NTL COMMUNICATIONS ARE HOLDING COMPANIES THAT ARE DEPENDENT UPON CASH FLOW FROM THEIR SUBSIDIARIES TO MEET THEIR OBLIGATIONS -- THEIR ABILITY TO ACCESS THAT CASH FLOW MAY BE LIMITED IN SOME CIRCUMSTANCES NTL Incorporated and NTL Communications are holding companies with no independent operations or significant assets other than investments in and advances to their respective subsidiaries and affiliated joint ventures. NTL Incorporated and NTL Communications depend upon the receipt of sufficient funds from their subsidiaries to meet their respective obligations, including their obligations associated with the convertible notes. The terms of existing and future indebtedness of their respective subsidiaries and the laws of the jurisdictions under which those subsidiaries are organized generally limit the payment of dividends, loan repayments and other distributions to them, subject in some cases to exceptions that allow them to service indebtedness in the absence of specified defaults. 7 13 Your right to receive payments on or in respect of the convertible notes from NTL Incorporated or NTL Communications could be adversely affected in the event of a bankruptcy of any of NTL Incorporated's or NTL Communications' subsidiaries. Following the liquidation of a subsidiary or joint venture, the creditors of that subsidiary or joint venture will generally be entitled to be paid in full before NTL Incorporated or NTL Communications is entitled to a distribution of any assets in the liquidation. On March 31, 2001, after giving effect to the offering of $1,150.0 million of the convertible notes in May 2001 and the offering in June 2001 of $100.0 million of its 5 3/4% convertible subordinated notes due 2011, the total liabilities of NTL Incorporated's subsidiaries (including NTL Communications) would have been approximately $18,844.5 million and the total liabilities of NTL Communications' subsidiaries would have been approximately $7,540.3 million. NTL INCORPORATED AND NTL COMMUNICATIONS HAVE HISTORICALLY INCURRED LOSSES AND GENERATED NEGATIVE CASH FLOWS AND WE CANNOT ASSURE YOU THAT THEY WILL BE PROFITABLE IN THE FUTURE Construction and operating expenditures have resulted in negative cash flow which we expect will continue at least until we establish an adequate customer base. We also expect to incur substantial additional losses. We cannot be certain that we will achieve or sustain profitability in the future. Failure to achieve profitability could diminish our ability to sustain our operations and obtain additional required funds. In addition, a failure to achieve or sustain profitability would adversely affect our ability to make required payments on our indebtedness, including payments associated with the convertible notes. NTL Communications had net losses for the three months ended March 31, 2001, of $835.8 million and for the following years ended December 31: - 2000: $2,388.1 million - 1999: $716.5 million - 1998: $534.6 million - 1997: $333.1 million - 1996: $254.5 million As of March 31, 2001, NTL Communications' accumulated deficit was $5,191.0 million. NTL Incorporated had net losses for the three months ended March 31, 2001 of $1,042.9 million and for the following years ended December 31: - 2000: $2,963.7 million - 1999: $735.7 million - 1998: $534.6 million - 1997: $333.1 million 8 14 - 1996: $254.5 million As of March 31, 2001, NTL Incorporated's accumulated deficit was $5,994.0 million. In the three months ended March 31, 2001 and in the year 2000, although EBITDA was positive, NTL Incorporated had a negative cash flow from operations of $101.0 million and $301.9 million, respectively and NTL Communications had negative cash flow from operations of $160.3 million and $170.3 million, respectively. WE HAVE HISTORICALLY HAD A DEFICIENCY OF EARNINGS TO FIXED CHARGES AND OUR EARNINGS IN THE FUTURE MAY NOT BE SUFFICIENT TO COVER THOSE FIXED CHARGES, INCLUDING OUR OBLIGATIONS ASSOCIATED WITH THE CONVERTIBLE NOTES For the three months ended March 31, 2001 and for the years ended December 31, 2000, 1999, 1998, 1997 and 1996, NTL Communications' earnings were insufficient to cover fixed charges by approximately $858.6 million, $2,563.1 million, $785.2 million, $535.0 million, $350.9 million and $268.9 million, respectively. For the three months ended March 31, 2001 and for the years ended December 31, 2000, 1999, 1998, 1997 and 1996, NTL Incorporated's earnings were insufficient to cover fixed charges by approximately $1,082.0 million, $3,169.8 million, $809.8 million, $535.0 million, $350.9 million and $268.9 million, respectively. For the three months ended March 31, 2001 and for the years ended December 31, 2000, 1999, 1998 and 1997, NTL Incorporated's earnings were insufficient to cover combined fixed charges and preferred stock dividends by approximately $1,147.1 million, $3,363.8 million, $883.5 million, $553.8 million and $362.9 million, respectively. Fixed charges consist of interest expense, including capitalized interest, amortization of fees related to debt financing and rent expense deemed to be interest. Our earnings in the future may not be sufficient to cover our fixed charges and preferred stock dividends, including our obligations associated with the convertible notes. WE ARE SUBJECT TO SIGNIFICANT COMPETITION IN EACH OF OUR BUSINESS AREAS AND WE EXPECT THAT COMPETITION WILL INTENSIFY -- IF WE ARE UNABLE TO COMPETE SUCCESSFULLY OUR FINANCIAL CONDITION AND RESULTS OF OPERATIONS COULD BE ADVERSELY AFFECTED We face significant competition from established and new competitors in each of our businesses. As existing technology develops and new technologies emerge, we believe that competition will intensify in each of our business areas, particularly business telecommunications and the Internet. Some of our competitors have substantially greater financial and technical resources than we do. If we are unable to compete successfully, our financial condition and results of operations could be adversely affected. OUR PRINCIPAL BUSINESSES ARE SUBJECT TO GOVERNMENT REGULATION, INCLUDING PRICING REGULATION, AND CHANGES IN CURRENT REGULATIONS MAY ADVERSELY AFFECT US Our principal business activities in the United Kingdom, the Republic of Ireland, France, Switzerland and Australia and the activities of the companies in which we have 9 15 investments in Germany, Sweden and France are regulated and supervised by various governmental bodies. Changes in laws, regulations or governmental policy or the interpretations of those laws or regulations affecting our activities and those of our competitors, such as licensing requirements, changes in price regulation and deregulation of interconnection arrangements, could have a material adverse effect on us. We are also subject to regulatory initiatives of the European Commission. Changes in EU Directives may reduce our range of programming and increase the costs of purchasing television programing or require us to provide access to our cable network infrastructure to other service providers, which could have a material adverse effect on us. OUR BROADCAST SERVICES BUSINESS IS DEPENDENT UPON ITV AND OTHER CONTRACTS Our broadcast services business has contracts for the provision of television broadcasting transmission services with the ITV companies, Channel 4/S4C and Channel 5 in the United Kingdom and ABC and SBS in Australia. The prices that we may charge these companies for transmission services in the United Kingdom are subject to regulation by OFTEL. The contracts with the ITV companies and Channel 4/S4C terminate on December 31, 2002. Although, historically, the ITV companies and Channel 4/S4C have renewed their contracts with us, we cannot assure you that they will do so upon expiration of the current contracts, that they will not negotiate terms for provision of transmission services by us on a basis less favorable to us or that they would not seek to obtain from third parties a portion of the transmission services that we currently provide. The loss of any one of these contracts could have a material adverse effect on us. OUR U.K. BROADCAST SERVICES BUSINESS IS DEPENDENT UPON SITE SHARING ARRANGEMENTS WITH OUR PRINCIPAL COMPETITOR As a result of, among other factors, a natural shortage of potential transmission sites and the difficulties in obtaining planning permission for erection of further masts, Crown Castle U.K. Ltd. and NTL have made arrangements to share a large number of tower sites. We cannot assure you that the site sharing arrangements will not be terminated. Termination of the site sharing arrangements would have a material adverse effect on us. Under the present arrangements, one of the parties is the owner, lessor or licensor of each site and the other party is entitled to request a license to use specified facilities at that site. Each site license granted pursuant to the site sharing agreement is for an initial period expiring on December 31, 2005, subject to title to the site and to the continuation in force of the site sharing agreement. Each site sharing agreement provides that, if requested by the sharing party, it will be extended for further periods. Either party may terminate the agreement by giving 5 years' written notice until December 31, 2005 or at any date which is a date 10 years or a multiple of 10 years after December 31, 2005. 10 16 FAILURE TO MANAGE OUR GROWTH AND EXPANSION COULD HAVE A MATERIAL ADVERSE EFFECT ON US We have experienced rapid growth and development in a relatively short period, and to meet our strategic objectives will require a continuation of that growth. Management of that growth will require, among other things: - stringent control of construction and other costs, - continued development of our financial and management controls, - increased marketing activities, and - training of new personnel. Failure to manage our rapid growth and development successfully could have a material adverse effect on us. WE ARE DEPENDENT UPON A SMALL NUMBER OF KEY PERSONNEL A small number of key executive officers manage our businesses. The loss of one or more of these executive officers could have a material adverse effect on us. We believe that our future success will depend in large part on our continued ability to attract and retain highly skilled and qualified personnel. We have not entered into written employment contracts or non-compete agreements with, nor have we obtained life insurance policies covering those key executive officers. Some of our senior managers also serve as members of senior management of other companies in the telecommunications business which may reduce the amount of time they are able to dedicate to our business. THE TELECOMMUNICATIONS INDUSTRY IS SUBJECT TO RAPID TECHNOLOGICAL CHANGES AND WE CANNOT PREDICT THE EFFECT OF ANY CHANGES ON OUR BUSINESSES The telecommunications industry is subject to rapid and significant changes in technology and the effect of technological changes on our businesses cannot be predicted. The cost of implementation for emerging and future technologies could be significant, and our ability to fund such implementation may depend on our ability to obtain additional financing. We cannot be certain that we would be successful in obtaining any additional financing required. WE ARE SUBJECT TO CURRENCY RISK BECAUSE WE OBTAIN A SUBSTANTIAL AMOUNT OF FINANCING IN U.S. DOLLARS AND EURO BUT GENERALLY GENERATE REVENUES AND INCUR EXPENSES IN OTHER CURRENCIES We encounter currency exchange rate risks because we generate revenues and incur construction and operating expenses in other currencies, primarily in pounds sterling while we pay interest and principal obligations with respect to most of our existing indebtedness in U.S. dollars and Euro. We cannot assure you that the hedging transactions we have entered into or any other hedging transactions we might enter into will be successful or that shifts in the currency exchange rates will not have a material adverse effect on us. For example, to the extent that the pound sterling declines in value 11 17 against the U.S. dollar and, to a lesser extent, the Euro, and we have not fully hedged against such declines, the effective cost of servicing our U.S. dollar and Euro debt will be higher and we will incur currency losses. The decline in the relative value of the pound sterling against the U.S. dollar in 2000 was primarily responsible for our 2000 currency losses of $120.6 million. WE DO NOT INSURE THE UNDERGROUND PORTION OF OUR CABLE NETWORK We obtain insurance of the type and in the amounts that we believe are customary for similar companies. Consistent with this practice, we do not insure the underground portion of our cable network. Substantially all of our cable network is constructed underground. Any catastrophe that affects our underground cable network could result in substantial uninsured losses. SOME PROVISIONS OF THE AGREEMENTS GOVERNING OUR INDEBTEDNESS AND THE INDEBTEDNESS OF OUR SUBSIDIARIES AND PROVISIONS OF NTL INCORPORATED'S CERTIFICATE OF INCORPORATION COULD DELAY OR PREVENT TRANSACTIONS INVOLVING A CHANGE OF CONTROL OF NTL Provisions of the agreements governing our outstanding indebtedness and the indebtedness of our subsidiaries, which either require such indebtedness to be repaid or give the holder the option to require repayment, could have the effect of delaying or preventing transactions involving a change of control of NTL and its subsidiaries, including transactions in which stockholders might otherwise receive a substantial premium for their shares over then current market prices, and may limit the ability of stockholders of NTL Incorporated to approve transactions that they may deem to be in their best interest. Our certificate of incorporation contains provisions which may have the effect, alone or in combination with each other or with the existence of authorized but unissued common stock and preferred stock, of - preventing or making more difficult a hostile takeover, - making it more difficult to remove our incumbent board of directors and our officers, - adversely effecting stockholders who desire to participate in a tender offer and - depriving stockholders of possible opportunities to sell their shares at a premium. Our stockholder rights plan has a significant anti-takeover effect. In particular, the rights issuable under our stockholder rights plan will cause substantial dilution to a person or group that acquires a substantial interest in us without the prior approval of our board of directors. In addition, a holder of each share of preferred stock issuable upon exercise of a right under our shareholder rights plan is entitled to 208.33 votes and entitled to vote together with holders of NTL Incorporated common stock. As a result of these provisions and the current ownership of NTL Incorporated, no change of control of NTL Incorporated requiring stockholder approval is possible without the consent of the owners of that preferred stock. 12 18 POTENTIAL TRANSACTIONS RELATING TO THE EXCHANGE OF SOME OF OUR PREFERRED STOCK OR THE CREATION OF ONE OR MORE TRACKING STOCKS WOULD AFFECT THE NATURE OF THE RESIDUAL ASSETS REPRESENTING THE NTL INCORPORATED COMMON STOCK THAT IS ISSUABLE ON CONVERSION OF THE CONVERTIBLE NOTES Holders of our 5% cumulative preferred stock, Series A can exchange those securities for up to a 50% equity interest in an entity holding our Cablecom operations in Switzerland and any other wholly owned operations in Continental Europe outside of France. In February 2000, we issued $1.85 billion aggregate liquidation preference of our 5% cumulative preferred stock, Series A to France Telecom and a group of commercial banks. In June 2001 we agreed with France Telecom to amend some of the terms of that series of preferred stock. A holder of the preferred stock that is not a commercial bank has the right to exchange its shares of preferred stock for an equity interest in an entity into which we would be required to transfer our Cablecom operations in Switzerland and any other wholly owned operations in Continental Europe outside of France. Once these amendments are effected the exchange right will be limited to a right to exchange such preferred stock for up to a 50% interest in Cablecom. If this exchange occurs, the NTL Incorporated common stock issuable upon conversion of the convertible notes would no longer represent an equity interest in the equity stake so transferred. To the extent that transfer does not satisfy the redemption price of $1.85 billion and accrued dividends, we would be required to redeem the preferred stock for cash. This would decrease the amount of cash available to finance our operations. We are currently considering asking our shareholders to vote on a proposal to redesignate NTL Incorporated common stock into two classes and issue a class of stock tracking our broadcast operations. We currently have a preliminary proxy statement on file with the SEC which contains proposals to redesignate our common stock into two classes and issue a class of stock tracking our broadcast operations, including the national transmission and tower network infrastructure primarily in the United Kingdom and Australia. The tower tracking stock is intended to reflect the economic performance of our tower operations. NTL Incorporated's existing shares of common stock would be redesignated into a class of common stock that is intended to track the remainder of its business operations. If those proposals are put to our stockholders and approved, we currently plan to offer the shares of tower tracking stock to the public, for cash, subject to the market and other conditions at the time. However, we could choose not to make an offering at all and could for example, issue tracking stock as a dividend to our stockholders, a private placement, by an offer of exchange with the holders of NTL stock or by issuing the stock to acquire stock or assets of another company. If the redesignation and tracking stock proposal is put to our stockholders and approved, the common stock into which the convertible notes would initially be convertible would be the class of common stock whose performance is intended to track our non-tower operations including our retained interest in the equity value of NTL attributable to the NTL tower group. In the most likely circumstances involving the 13 19 issuance of the tower tracking stock, such as its issuance for cash in an initial public offering, there would be no adjustment to the conversion price of the convertible notes and no tower tracking stock would be issued on conversion. An issuance of a tracking stock as a dividend to our stockholders will result in an adjustment in accordance with the indenture to the conversion price based on the fair market value of the stock distributed as determined by our board of directors and no adjustment to the securities into which the convertible notes are convertible. In February 2000, we also began considering ways to illuminate the value of our non-U.K. cable businesses, which may include creation of a tracking stock, spin-off or a public stock or rights offering. We cannot predict what the results of our evaluation will be or when it will be completed. Transactions involving the reclassification of our common stock could result in changes to the residual assets which the common stock which is issuable on conversion of the convertible notes represents and would subject a holder of the common stock to the risks associated with a more complex capital structure. SALES OF SUBSTANTIAL AMOUNTS OF SHARES OF OUR COMMON STOCK BY SOME OF OUR PRINCIPAL SHAREHOLDERS OR THE EXPECTATION THAT SUCH SALES MAY OCCUR COULD DEPRESS THE MARKET PRICE OF OUR COMMON STOCK Based on the most current information available to us, France Telecom, Cable & Wireless and Verizon Communications beneficially own approximately 28.25%, 11.24% and 8.85%, respectively, of our common stock on a fully diluted basis. Each of those entities has been granted registration rights by us. The lock up agreements we had with France Telecom and Cable & Wireless expired on May 30, 2001. We have no lock-up agreements with Verizon Communications, and its shares became freely tradeable without restriction on May 30, 2001. Verizon has outstanding exchangeable notes due 2005 that are exchangeable into Verizon's shares after July 1, 2002. Although we do not presently expect France Telecom to sell its shares, we cannot predict the timing or manner of any sales by France Telecom or Verizon or its effect on our other shareholders. Cable & Wireless's entire holding is presently freely tradeable without restriction. While we had previously agreed with Cable & Wireless to jointly undertake a fully marketed offering starting on June 1, 2001 of its entire shareholding through an offering registered with the SEC, Cable & Wireless requested that we delay filing of the registration statement. Any sales of substantial amounts of shares of our common stock by these or other of our principal shareholders or the expectation that such sales may occur could depress the market price of our common stock. WE HAVE GRANTED SUBSTANTIAL GOVERNANCE AND ECONOMIC RIGHTS IN CONNECTION WITH THE FRANCE TELECOM INVESTMENT AND HAVE ENTERED INTO TRANSACTIONS WITH FRANCE TELECOM THAT MAY IMPACT A STOCKHOLDER'S INVESTMENT IN US. We have granted rights to France Telecom, including the right to appoint directors and pre-emptive rights in relation to issuances by us of equity securities. Exercise by France Telecom of some or all of such rights may impact us or the value of our stock held by persons other than France Telecom. 14 20 As a holder of 5% cumulative preferred stock, Series A, France Telecom has the right to exchange its shares for an equity interest in an entity into which we would be required to transfer our Cablecom operations in Switzerland and any other wholly owned operations in Continental Europe outside of France. We have agreed with France Telecom to amend the terms of that preferred stock to, among other things, limit the exchange right to exchange into an interest in our Cablecom operations only. In May, 2001, in partnership with Morgan Stanley Dean Witter Private Equity, we completed our acquisition of France Telecom's 49.9% stake in Noos, a broadband company in France. Pursuant to the acquisition agreement, we acquired 27% of Noos for $594.1 million. An additional $33.0 million purchase consideration is payable to France Telecom on transfer to Noos of specified networks following receipt of regulatory approvals. We issued two series of preferred stock to France Telecom as consideration for the acquisition of our 27% interest in Noos. One series of the preferred stock representing $472.2 million of the initial purchase consideration is mandatorily redeemable for cash by NTL Incorporated one year after issuance. The second series of preferred stock representing $121.9 million of the initial purchase consideration is mandatorily redeemable for cash by NTL Incorporated six years after issuance. Because NTL Incorporated's subsidiaries are subject to restrictions on their ability to pay dividends or make distributions to NTL Incorporated, it is likely that the initial redemption would have to be financed by NTL Incorporated. We pledged our shares in Noos to secure payment of the redemption amount under the terms of the preferred stock. THE INSTRUMENTS GOVERNING SOME OF OUR SUBSIDIARIES' INDEBTEDNESS MAY INDIRECTLY LIMIT OUR ABILITY TO PAY DIVIDENDS The indentures governing NTL Communications' senior notes impose limitations on the payment of dividends to us and consequently limit amounts available for us to pay dividends on our common stock. Further, the terms of our subsidiaries' senior credit facilities and working capital facilities restrict, and the terms of the outstanding notes issued by Diamond and NTL Triangle restrict, and the terms of other future indebtedness of our subsidiaries may generally restrict the ability of some of our subsidiaries to distribute earnings to NTL Communications or make other payments to NTL Communications. The terms of Cablecom's and NTL Australia's credit facilities also restrict the ability of these entities to distribute earnings and make other payments to NTL Incorporated. Before our recent corporate restructurings, NTL Communications and NTL Delaware had never paid cash dividends on their common stock and since NTL Incorporated's inception, it has never paid cash dividends on its common stock. In addition, the payment of any dividends in the future will be at the discretion of the board of directors and will depend upon, among other things, future earnings, operations, capital requirements, our general financial condition and the general financial condition of our subsidiaries. THE MARKET PRICE OF NTL INCORPORATED COMMON STOCK AND CONVERTIBLE NOTES IS SUBJECT TO VOLATILITY 15 21 The current market price of NTL Incorporated common stock may not be indicative of prices that will prevail in the trading markets in the future. The market price of the common stock has been subject to volatility and, in the future, the market price of the common stock and convertible notes could be subject to wide fluctuations in response to numerous factors, many of which are beyond our control. These factors include, among other things, actual or anticipated variations in our operating results and cash flow, our earnings releases and our competitors' earnings releases, announcements of technological innovations, changes in financial estimates by securities analysts, market conditions in the industry and the general state of the securities markets and the market for telecommunications stocks, changes in capital markets (particularly debt markets) that affect the perceived availability of capital to communications companies, governmental legislation or regulation, currency and exchange rate fluctuations, as well as general economic and market conditions, such as recessions. THERE HAS BEEN NO PUBLIC MARKET FOR THE CONVERTIBLE NOTES -- WE CANNOT ASSURE YOU THAT A LIQUID MARKET WILL DEVELOP FOR THE CONVERTIBLE NOTES There has been no public market for the convertible notes. The registration rights agreement does not obligate us to keep the registration statement of which this prospectus forms a part effective beyond two years from the effective date of the registration statement of which this prospectus forms a part except in limited circumstances. Although the initial purchasers of the convertible notes have advised us that they currently intend to continue to make a market in the convertible notes, they are not obligated to do so and any market making may be discontinued at any time without notice. As a result, we cannot assure you as to the ongoing development or liquidity of any market that may develop for the convertible notes. YOU SHOULD BE AWARE THAT ACTUAL RESULTS MAY TURN OUT TO BE MATERIALLY DIFFERENT FROM ANY FORWARD-LOOKING STATEMENTS INCLUDED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS This prospectus includes or incorporates by reference projections of broadcast transmission revenues, build-out results and other forward-looking statements, including those using words such as "believe," "anticipate," "should," "intend," "plan," "will," "expect," "estimate," "project," "positioned," "strategy," and similar expressions. In reviewing information included or incorporated by reference in this prospectus, keep in mind that actual results may differ materially from those expressed or implied in those projections and forward-looking statements. Important assumptions and factors that could cause actual results to differ materially from those contemplated or projected, forecast, estimated or budgeted in or expressed or implied by those projections and forward-looking statements include those specified in this Risk Factors section, as well as: - industry trends, - our ability to -- continue to design network routes and install facilities, -- obtain and maintain any required government licenses or approvals, and 16 22 -- finance construction and development, all in a timely manner, at reasonable costs and on satisfactory terms and conditions, - assumptions about -- customer acceptance, -- churn rates, -- overall market penetration and competition from providers of alternative services, and -- availability, terms and deployment of capital. We assume no obligation to update projections or other forward-looking statements to reflect actual funding requirements, capital expenditures and results, changes in assumptions or in the factors affecting these projections or other forward-looking statements. We cannot assure you that: - any financings will be obtained when required, on acceptable terms or at all, - actual amounts required to complete our planned build out will not exceed the amount we estimate (see "-- The anticipated construction costs of our network will increase as a result of our recent acquisitions and will require substantial amounts of additional funding -- that additional funding may not be available on reasonable terms or at all") or that additional financing substantially in excess of that amount will not be required, - we will not acquire franchises, licenses or other new businesses that would require additional capital, - operating cash flow will meet expectations or that we will be able to access such cash from our subsidiaries' operations to meet any unfunded portion of our capital requirements when required or to satisfy the terms of the notes, or our other debt instruments and agreements for the incurrence of additional debt financing, - we will achieve the cost savings expected as a result of the ConsumerCo acquisition and the integration of several other acquired businesses. - we will not incur losses from our exposure to exchange rate fluctuations or be adversely affected by interest rate fluctuations (see "-- We are subject to currency risk because we obtain a substantial amount of financing in US dollars and Euro but generally generate revenues and incur expenses in other currencies"), - there will not be adverse changes in applicable United States, United Kingdom, Australian, Irish, French, German, Swedish, Swiss or Bermuda tax laws, or - the future effects of monetary union in Europe will not be materially adverse to us. All forward-looking statements included or incorporated by reference in this prospectus are expressly qualified by the considerations described above. 17 23 USE OF PROCEEDS The selling securityholders will receive all of the proceeds from the sale of the securities sold using this prospectus. Neither NTL Incorporated nor NTL Communications will receive any of the proceeds from the sales by the selling securityholders of the offered securities. 18 24 UNAUDITED PRO FORMA FINANCIAL DATA The unaudited pro forma financial data presented gives effect to the completed acquisitions of Cablecom Group in March 2000 and ConsumerCo in May 2000 as if they had been consummated on January 1, 2000. The unaudited pro forma financial data is based on our historical financial statements and the historical financial statements of Cablecom and ConsumerCo from January 1, 2000 to the respective dates of acquisition. The historical financial statements of Cablecom and ConsumerCo are prepared in accordance with U.S. generally accepted accounting principles and have been translated into U.S. dollars. Certain amounts in these historical financial statements have been reclassified to conform to our presentation. The historical financial statement of Cablecom which is included in the unaudited pro forma condensed combined statement of operations has been adjusted to eliminate intercompany revenues and operating expenses that were not historically eliminated. The intercompany revenues and operating expenses were eliminated in the historical financial statements of NTL for the period from the date of acquisition to December 31, 2000. The historical results of ConsumerCo reflect certain intercompany costs and expenses as they were prior to the separation of Cable & Wireless Communications plc into CWC DataCo (which was retained by Cable & Wireless) and ConsumerCo, which was completed in the second quarter of 2000. These costs and expenses do not necessarily reflect the costs and expenses that would have been incurred if CWC DataCo and ConsumerCo were separate entities during this period. Therefore, the historical financial statement of ConsumerCo that is included in the unaudited pro forma condensed combined statement of operations is not reflective of results on a going forward basis. The Cablecom and ConsumerCo acquisitions have been accounted for using the purchase method of accounting, in which the assets acquired and liabilities assumed have been recorded at their estimated fair values. The unaudited pro forma condensed combined statement of operations for the year ended December 31, 2000 gives effect to the acquisitions of Cablecom and ConsumerCo and issuance of common stock and preferred stock as if they had been consummated on January 1, 2000. The pro forma adjustments are based upon available information and assumptions that we believe were reasonable at the time made. The unaudited pro forma financial data does not purport to present our results of operations had the acquisitions occurred on the dates specified, nor are they necessarily indicative of the results of operations that may be achieved in the future. The unaudited pro forma condensed combined statement of operations does not reflect any adjustments for cost savings that we expect to realize. The pro forma adjustments reflecting the acquisitions are based upon the assumptions set forth in the notes to the pro forma financial data. No assurances can be made as to the amount of cost savings or revenue enhancements, if any, that may be realized. 19 25 NTL INCORPORATED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS (UNAUDITED) FOR THE YEAR ENDED DECEMBER 31, 2000 (In Millions, except per share data)
NTL CABLECOM CONSUMERCO (HISTORICAL) (HISTORICAL) (HISTORICAL) ADJUSTMENTS PRO FORMA ------------ ------------ ------------ ----------- --------- REVENUES COSTS AND EXPENSES........ $ 2,840.8 $93.3 $ 469.2 $ 3,403.3 Operating expenses........ 1,387.6 36.1 195.1 1,618.8 Selling, general and administrative expenses............... 1,109.1 24.2 199.2 1,332.5 Other charges............. 92.7 -- -- 92.7 Corporate expenses........ 47.5 -- -- 47.5 Depreciation and amortization........... 2,122.8 24.9 191.8 $ 452.6A 2,792.1 --------- ----- ------- ------- --------- 4,759.7 85.2 586.1 452.6 5,883.6 --------- ----- ------- ------- --------- Operating (loss) income... (1,918.9) 8.1 (116.9) (452.6) (2,480.3) OTHER INCOME (EXPENSE) Interest income and other, net............. (119.0) (0.2) 1.7 3.9B (113.6) Interest expense.......... (1,036.8) (3.1) (132.3) (49.6)C (1,221.8) --------- ----- ------- ------- --------- Loss before income taxes.................. (3,074.7) 4.8 (247.5) (498.3) (3,815.7) Income tax benefit (provision)............ 111.0 (2.5) 54.1 162.6 --------- ----- ------- ------- --------- Net (loss) income......... (2,963.7) 2.3 (193.4) (498.3) (3,653.1) Preferred stock dividends.............. (194.0) (65.7)D (259.7) --------- ----- ------- ------- --------- Net (loss) available to common shareholders.... $(3,157.7) $ 2.3 $(193.4) $(564.0) $(3,912.8) ========= ===== ======= ======= ========= Net loss per common share -- basic and diluted................ $ (14.54) $ (14.53) ========= ========= Weighted average shares... 217.1 52.2E 269.3 ========= ======= =========
20 26 NTL INCORPORATED NOTES TO THE PRO FORMA FINANCIAL DATA (In millions, except per share data) A. DEPRECIATION AND AMORTIZATION:
CABLECOM CONSUMERCO -------- ---------- For the year ended December 31, 2000 Intangibles (Cablecom 3-10 years and ConsumerCo 10 years)............................................... $ 85.7 $ 366.9 ====== =======
B. INTEREST INCOME (USING 4.867%): For the year ended December 31, 2000 Reduction of interest income on cash on hand used...... $ (0.6) $ (2.1) Interest income on excess cash from Bank financing..... 0.0 6.6 ------ ------- $ (0.6) $ 4.5 ====== =======
C. INTEREST EXPENSE: For the year ended December 31, 2000 Reduction of interest expense for debt not assumed..... $ 0.0 $ 91.4 Interest on Bank Financing at 6.03%.................... (20.0) 0.0 Interest on Bank Financing at 8.28%.................... 0.0 (121.0) ------ ------- $(20.0) $ (29.6) ====== =======
D. PREFERRED STOCK DIVIDENDS: For the year ended December 31, 2000 5% issued to France Telecom............................ $ 0.0 $ (42.8) 5% redeemable preferred................................ (22.9) 0.0 ------ ------- $(22.9) $ (42.8) ====== =======
E. WEIGHTED AVERAGE SHARES: Shares of NTL common stock issued......................... -- 84.9 Shares of NTL common stock issued to France Telecom....... -- 42.2 ------ ------- -- 127.1 Historical Weighted Average Shares........................ -- (74.9) ------ ------- -- 52.2 ====== =======
21 27 DESCRIPTION OF THE CONVERTIBLE NOTES GENERAL The convertible notes were issued pursuant to an indenture dated as of May 15, 2001, by and between NTL Incorporated, NTL Communications and The Chase Manhattan Bank, as trustee. The following summary of selected provisions of the convertible notes, the indenture and the registration rights agreement does not purport to be complete and is qualified in its entirety by reference to the provisions of the convertible notes, the indenture and the registration rights agreement including the definitions of some of the terms used below. Those agreements are filed as exhibits to the registration statement of which this prospectus forms a part. The definitions of selected terms used in the following summary are set forth below under "-- Definitions." In this Section "Description of the Convertible Notes," the terms "NTL Incorporated" and "NTL Communications" refer to NTL Incorporated and NTL Communications, as the case may be, only and not to any of their respective subsidiaries. The convertible notes are general unsecured obligations of NTL Incorporated and NTL Communications, subordinated in right of payment to all existing and future Senior Debt of NTL Incorporated and ranking equal in right of payment with all senior unsecured Indebtedness of NTL Communications and senior in right of payment to all subordinated Indebtedness of NTL Communications as described under "-- Subordination of Convertible Notes to Senior Debt of NTL Incorporated" and convertible into common stock of NTL Incorporated as described under "-- Conversion." The indenture does not contain any financial covenants or restrictions on the payment of dividends, the incurrence of Senior Debt or issuance or repurchase of securities of NTL Incorporated or NTL Communications. The indenture contains no covenants or other provisions to afford protection to holders of the convertible notes in the event of a highly leveraged transaction or a change in control of NTL Incorporated or of NTL Communications except to the extent described under "-- Repurchase at the Option of Holders." The operations of NTL Incorporated and NTL Communications are conducted through their subsidiaries, partnerships and joint ventures and, as a result, NTL Incorporated and NTL Communications are dependent upon the cash flow of their subsidiaries, partnerships and affiliated joint ventures to meet their obligations, including their obligations under the convertible notes. As a result, the convertible notes are effectively subordinated to all existing and future liabilities of NTL Incorporated's and NTL Communications' subsidiaries, partnerships and affiliated joint ventures, including trade payables. PRINCIPAL, MATURITY AND INTEREST The convertible notes are limited to $1,150,000,000 aggregate principal amount. The convertible notes bear interest from May 15, 2001, at the rate of 6 3/4% per annum and mature on May 15, 2008. Interest on the convertible notes is payable semiannually on May 15 and November 15 of each year, commencing on November 15, 2001, to holders of record at 22 28 the close of business on May 1 or November 1 immediately preceding such interest payment date. Interest is computed on the basis of a 360-day year comprised of twelve 30-day months. Interest on the convertible notes accrues from the most recent date to which interest has been paid or, if no interest has been paid, from the date of original issuance. The convertible notes are payable as to principal, interest and liquidated damages, if any, at the office or agency of NTL Communications maintained for that purpose within the City and State of New York or, at the option of NTL Communications, payment of interest may be made by check mailed to the holders of the convertible notes at their respective addresses set forth in the register of holders of convertible notes. A holder of convertible notes with an aggregate principal amount in excess of $5,000,000 will be paid by wire transfer in immediately available funds at the election of the holder if the holder previously specified in writing to NTL Communications and the paying agent wire transfer instructions. Until otherwise designated by NTL Communications, NTL Communications office or agency in New York will be the office of the trustee maintained for such purpose. The convertible notes are payable on maturity on May 15, 2008 at 100.0% of their principal amount and have been issued in registered form, without coupons, and in denominations of $1,000 and integral multiples of $1,000. OPTIONAL REDEMPTION Except as referred to in this prospectus under "-- Optional Tax Redemption," the convertible notes are not redeemable at the option of NTL Incorporated or NTL Communications prior to May 20, 2004. Thereafter, the convertible notes will be redeemable, in whole or from time to time in part in any integral multiple of $1,000, at the option of NTL Incorporated or NTL Communications at any time after May 20, 2004, at the following redemption prices which are expressed as percentages of the principal amount set forth below, upon not less than 30 nor more than 60 days' prior notice, if redeemed during the 12-month period beginning May 15 of the years indicated (or May 20 in the case of 2004):
REDEMPTION YEAR PRICE - ---- ---------- 2004...................................................... 103.857% 2005...................................................... 102.893% 2006...................................................... 101.929% 2007...................................................... 100.964% 2008...................................................... 100.000%
In the case of a redemption of any convertible notes referred to under "-- Optional Tax Redemption," redemption of such convertible notes shall be made at the principal amount of these convertible notes together with accrued and unpaid interest and liquidated damages, if any, to the applicable redemption date. 23 29 OPTIONAL TAX REDEMPTION The convertible notes may be redeemed at the option of NTL Incorporated or NTL Communications, in whole but not in part, upon not less than 30 nor more than 60 days' prior notice, at any time at a redemption price equal to the principal amount of the convertible notes together with accrued and unpaid interest to the date fixed for redemption if after the date on which the provisions described under "-- Additional Amounts" become applicable (the "Relevant Date") there has occurred any change in or amendment to the laws (or any regulations or official rulings promulgated thereunder) of the United Kingdom, the Netherlands, Netherlands Antilles, Bermuda or the Cayman Islands, (or any political subdivision or taxing authority thereof or therein), or any change in or amendment to the official application or interpretation of such laws, regulations or rulings (a "Change in Tax Law") which becomes effective after the Relevant Date, as a result of which NTL Incorporated and NTL Communications are or would be so required on the next succeeding Interest Payment Date to pay Additional Amounts with respect to the convertible notes with respect to withholding taxes imposed by the United Kingdom, the Netherlands, Netherlands Antilles, Bermuda or the Cayman Islands, (or any political subdivision or taxing authority thereof or therein)(a "Withholding Tax") and such Withholding Tax is imposed at a rate that exceeds the rate (if any) at which Withholding Tax was imposed on the Relevant Date; provided, however, that (1)this paragraph shall not apply to the extent that, at the Relevant Date it was known or would have been known had professional advice of a nationally recognized accounting firm in the United Kingdom, the Netherlands, Netherlands Antilles, Bermuda or the Cayman Islands, as the case may be, been sought, that a Change in Tax Law in the United Kingdom, the Netherlands, Netherlands Antilles, Bermuda or the Cayman Islands, was to occur after the Relevant Date, (2)no such notice of redemption may be given earlier than 90 days prior to the earliest date on which NTL Incorporated and NTL Communications would be obliged to pay such Additional Amounts were a payment in respect of the convertible notes then due, (3)at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect, and (4)the payment of such Additional Amounts cannot be avoided by the use of any reasonable measures available to NTL Incorporated and NTL Communications. The convertible notes may also be redeemed, in whole but not in part, at any time at a redemption price equal to the principal amount of the convertible notes plus accrued and unpaid interest and liquidated damages, if any, to the date fixed for redemption if the person formed after the Relevant Date by a consolidation, amalgamation, reorganization or reconstruction or other similar arrangement of NTL Incorporated or NTL Communications or the person into which NTL Incorporated or NTL Communi- 24 30 cations is merged after the Relevant Date or to which NTL Incorporated or NTL Communications conveys, transfers or leases its properties and assets after the Relevant Date substantially as an entirety (collectively, a "Subsequent Consolidation") is required, as a consequence of such Subsequent Consolidation and as a consequence of a Change in Tax Law in the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands occurring after the date of such Subsequent Consolidation to pay Additional Amounts with respect to Withholding Tax on the convertible notes and such Withholding Tax is imposed at a rate that exceeds the rate (if any) at which Withholding Tax was or would have been imposed on the date of such Subsequent Consolidation; provided, however, that this paragraph shall not apply to the extent that, at the date of such Subsequent Consolidation it was known or would have been known had professional advice of a nationally recognized accounting firm in the United Kingdom been sought, that a Change in Tax Law in the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands was to occur after such date. NTL Incorporated or NTL Communications will also pay, or make available for payment, to holders on the redemption date any Additional Amounts (as described, but subject to the exceptions referred to, under "-- Additional Amounts") resulting from the payment of such redemption price. MANDATORY REDEMPTION Except as set forth below under "-- Repurchase at the Option of Holders," neither NTL Incorporated nor NTL Communications is required to make mandatory redemption or sinking fund payments with respect to the convertible notes. REPURCHASE AT THE OPTION OF HOLDERS Upon the occurrence of a Change of Control, each holder of convertible notes shall have the right to require NTL Incorporated and NTL Communications to repurchase all or any part, equal to $1,000 or an integral multiple of $1,000, of such holder's convertible notes pursuant to the offer described below (the "Change of Control Offer") at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest if any, on those convertible notes to the Change of Control Payment Date (the "Change of Control Payment"). Within 40 days following any Change of Control, NTL Incorporated or NTL Communications shall mail a notice to each holder stating: (1)that the Change of Control Offer is being made pursuant to the covenant entitled "Change of Control" and that all convertible notes tendered will be accepted for payment; (2)the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 40 days from the date such notice is mailed (the "Change of Control Payment Date"); (3)that any convertible notes not tendered will continue to accrue interest; 25 31 (4)that, unless NTL Incorporated and NTL Communications default in the payment of the Change of Control Payment, all convertible notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5)that holders electing to have any convertible notes purchased pursuant to a Change of Control Offer will be required to surrender the convertible notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the convertible notes completed, to the paying agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6)that holders will be entitled to withdraw their election if the paying agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of convertible notes delivered for purchase, and a statement that such holder is withdrawing his election to have such convertible notes purchased; and (7)that holders whose convertible notes are being purchased only in part will be issued new convertible notes equal in principal amount to the unpurchased portion of the convertible notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple of $1,000. NTL Incorporated and NTL Communications will comply with the requirements of Rules 13e-4 and 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the convertible notes in connection with a Change of Control. On the Change of Control Payment Date, NTL Incorporated and NTL Communications will, to the extent lawful, (1)accept for payment convertible notes or portions thereof tendered pursuant to the Change of Control Offer, (2)deposit with the paying agent an amount equal to the Change of Control Payment in respect of all convertible notes or portions thereof so tendered, and (3)deliver or cause to be delivered to the trustee the convertible notes so accepted together with an Officers' Certificate stating the convertible notes or portions thereof tendered to NTL Incorporated and NTL Communications. The paying agent shall promptly mail to each holder of convertible notes so accepted for payment (or, if such holder of convertible notes holds an aggregate principal amount in excess of $5,000,000 will be paid by wire transfer in immediately available funds at the election of such 26 32 holder if such holder previously specified in writing to NTL Communications and the paying agent) an amount equal to the purchase price for such convertible notes, and the trustee shall promptly authenticate and mail to each holder a new convertible note equal in principal amount to any unpurchased portion of the convertible notes surrendered, if any; provided that each such new convertible note shall be in a principal amount of $1,000 or an integral multiple of $1,000. NTL Communications will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Except as described above with respect to a Change of Control, the indenture does not contain any other provisions that permit the holders of the convertible notes to require that NTL Incorporated or NTL Communications repurchase or redeem the convertible notes in the event of a takeover, recapitalization or similar restructuring. Although the indenture contains several covenants, including the provision described under "-- Merger, Consolidation or Sale of Assets" below, the provisions of the indenture may not necessarily afford holders of the convertible notes protection in the event of a highly leveraged transaction, reorganization, restructuring, merger or similar transaction involving NTL Incorporated or NTL Communications that may adversely affect the holders of the convertible notes. The Change of Control Offer requirement of the convertible notes may in some circumstances make more difficult or discourage a takeover of NTL Incorporated or NTL Communications, and, as a result, the removal of incumbent management. The Change of Control Offer requirement, however, is not the result of management's knowledge of any specific effort to accumulate NTL Incorporated's stock or to obtain control of either of NTL Incorporated or NTL Communications by means of a merger, tender offer, solicitation or otherwise, or part of a plan by management to adopt a series of antitakeover provisions. Instead, the Change of Control Offer requirement is a result of negotiations between NTL Incorporated and NTL Communications and the initial purchasers. Management has no present intention to engage in a transaction involving a Change of Control, although it is possible that NTL Incorporated or NTL Communications would decide to do so in the future. Subject to the limitations discussed below, NTL Incorporated or NTL Communications could, in the future, enter into transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a Change of Control under the indenture, but that could increase the amount of indebtedness outstanding at such time or otherwise affect NTL Incorporated's or NTL Communications' capital structure or credit ratings. Change of control provisions are contained in each of the indentures for NTL Communications' notes and NTL Incorporated's and NTL Delaware's convertible notes. NTL Triangle's 11.20% Debentures also contain change of control provisions. NTL Incorporated's and NTL Communications' ability to pay cash to the holders of convertible notes pursuant to a Change of Control Offer may be limited by NTL Incorporated's and NTL Communications' then existing financial resources. Future credit agreements or other agreements relating to indebtedness of NTL Incorporated and NTL 27 33 Communications may contain prohibitions or restrictions on NTL Incorporated's and NTL Communications' ability to effect a Change of Control Payment. In the event a Change of Control occurs at a time when such prohibitions or restrictions are in effect, NTL Incorporated and NTL Communications could seek the consent of their respective lenders to the purchase of the convertible notes and other indebtedness containing change of control provisions or could attempt to refinance the borrowings that contain such prohibition. If NTL Incorporated and NTL Communications do not obtain such a consent or repay such borrowings, NTL Incorporated and NTL Communications will be effectively prohibited from purchasing the convertible notes. In such case, NTL Incorporated's and NTL Communications' failure to purchase tendered convertible notes would constitute an Event of Default under the indenture. Moreover, the events that constitute a Change of Control under the indenture constitute events of default under existing and future debt instruments or credit agreements of NTL Incorporated and NTL Communications or their subsidiaries. Such events of default may permit the lenders under such debt instruments or credit agreements to accelerate the debt and, if such debt is not paid or repurchased, to enforce their security interests in what may be all or substantially all of the assets of NTL Incorporated's and NTL Communications' subsidiaries. Any such enforcement may limit NTL Incorporated's and NTL Communications' ability to raise cash to repay or repurchase the convertible notes. For the reasons described in the three immediately preceding paragraphs, there can be no assurance that NTL Incorporated and NTL Communications will be able to repurchase the convertible notes upon a Change of Control. The board of directors of each of NTL Incorporated and NTL Communications may not, by themselves, waive or modify the Change of Control provisions of the indenture. All the provisions of the indenture, including the Change of Control provision, may only be waived or modified pursuant to the provisions described under "-- Amendment, Supplement and Waiver" below. SELECTION AND NOTICE If less than all of the convertible notes are to be redeemed at any time, selection of convertible notes for redemption will be made by the trustee in compliance with the requirements of the principal national securities exchange, if any, on which the convertible notes are listed, or, if the convertible notes are not so listed, on a pro rata basis, by lot or by such method as the trustee shall deem fair and appropriate, provided that no convertible notes of $1,000 or less shall be redeemed in part. Notice of redemption shall be mailed by first class mail at least 30 but not more than 60 days, prior to the redemption date to each holder of convertible notes to be redeemed at its registered address. If any convertible note is to be redeemed in part only, the notice of redemption that relates to such convertible note shall state the portion of the principal amount thereof to be redeemed. A new convertible note in principal amount equal to the unredeemed portion thereof will be issued in the name of the holder thereof upon cancellation of the original convertible note. On and after the redemption date, interest ceases to accrue on convertible notes or portions of them called for redemption. 28 34 CONVERSION For purposes of this section "-- Conversion," all references to "common stock" are to shares of common stock of NTL Incorporated. The holder of any convertible note will have the right, exercisable at any time after 90 days following the date of original issuance of that convertible note and prior to maturity, to convert the principal amount thereof (or any portion thereof that is an integral multiple of $1,000) into shares of NTL Incorporated common stock at a conversion price of $32.728 per share of common stock subject to adjustment as described below (the "Conversion Price"), except that if a convertible note is called for redemption, the conversion right will terminate at the close of business on the business day immediately preceding the date fixed for redemption. Upon conversion, no adjustment or payment will be made for interest, but if any holder surrenders a convertible note for conversion after the close of business on the record date for the payment of an installment of interest and prior to the opening of business on the next interest payment date, then, notwithstanding such conversion, the interest payable on such interest payment date will be paid to the registered holder of such convertible note on such record date. In such event, such convertible note, when surrendered for conversion, need not be accompanied by payment of an amount equal to the interest payable on such interest payment date on the portion so converted. No fractional shares will be issued upon conversion but a cash adjustment will be made for any fractional interest. The Conversion Price is subject to adjustment upon the occurrence of certain events, including: (1)the issuance of shares of common stock as a dividend or distribution on the common stock; (2)the subdivision or combination of the outstanding common stock; (3)the issuance to substantially all holders of common stock of rights or warrants to subscribe for or purchase common stock (or securities convertible into common stock) at a price per share less than the then current market price per share, as defined; (4)the distribution of shares of capital stock of NTL Incorporated (other than common stock), evidences of indebtedness or other assets (excluding dividends in cash, except as described in clause (5) below) to all holders of common stock; (5)the distribution, by dividend or otherwise, of cash to all holders of common stock in an aggregate amount that, together with the aggregate of any other distributions of cash that did not trigger a Conversion Price adjustment to all holders of its common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution and all Excess Payments in respect of each tender offer or other negotiated transaction by NTL Incorporated or any of its Subsidiaries for common stock concluded within the preceding 12 months not triggering a conversion price adjustment, exceeds 10% of the product of 29 35 the current market price per share (determined as set forth below) on the date fixed for the determination of stockholders entitled to receive such distribution times the number of shares of common stock outstanding on such date; (6)payment of an Excess Payment in respect of a tender offer or other negotiated transaction by NTL Incorporated or any of its subsidiaries for common stock, if the aggregate amount of such Excess Payment, together with the aggregate amount of cash distributions made within the preceding 12 months not triggering a conversion price adjustment and all Excess Payments in respect of each tender offer or other negotiated transaction by NTL Incorporated or any of its subsidiaries for common stock concluded within the preceding 12 months not triggering a conversion price adjustment, exceeds 10% of the product of the current market price per share on the expiration of such tender offer times the number of shares of common stock outstanding on such date; and (7)the distribution to substantially all holders of common stock of rights or warrants to subscribe for securities (other than those referred to in clause (3) above). In the event of a distribution to substantially all holders of common stock of rights to subscribe for additional shares of NTL Incorporated's capital stock (other than those referred to in clause (3) above), NTL Incorporated may, instead of making any adjustment in the Conversion Price, make proper provision so that each holder of a convertible note who converts such convertible note after the record date for such distribution and prior to the expiration or redemption of such rights shall be entitled to receive upon such conversion, in addition to shares of common stock, an appropriate number of such rights. No adjustment of the Conversion Price will be made until cumulative adjustments amount to one percent or more of the Conversion Price as last adjusted. If NTL Incorporated reclassifies or changes its outstanding common stock, or consolidates with or merges into or transfers or leases all or substantially all of its assets to any person, or is a party to a merger that reclassifies or changes its outstanding common stock, the convertible notes will become convertible into the kind and amount of securities, cash or other assets which the holders of the convertible notes would have owned immediately after the transaction if the holders had converted the convertible notes immediately before the effective date of the transaction. If NTL Incorporated creates a tracking stock in respect of one or more of its businesses (the "tracked businesses") and sells a portion of that tracking stock then: (i) there will be no adjustment to the Conversion Price; (ii)the convertible notes will remain convertible into the non-tracking stock and no tracking stock will be received upon conversion; and 30 36 (iii)the non-tracking stock into which the convertible notes are convertible will represent a residual interest all businesses other than the tracked businesses plus a residual equity interest in the portion of the tracking stock not sold. The indenture also provides that if rights, warrants or options expire unexercised the Conversion Price shall be readjusted to take into account the actual number of such warrants, rights or options that were exercised. In the indenture, the "current market price" per share of common stock on any date shall be deemed to be the average of the daily market prices for the shorter of: (1)30 consecutive business days ending on the last full trading day on the exchange or market referred to in determining such daily market prices prior to the time of determination (as defined in the indenture) or (2)the period commencing on the date next succeeding the first public announcement of the issuance of such rights or warrants or such distribution through such last full trading day prior to the time of determination. NTL Incorporated will be permitted to make such reductions in the Conversion Price as it, in its discretion, determines to be advisable in order that any stock dividend, subdivision of shares, distribution or rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock made by NTL Incorporated to its stockholders will not be taxable to the recipients. SUBORDINATION OF CONVERTIBLE NOTES TO SENIOR DEBT OF NTL INCORPORATED The convertible notes are subordinate in right of payment to all existing and future Senior Debt of NTL Incorporated. The indenture does not restrict the amount of Senior Debt or other Indebtedness of NTL Incorporated or any Subsidiary of NTL Incorporated. The payment by NTL Incorporated of the principal of, interest on or any other amounts due on the convertible notes is subordinated in right of payment to the prior payment in full of all Senior Debt of NTL Incorporated. No payment by NTL Incorporated on account of principal of, redemption of, interest on or any other amounts due on the convertible notes, including, without limitation, any payments on the Change of Control Offer, and no redemption, purchase or other acquisition of the convertible notes may be made unless (1)full payment of amounts then due on all Senior Debt have been made or duly provided for pursuant to the terms of the instrument governing such Senior Debt, and (2)at the time for, or immediately after giving effect to, any such payment, redemption, purchase or other acquisition, there shall not exist under any Senior Debt or any agreement pursuant to which any Senior Debt has been issued, any default which shall not have been cured or waived and 31 37 which shall have resulted in the full amount of such Senior Debt being declared due and payable. In addition, the indenture provides that if any of the holders of any issue of Senior Debt notify (the "Payment Blockage Notice") NTL Incorporated and the trustee that a default has occurred giving the holders of such Senior Debt the right to accelerate the maturity thereof, no payment on account of principal, redemption, interest, liquidated damages, if any, or any other amounts due on the convertible notes and no purchase, redemption or other acquisition of the convertible notes will be made for the period (the "Payment Blockage Period") commencing on the date notice is received and ending on the earlier of (A)the date on which such event of default shall have been cured or waived or (B) 180 days from the date notice is received. Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing and known to the person giving such notice at the time of such notice on the same issue of Senior Debt may be given during any period of 360 consecutive days unless such event of default or such other events of default have been cured or waived for a period of not less than 90 consecutive days. No new Payment Blockage Period may be commenced by the holders of Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Period have been cured or waived. Upon any distribution of its assets in connection with any dissolution, winding-up, liquidation or reorganization of NTL Incorporated or acceleration of the principal amount due on the convertible notes because of an Event of Default, all Senior Debt must be paid in full before the holders of the convertible notes are entitled to any payments whatsoever. As a result of these subordination provisions, in the event of NTL Incorporated's insolvency, holders of the convertible notes may recover ratably less than general creditors of NTL Incorporated. If payment of the convertible notes is accelerated because of an Event of Default, NTL Incorporated or the trustee shall promptly notify the holders of Senior Debt or the trustee(s) for such Senior Debt of the acceleration. NTL Incorporated may not pay the convertible notes until five days after such holders or trustee(s) of Senior Debt receive notice of such acceleration and, thereafter, may pay the convertible notes only if the subordination provisions of the Indenture otherwise permit payment at that time. The convertible notes are joint and several obligations of NTL Incorporated and NTL Communications exclusively. Since the operations of NTL Incorporated and NTL Communications are conducted through their Subsidiaries, the cash flow and the consequent ability to service debt, including the convertible notes, of NTL Incorporated and NTL Communications, are dependent upon the earnings of their Subsidiaries and 32 38 the distribution of those earnings to, or upon loans or other payments of funds by those Subsidiaries to, NTL Incorporated and NTL Communications. The payment of dividends and the making of loans and advances to NTL by their Subsidiaries may be subject to statutory or contractual restrictions, are dependent upon the earnings of those Subsidiaries and are subject to various business considerations. Any right of NTL Incorporated or NTL Communications to receive assets of any of its Subsidiaries upon their liquidation or reorganization (and the consequent right of the holders of the convertible notes to participate in those assets) will be effectively subordinated to the claims of that Subsidiary's creditors (including trade creditors), except to the extent that the NTL Incorporated or NTL Communications is itself recognized as a creditor of such Subsidiary, in which case the claims of NTL Incorporated or NTL Communications would still be subordinate to any security interests in the assets of such Subsidiary and any indebtedness of such subsidiary senior to that held by NTL Incorporated or NTL Communications. On March 31, 2001, NTL Incorporated had no Senior Debt outstanding. The obligations of NTL Incorporated under the convertible notes is effectively subordinated to all existing and future liabilities of its subsidiaries, including trade payables, and subordinated liabilities of NTL Communications. The convertible notes are senior debts of NTL Communications. The obligations of NTL Communications under the convertible notes will be effectively senior to all existing and future liabilities of NTL Incorporated, including its Senior Debt, pari passu with all existing senior debt of NTL Communications, senior to all existing and future subordinated debt of NTL Communications and effectively subordinated to all existing and future liabilities, including trade payables, of subsidiaries of NTL Communications. Any claim against NTL Communications under the convertible notes will not have recourse to the subsidiaries of NTL Incorporated that are not subsidiaries of NTL Communications. The indenture does not limit the amount of additional indebtedness, including Senior Debt, which NTL Incorporated or NTL Communications can create, incur, assume or guarantee, nor will the indenture limit the amount of indebtedness and other liabilities which any Subsidiary of NTL Incorporated or NTL Communications can create, incur, assume or guarantee. In the event that, notwithstanding the foregoing, the trustee or any holder of convertible notes receives any payment or distribution of assets of NTL Incorporated of any kind in contravention of any of the terms of the indenture, whether in cash, property or securities, including, without limitation by way of set-off or otherwise, in respect of the convertible notes before all Senior Debt is paid in full, then such payment or distribution will be held by the recipient in trust for the benefit of holders of Senior Debt, and will be immediately paid over or delivered to the holders of Senior Debt or their representative or representatives to the extent necessary to make payment in full of all Senior Debt remaining unpaid, after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of Senior Debt. 33 39 MERGER, CONSOLIDATION OR SALE OF ASSETS The indenture provides that neither NTL Incorporated nor NTL Communications may consolidate or merge with or into (whether or not NTL Incorporated or NTL Communications, as the case may be, is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to another corporation, person or entity unless: (1)NTL Incorporated or NTL Communications, as the case may be, is the surviving corporation or the entity or the person formed by or surviving any such consolidation or merger (if other than NTL Incorporated or NTL Communications, as the case may be) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda, the Cayman Islands or of the United States, any state thereof or the District of Columbia; (2)the entity or person formed by or surviving any such consolidation or merger (if other than NTL Incorporated or NTL Communications, as the case may be) or the entity or person to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made assumes all the Obligations (including the due and punctual payment of Additional Amounts if the surviving corporation is a corporation organized or existing under the laws of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands) of NTL Incorporated or NTL Communications, as the case may be, under the convertible notes and the indenture, pursuant to a supplemental indenture in a form reasonably satisfactory to the trustee; (3)immediately after such transaction no Default or Event of Default exists; (4)NTL Incorporated or NTL Communications, as the case may be, or any entity or person formed by or surviving any such consolidation or merger or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made will have a ratio of Indebtedness to Annualized Pro Forma EBITDA equal to or less than the ratio of Indebtedness to Annualized Pro Forma EBITDA of NTL Incorporated or NTL Communications, as the case may be, immediately preceding the transaction; provided, however, that, if the ratio of Indebtedness to Annualized Pro Forma EBITDA of NTL Incorporated or NTL Communications, as the case may be, immediately preceding such transaction is 6:1 or less, then the ratio of Indebtedness to Annualized Pro Forma EBITDA of NTL Incorporated or NTL Communications, as the case may be, may be 0.5 greater than such ratio immediately preceding such transaction; and (5)such transaction would not result in the loss of any material authorization or Material License of NTL Communications or its Subsidiaries. 34 40 ADDITIONAL AMOUNTS The following provisions of this paragraph will apply only in the event that NTL Incorporated or NTL Communications becomes, or a successor to NTL Incorporated or NTL Communications, as the case may be, is, a corporation organized or existing under the laws of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands. All payments made by NTL Incorporated or NTL Communications, as the case may be, on the convertible notes will be made without deduction or withholding, for or on account of, any and all present or future taxes, duties, assessments, or governmental charges of whatever nature unless the deduction or withholding of such taxes, duties, assessments or governmental charges is then required by law. If any deduction or withholding for or on account of any present or future taxes, assessments or other governmental charges of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands (or any political subdivision or taxing authority thereof or therein) shall at any time be required in respect of any amounts to be paid by NTL Incorporated or NTL Communications under the convertible notes, NTL Incorporated or NTL Communications will pay or cause to be paid such additional amounts ("Additional Amounts") as may be necessary in order that the net amounts received by a holder of a convertible note after such deduction or withholding shall be not less than the amounts specified in such convertible note to which such holder is entitled; provided, however, that neither NTL Incorporated nor NTL Communications shall be required to make any payment of Additional Amounts for or on account of: (a)any tax, assessment or other governmental charge to the extent such tax, assessment or other governmental charge would not have been imposed but for (1)the existence of any present or former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such holder, if such holder is an estate, nominee, trust, partnership or corporation), other than the holding of a convertible note or the receipt of amounts payable in respect of a convertible note and the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands or any political subdivision or taxing authority thereof or therein, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (2)the presentation of a convertible note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder would have been entitled to Additional 35 41 Amounts had the convertible note been presented on the last day of such period of 30 days; (b)any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the holder of a convertible note, or, if different, the beneficial owner of the interest payable on a convertible note, with a timely request of NTL Incorporated or NTL Communications addressed to such holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the taxing jurisdiction of such holder or beneficial owner which is required or imposed by a statute, regulation or administrative practice of the taxing jurisdiction a precondition to exemption from all or part of such tax, assessment or governmental charge; (c)any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge; (d)any tax, assessment or other governmental charge which is collectible otherwise than by withholding from payments of principal amount at maturity, redemption amount, Change of Control Payment, interest with respect to a convertible note or withholding from the proceeds of a sale or exchange of a convertible note; (e)any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal amount at maturity, redemption amount, Change of Control Payment or interest with respect to a convertible note, if such payment can be made, and is in fact made, without such withholding by any other paying agent located inside the United States; (f)any tax, assessment or other governmental charge imposed on a holder that is not the beneficial owner of a convertible note to the extent that the beneficial owner would not have been entitled to the payment of any such Additional Amounts had the beneficial owner directly held such convertible note; or (g)any combination of items (a), (b), (c), (d), (e) and (f) above; nor shall Additional Amounts be paid with respect to any payment of the principal of, or any interest on, any convertible note to any holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor would not have been entitled to any Additional Amounts had such beneficiary or settlor been the holder of such convertible note. All references to interest on the convertible notes in the indenture or the convertible notes shall include any Additional Amounts payable by NTL Incorporated or NTL Communications pursuant to this paragraph. 36 42 REPORTS Whether or not required by the rules and regulations of the Commission, so long as any convertible notes are outstanding, NTL Incorporated and NTL Communications will file with the Commission and furnish to the holders of the convertible notes all quarterly and annual financial information required to be contained in a filing with the Commission on Forms 10-Q and 10-K (or the equivalent thereof under the Exchange Act for foreign private issuers in the event that NTL Incorporated or NTL Communications becomes a corporation organized under the laws of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands), including a "Management's Discussion and Analysis of Results of Operations and Financial Condition" and with respect to the annual information only, a report thereon by NTL Incorporated's and NTL Communications' certified independent accountants, in each case, as required by the rules and regulations of the Commission as in effect on the Issuance Date. Neither NTL Incorporated nor NTL Communications publishes unconsolidated financial reports. EVENTS OF DEFAULT AND REMEDIES The indenture provides that each of the following constitutes an Event of Default: (1)default for 30 days in the payment when due of interest (and Additional Amounts, if applicable) on the convertible notes; (2)default in payment when due of principal on the convertible notes; (3)failure by NTL Incorporated or NTL Communications to comply with the provisions described under "-- Repurchase at the Option of Holders"; (4)failure by NTL Incorporated or NTL Communications, following 60 days after notice, to comply with certain other covenants and agreements contained in the indenture or the convertible notes; (5)default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by NTL Communications or any of its Restricted Subsidiaries (or the payment of which is guaranteed by NTL Communications or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Issuance Date, which default (a)is caused by a failure to pay when due principal or interest on such Indebtedness within the grace period provided in such Indebtedness (which failure continues beyond any applicable grace period) (a "Payment Default") or (b)results in the acceleration of such Indebtedness prior to its express maturity and in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the 37 43 maturity of which has been so accelerated, aggregates $10 million or more; (6)failure by NTL Communications or any Restricted Subsidiary of NTL Communications to pay final judgments (other than any judgment as to which a reputable insurance company has accepted full liability) aggregating in excess of $5 million, which judgments are not stayed within 60 days after their entry; (7)certain events of bankruptcy or insolvency with respect to NTL Communications or any of its Material Subsidiaries; and (8)the revocation of a Material License. If any Event of Default occurs and is continuing, the trustee or the holders of at least 25% in principal amount of the then outstanding convertible notes may declare all the convertible notes to be due and payable immediately, subject to the provisions limiting payment described in "-- Subordination of Convertible Notes to Senior Debt of NTL Incorporated." Notwithstanding the above, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to NTL Communications or any Material Subsidiary, all outstanding convertible notes will become due and payable without further action or notice. Holders of the convertible notes may not enforce the indenture or the convertible notes except as provided in the indenture. Subject to some limitations, holders of a majority in principal amount of the then outstanding convertible notes may direct the Trustee in its exercise of any trust or power. The trustee may withhold from holders of the convertible notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or liquidated damages, if any) if it determines that withholding notice is in their interest. The holders of a majority in aggregate principal amount of the convertible notes then outstanding by notice to the trustee may on behalf of the holders of all of the convertible notes waive any existing Default or Event of Default and its consequences under the indenture except a continuing Default or Event of Default in the payment of interest on, or the principal of, the convertible notes. NTL Incorporated and NTL Communications are required to deliver to the trustee annually a statement regarding compliance with the indenture, and NTL Incorporated and NTL Communications are required, upon becoming aware of any Default or Event of Default, to deliver to the trustee a statement specifying such Default or Event of Default. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS No director, officer, employee, incorporator or shareholder of NTL Incorporated or NTL Communications, in their respective capacities, shall have any liability for any Obligations of NTL Incorporated or NTL Communications under the convertible notes or the indenture or for any claim based on, in respect of, or by reason of, such Obligations or their creation. Each holder of the convertible notes by accepting a 38 44 convertible note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the convertible notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy. BOOK-ENTRY, DELIVERY AND FORM The convertible notes sold to qualified institutional buyers were originally issued in the form of one or more Global Notes. The Global Notes were deposited with or on behalf of, the Depository Trust Company, or DTC, and registered in the name of DTC or its nominee. Except as set forth below, the Global Notes may be transferred, in whole and not in part, only to DTC or another nominee of DTC. Investors may hold their beneficial interests in the Global Notes directly through DTC if they are participants in such system or indirectly through organizations that are participants in such system such as Euroclear and Clearstream. DTC is a limited purpose trust company that was created to hold securities for its participating organizations and to facilitate the clearance and settlement of transactions in such securities between participants through electronic book-entry changes in accounts of its participants. DTC's participants include securities brokers and dealers (including the initial purchasers), banks and trust companies, clearing corporations and certain other organizations. Access to DTC's system is also available to indirect participants, which include other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. Persons who are not participants may beneficially own securities held by or on behalf of DTC only through DTC's participants or DTC's indirect participants. We expect that pursuant to procedures established by DTC ownership of the convertible notes evidenced by the Global Notes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to the interests of DTC's participants), DTC's participants and DTC's indirect participants. Prospective purchasers are advised that the laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer convertible notes evidenced by the Global Notes will be limited to such extent. Persons who beneficially own securities held by or on behalf of DTC through Euroclear or Clearstream will be subject to the procedures of such participant. We understand as follows with respect to Euroclear and Clearstream: Euroclear and Clearstream each hold securities for their account holders and facilitate the clearance and settlement of securities transactions by electronic book-entry transfer between their account holders, thereby eliminating the need for physical movements of certificates and any risk from lack of simultaneous transfers of securities. Euroclear and Clearstream provide various services including safekeeping, administrations clearance and settlement of internationally traded securities and securities lending and borrowing. Euroclear and Clearstream can settle securities transactions in any of more than 30 currencies, including Euros. Euroclear and Clearstream also deal with domestic securities markets in 39 45 several countries through established deposits and custodial relationships. Account holders in Euroclear and Clearstream are world-wide financial institutions including underwriters securities brokers and dealers, banks, trust companies and clearing corporations including DTC. An account holder's overall contractual relations with Euroclear and Clearstream are governed by the respective rules and operating procedures of Euroclear and Clearstream and any applicable laws. Euroclear and Clearstream act under such rules and operating procedures only on behalf of its account holders and have no record of or relationship with any persons who are not direct account holders. Investors who hold accounts with Euroclear may acquire, hold and transfer security entitlements with respect to Global Notes against Euroclear and its respective property by book-entry to accounts with Euroclear, which has an account with DTC and subject at all times to the procedures and requirements of Euroclear. Investors who hold accounts with Clearstream may acquire, hold and transfer security entitlements with respect to Global Notes against Clearstream and its respective property by book-entry to accounts with Clearstream, which has an account with DTC and subject at all times to the procedures and requirements of Clearstream. "Security entitlement" means the rights and property interests of an account holder against its securities intermediary under applicable law in or with respect to a security, including any ownership, co-ownership contractual or other rights. So long as DTC or its nominee is the registered owner of any convertible notes, DTC or its nominee will be considered the sole holder under the indenture of any convertible notes evidenced by the Global Notes. Beneficial owners of convertible notes evidenced by the Global Notes will not be considered the owners or holders thereof under the indenture for any purpose including with respect to the giving of any directions, instructions or approvals to the trustee thereunder. Neither NTL Incorporated, NTL Communications nor the trustee will have any responsibility or liability for any aspect of the records of DTC or for maintaining, supervising or reviewing any records of DTC relating to the convertible notes. Payments in respect of the principal of, interest and liquidated damages, if any, on any convertible notes registered in the name of DTC or its nominee on the applicable record date will be payable by the trustee to or at the direction of the DTC or its nominee in its capacity as the registered holder under the indenture. Under the terms of the indenture, NTL Incorporated, NTL Communications and the trustee may treat the persons in whose names convertible notes, including the Global Notes are registered as the owners thereof for the purpose of receiving such payments. Consequently, neither NTL Incorporated, NTL Communications nor the trustee has or will have any responsibility or liability for the payment of such amounts to beneficial owners of convertible notes (including principal, interest and liquidated damages, if any). We believe, however, that it is currently the policy of DTC to immediately credit the accounts of the relevant participants with such payments, in amounts proportionate to their respective holdings of beneficial interests in the relevant security as shown on the records of DTC. Payments by DTC's direct participants and DTC's indirect participants to the beneficial owners of convertible notes will be governed by standing instructions 40 46 and customary practice and will be the responsibility of DTC's direct participants or DTC's indirect participants. TRANSFER AND EXCHANGE A holder may transfer or exchange convertible notes in accordance with the indenture. The registrar and the trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents and NTL Incorporated or NTL Communications may require a holder to pay any taxes and fees required by law or permitted by the indenture. Neither NTL Incorporated nor NTL Communications is required to transfer or exchange any convertible note selected for redemption. Also, neither NTL Incorporated nor NTL Communications is required to transfer or exchange any convertible note for a period of 15 days before a selection of convertible notes to be redeemed. The registered holder of a convertible note will be treated as the owner of it for all purposes. UNCLAIMED MONEY, PRESCRIPTION If money deposited with the trustee or paying agent for the payment of principal or interest remains unclaimed for two years, the trustee and the paying agent shall pay the money back to NTL Incorporated or NTL Communications at its written request. After that, holders of convertible notes entitled to the money must look to NTL Incorporated or NTL Communications for payment unless an abandoned property law designates another person and all liability of the trustee and such paying agent shall cease. Other than as set forth in this paragraph, the indenture does not provide for any prescription period for the payment of interest and principal on the convertible notes. AMENDMENT, SUPPLEMENT AND WAIVER Except as provided in the next two succeeding paragraphs, the indenture or the convertible notes may be amended or supplemented with the consent of the holders of at least a majority in principal amount of the then outstanding convertible notes (including consents obtained in connection with a tender offer or exchange offer for convertible notes), and any existing default or compliance with any provision of the indenture or the convertible notes may be waived with the consent of the holders of a majority in principal amount of the then outstanding convertible notes (including consents obtained in connection with a tender offer or exchange offer for convertible notes). Without the consent of each holder affected, an amendment or waiver may not (with respect to any convertible notes held by a nonconsenting holder of convertible notes): (1)reduce the principal amount of convertible notes whose holders must consent to an amendment, supplement or wavier, 41 47 (2)reduce the principal of or change the fixed maturity of any convertible note or alter the provisions with respect to the redemption of the convertible notes, (3)reduce the rate of or change the time for payment of interest on any convertible note, (4)waive a default in the payment of principal of or interest on any convertible notes (except a rescission of acceleration of the convertible notes by the holders of at least a majority in aggregate principal amount of the convertible notes and a waiver of the payment default that resulted from such acceleration), (5)make any convertible note payable in money other than that stated in the convertible notes, (6)make any change in the provisions of the indenture relating to waivers of past Defaults or the rights of holders of convertible notes to receive payments of principal of or interest on the convertible notes, (7)waive a redemption payment with respect to any convertible note, (8)impair the right to convert the convertible notes into common stock of NTL Incorporated (except for adjustments and revisions contemplated by the indenture), (9)modify the conversion or subordination provisions of the indenture in a manner adverse to the holders of the convertible notes or (10)make any change in the foregoing amendment and waiver provisions. Notwithstanding the foregoing, without the consent of any holder of convertible notes, NTL Incorporated, NTL Communications and the trustee may amend or supplement the indenture or the convertible notes to cure any ambiguity, defect or inconsistency, to provide for uncertificated convertible notes in addition to or in place of certificated convertible notes, to provide for the assumption of NTL Incorporated's or NTL Communications' obligations to holders of the convertible notes in the case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the holders of the convertible notes or that does not adversely affect the legal rights under the indenture of any such holder, or to comply with requirements of the Commission in order to maintain the qualification of the indenture under the Trust Indenture Act. NOTICES Any notice or communication to a holder of convertible notes shall be mailed by first-class mail to such holder's address as shown in the register kept by the registrar. If a notice or communication is mailed in the manner provided in the preceding sentence within the time period prescribed, it is duly given, whether or not the addressee receives it. 42 48 CONCERNING THE TRUSTEE The indenture contains certain limitations on the rights of the trustee, should it become a creditor of NTL Incorporated or NTL Communications, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue or resign. The holders of a majority in principal amount of the then outstanding convertible notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee, subject to certain exceptions. The indenture provides that, in case an Event of Default shall occur (which shall not have been cured), the trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any holder of convertible notes, unless such holder shall have offered to the trustee security and indemnity satisfactory to it against any loss, liability or expense. DEFINITIONS Set forth below are selected defined terms used in the indenture. Reference is made to the indenture and the registration rights agreement for a full disclosure of all such terms, as well as any other capitalized terms used herein for which no definition is provided. "Annualized Pro Forma EBITDA" means, with respect to any person, such person's Pro Forma EBITDA for the latest fiscal quarter multiplied by four. "Cable Business" means (1) any Person directly or indirectly operating, or owning a license to operate, a cable and/or television and/or telephone and/or telecommunications system or service principally within the United Kingdom and/or Republic of Ireland and (2) any Cable Related Business. "Cable Related Business" means a Person which directly or indirectly owns or provides a service or product used in a Cable Business, including, without limitation, any television programming, production and/or licensing business or any programming guide or telephone directory business or content or software related thereto. "Capital Stock" means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, including, without limitation, partnership interests. "Change of Control" means (1)the sale, lease or transfer of all or substantially all of the assets of NTL Incorporated or NTL Communications to any "Person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to either of the foregoing, including any group 43 49 acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act) (other than any Permitted Holder), (2)the approval by the requisite stockholders of NTL Incorporated or NTL Communications of a plan of liquidation or dissolution of NTL Incorporated or NTL Communications, (3)any "Person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act or any successor provision to either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any Permitted Holder, becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of all classes of the voting stock of NTL Incorporated or NTL Communications and/or warrants or options to acquire such voting stock, calculated on a fully diluted basis, unless, as a result of such transaction, the ultimate direct or indirect ownership of NTL Incorporated or NTL Communications is substantially the same immediately after such transaction as it was immediately prior to such transaction, or (4)during any period of two consecutive years, individuals who at the beginning of such period constituted NTL Incorporated or NTL Communications Board of Directors (together with any new directors whose election or appointment by such board or whose nomination for election by the shareholders of NTL Incorporated or NTL Communications was approved by a vote of a majority of the directors 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 NTL Incorporated's or NTL Communications' Board of Directors then in office. "Consolidated Interest Expense" means, for any person, for any period, the amount of interest in respect of Indebtedness (including amortization of original issue discount, amortization of debt issuance costs, and noncash interest payments on any Indebtedness and the interest portion of any deferred payment obligation and after taking into account the effect of elections made under any Interest Rate Agreement, however denominated, with respect to such Indebtedness), the amount of Redeemable Dividends, Restricted Subsidiary Preferred Stock Dividends and the interest component of rentals in respect of any capital lease obligation paid, in each case whether accrued or scheduled to be paid or accrued by such person and its Subsidiaries (other than Non-Restricted Subsidiaries) during such period to the extent such amounts were deducted in computing Consolidated Net Income, determined on a consolidated basis in accordance with GAAP. For purposes of this definition, interest on a capital lease obligation shall be deemed to accrue at an interest rate reasonably determined by such person to be the rate of interest implicit in such capital lease obligation in accordance with GAAP consistently applied. 44 50 "Consolidated Net Income" means, with respect to any person for any period, the aggregate of the Net Income of such person and its Subsidiaries (other than Non-Restricted Subsidiaries) for such period, on a consolidated basis, determined in accordance with GAAP; provided that (1)the Net Income of any person that is not a Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid to the referent person or a Wholly Owned Subsidiary, (2)the Net Income of any person that is a Subsidiary (other than a Subsidiary of which at least 80% of the Capital Stock having ordinary voting power for the election of directors or other governing body of such Subsidiary is owned by the referent person directly or indirectly through one or more Subsidiaries) shall be included only to the extent of the amount of dividends or distributions paid to the referent person or a Wholly Owned Subsidiary, (3)the Net Income of any person acquired in a pooling of interests transaction for any period prior to the date of such acquisition shall be excluded and (4)the cumulative effect of a change in accounting principles shall be excluded. "Default" means any event that is or, with the passage of time or the giving of notice or both, would be an Event of Default. "Disqualified Stock" means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date on which the convertible notes mature. "EBITDA" means, for any person, for any period, an amount equal to (a) the sum of (1)Consolidated Net Income for such period (exclusive of any gain or loss realized in such period upon an Asset Sale), plus (2)the provision for taxes for such period based on income or profits to the extent such income or profits were included in computing Consolidated Net Income and any provision for taxes utilized in computing net loss under clause (1) hereof, plus (3) Consolidated Interest Expense for such period, plus (4) depreciation for such period on a consolidated basis, plus (5)amortization of intangibles for such period on a consolidated basis, plus 45 51 (6)any other noncash item reducing Consolidated Net Income for such period, minus (b)all noncash items increasing Consolidated Net Income for such period, all for such person and its Subsidiaries determined in accordance with GAAP consistently applied. "Excess Payment" means the excess of (1)the aggregate of the cash and value of other consideration paid by NTL Incorporated or any of its Subsidiaries with respect to shares acquired in a tender offer or other negotiated transaction over (2)the market value of such acquired shares after giving effect to the completion of a tender offer or other negotiated transaction. "Exchange Rate Contract" means, with respect to any person, any currency swap agreements, forward exchange rate agreements, foreign currency futures or options, exchange rate collar agreements, exchange rate insurance and other agreements or arrangements, or combination thereof, designed to provide protection against fluctuations in currency exchange rates. An Exchange Rate Contract may also include an Interest Rate Agreement. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession, which are in effect on the Issuance Date. "Guarantee" means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness. "Indebtedness" means, with respect to any person, any indebtedness of such person, whether or not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or representing the balance deferred and unpaid of the purchase price of any property (including pursuant to capital leases and sale-and-leaseback transactions) or representing any hedging obligations under an Exchange Rate Contract or an Interest Rate Agreement, except any such balance that constitutes an accrued expense or trade payable if and to the extent any of the foregoing indebtedness (other than obligations under an Exchange Rate Contract or an Interest Rate Agreement) would appear as a liability upon a balance sheet of such person prepared in accordance with GAAP, and also include to the extent not otherwise included, the Guarantee of items which would be included within this definition. 46 52 "Interest Rate Agreement" means, for any person, any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement designed to protect the party indicated therein against fluctuations in interest rates. "Issuance Date" means the date on which the convertible notes are first authenticated and issued. "License" means any license issued or awarded pursuant to Broadcasting Act 1990, the Cable and Broadcasting Act 1984, the Telecommunications Act 1984 or the Wireless Telegraphy Act 1948 (in each case, as such Acts may, from time to time, be amended, modified or re-enacted) (or equivalent statutes of any jurisdiction) to operate or own a Cable Business. "Material License" means a license held by NTL Communications or any its Subsidiaries, which License at the time of determination covers a number of Net Households which equals or exceeds 5% of the aggregate number of Net Households covered by all of the Licenses held by NTL Communications and its Subsidiaries at such time. "Material Subsidiary" means (1)NTL UK Group, Inc. (formerly known as OCOM Sub II, Inc.), NTL Group Limited, CableTel Surrey, CableTel Cardiff Limited, CableTel Glasgow, CableTel Newport and CableTel Kirklees and (2)any other Subsidiary of NTL Communications which is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act (as such Regulation is in effect on the date of the indenture). "Net Households" means the product of (1) the number of households covered by a License in the United Kingdom and (2) the percentage of the entity holding such License which is owned directly or indirectly by NTL Communications. "Net Income" means, with respect to any person for a specific period, the net income (loss) of such person during such period, determined in accordance with GAAP, excluding, however, any gain (but not loss) during such period, together with any related provision for taxes on such gain (but not loss), realized during such period in connection with any Asset Sale (as defined in the indenture) (including, without limitation, dispositions pursuant to sale-and-leaseback transactions), and excluding any extraordinary gain (but not loss) during such period, together with any related provision for taxes on such extraordinary gain (but not loss). "Non-Restricted Subsidiary" means (A) a Subsidiary of NTL Incorporated or NTL Communications that: (1)at the time of its designation by the NTL Incorporated or NTL Communications Board of Directors, as the case may be, as a Non-Restricted Subsidiary has not acquired any assets, at any previous time, directly or 47 53 indirectly from NTL Incorporated or NTL Communications, as the case may be, or any of their respective Restricted Subsidiaries, (2)has no indebtedness other than non-recourse debt, and (3)at the time of such designation, after giving pro forma effect to such designation, the ratio of Indebtedness to Annualized Pro Forma EBITDA of NTL Incorporated or NTL Communications, as the case may be, is equal to or less than the ratio of Indebtedness to Annualized Pro Forma EBITDA of NTL Incorporated or NTL Communications, as the case may be, immediately preceding such designation, provided however, that if the ratio of Indebtedness to Annualized Pro Forma EBITDA of NTL Incorporated or NTL Communications, as the case may be, immediately preceding such designation is 6:1 or less, then the ratio of Indebtedness to Annualized Pro Forma EBITDA of NTL Incorporated or NTL Communications, as the case may be, may be 0.5 greater than such ratio immediately preceding such designation, or (B) any Subsidiary of NTL Incorporated or NTL Communications that: (1)has been acquired or capitalized out of or by equity interests (other than Disqualified Stock) of NTL Incorporated or NTL Communications, as the case may be, or Capital Stock sale proceeds therefrom, (2)has no Indebtedness other than non-recourse debt and (3)is designated as a Non-Restricted Subsidiary by the NTL Incorporated or NTL Communications Board of Directors, as the case may be, or is merged, amalgamated or consolidated with or into, or its assets or capital stock is to be transferred to, a Non-Restricted Subsidiary, or (C) any Subsidiary of a Non-Restricted Subsidiary. "Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Permitted Designee" means (1)a spouse or a child of a Permitted Holder, (2)trusts for the benefit of a Permitted Holder or a spouse or child of a Permitted Holder, (3)in the event of the death or incompetence of a Permitted Holder, his estate, heirs, executor, administrator, committee or other personal representative or (4)any person so long as a Permitted Holder owns at least 50% of the voting power of all classes of the voting stock of such person. "Permitted Holders" means George S. Blumenthal, J. Barclay Knapp and their Permitted Designees. 48 54 "Pro Forma EBITDA" means for any Person, for any period, the EBITDA of such Person as determined on a consolidated basis in accordance with GAAP consistently applied after giving effect to the following: (1)if, during or after such period, such Person or any of its Subsidiaries shall have made any Asset Sale (as defined in the indenture), Pro Forma EBITDA of such Person and its Subsidiaries for such period shall be reduced by an amount equal to the Pro Forma EBITDA (if positive) directly attributable to the assets which are the subject of such Asset Sale for the period or increased by an amount equal to the Pro Forma EBITDA (if negative) directly attributable thereto for such period and (2)if, during or after such period, such Person or any of its Subsidiaries completes an acquisition of any Person or business which immediately after such acquisition is a Subsidiary of such Person or whose assets are held directly by such Person or a Subsidiary of such Person, Pro Forma EBITDA shall be computed so as to give pro forma effect to the acquisition of such Person or business; and provided further that, with respect to NTL Incorporated and NTL Communications, all of the foregoing references to "Subsidiary" or "Subsidiaries" shall be deemed to refer only to a "Restricted Subsidiary" or "Restricted Subsidiaries" of NTL Incorporated or NTL Communications, as the case may be. "Redeemable Dividend" means, for any dividend with regard to Disqualified Stock, the quotient of the dividend divided by the difference between one and the maximum statutory federal income tax rate (expressed as a decimal number between 1 and 0) then applicable to the issuer of such Disqualified Stock. "Restricted Subsidiary" means any Subsidiary of NTL Incorporated or NTL Communications, as the case may be, which is not a Non-Restricted Subsidiary. "Restricted Subsidiary Preferred Stock Dividend" means, for any dividend with regard to preferred stock of a Restricted Subsidiary, the quotient of the dividend divided by the difference between one and the maximum statutory federal income tax rate (expressed as a decimal number between 1 and 0) then applicable to the issuer of such preferred stock. "Senior Debt" means the principal of, interest on and other amounts due on (1)Indebtedness of NTL Incorporated, whether outstanding on the date of the indenture or thereafter created, incurred, assumed or guaranteed by NTL Incorporated, for money borrowed from banks or other financial institutions; (2)Indebtedness of NTL Incorporated, whether outstanding on the date of the indenture or thereafter created, incurred, assumed or guaranteed by NTL Incorporated; and 49 55 (3)Indebtedness of NTL Incorporated under interest rate swaps, caps or similar hedging agreements and foreign exchange contracts, currency swaps or similar agreements; unless, in the instrument creating or evidencing or pursuant to which Indebtedness under (1) or (2) is outstanding, it is expressly provided that such Indebtedness is not senior in right of payment to the convertible notes. Senior Debt includes, with respect to the obligations described in clauses (1) and (2) above, interest accruing, pursuant to the terms of such Senior Debt, on or after the filing of any petition in bankruptcy or for reorganization relating to NTL Incorporated, whether or not post-filing interest is allowed in such proceeding, at the rate specified in the instrument governing the relevant obligation. Notwithstanding anything to the contrary in the foregoing, Senior Debt shall not include: (a)Indebtedness of or amounts owed by NTL Incorporated for compensation to employees, or for goods or materials purchased in the ordinary course of business, or for services; or (b)Indebtedness of NTL Incorporated to a Subsidiary of NTL Incorporated. "Subsidiary" means any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by any person or one or more of the other Subsidiaries of that person or a combination thereof. "Wholly Owned Subsidiary" means, at any time, a Restricted Subsidiary all of the Capital Stock of which (except directors' qualifying shares) is at the time owned directly or indirectly by NTL Incorporated or NTL Communications. 50 56 REGISTRATION RIGHTS The following summary of selected provisions of the registration rights agreement is subject to, and is qualified in its entirety by reference to, all the provisions of the registration rights agreement, which is filed as an exhibit into the registration statement of which this prospectus forms a part. We entered into the registration rights agreement pursuant to which we agreed, at our expense, for the benefit of the holders of the offered securities to file with the Commission the registration statement covering resale of the offered securities, by September 27, 2001. We will use our best efforts to cause the registration statement to become effective as promptly as is practicable, but in any event by January 25, 2002, and to keep the registration statement effective until the earlier of (1) the sale pursuant to the registration statement of all the offered securities registered thereunder and (2) the expiration of the holding period applicable to such offered securities held by persons that are not affiliates of NTL Incorporated or NTL Communications under Rule 144(k) under the Securities Act, or any successor provision, subject to certain permitted exceptions. We will be permitted to suspend the use of this prospectus under some circumstances relating to pending corporate developments, public filings with the Commission and similar events. We have agreed to pay predetermined liquidated damages as described below ("Liquidated Damages") to holders of offered securities if the Registration Statement is not timely filed or made effective or if this prospectus is unavailable for periods in excess of those permitted above. Such Liquidated Damages shall accrue to each holder of convertible notes until such failure to file or become effective or unavailability is cured at a rate per annum equal to $0.05 per week per $1,000 aggregate principal amount of the convertible notes held by such holder for the first 90-day period after the occurrence of such event. The amount of the Liquidated Damages will increase by an additional $0.05 per week per $1,000 aggregate principal amount of the convertible notes held by each holder with respect to each subsequent 90-day period until all registration defaults have been cured, up to a maximum amount of Liquidated Damages of $0.50 per week per $1,000 aggregate principal amount of the convertible notes held by each holder. Selling securityholders must complete and deliver to us a notice and questionnaire the form of which was sent to all holders of record known to us, prior to any intended distribution of offered securities pursuant to the registration statement. Holders of offered securities are required to complete and deliver the questionnaire prior to the effectiveness of the registration statement so that such holders may be named as selling securityholders in this prospectus at the time of effectiveness. Upon receipt of such a completed questionnaire, together with such other information as may be reasonably requested by us, from a selling securityholder following the effectiveness of the registration statement, we will, as promptly as practicable upon such receipt, file any amendments to the registration statement or supplements to this prospectus as are necessary to permit such selling securityholder to deliver this prospectus, including any supplements, to purchasers of offered securities, subject to our right to suspend the use of this prospectus as described above. 51 57 UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS This is a general discussion of certain United States federal income tax consequences of the acquisition, ownership, and disposition of the convertible notes by a holder that acquires the convertible notes from Selling Securityholders. We assume in this discussion that you will hold our convertible notes and common stock received on conversion of convertible notes as capital assets (generally, property held for investment). We do not discuss all aspects of U.S. federal taxation that may be important to you in light of your individual investment circumstances, such as special tax rules that would apply to you, for example, if you are a dealer in securities, financial institution, bank, insurance company, tax-exempt organization or partnership. Our discussion is based on current provisions of the Internal Revenue Code of 1986, as amended, Treasury regulations, judicial opinions, published positions of the U.S. Internal Revenue Service and other applicable authorities, all as in effect on the date of this prospectus and all of which are subject to differing interpretations or change, possibly with retroactive effect. We have not sought, and do not intend to seek, any ruling from the Internal Revenue Service with respect to the tax consequences discussed in this prospectus, and there can be no assurance that the Internal Revenue Service will not take a position contrary to the tax consequences discussed below or that any such position taken by the Internal Revenue Service would not be sustained. WE URGE YOU TO CONSULT YOUR TAX ADVISOR ABOUT THE U.S. FEDERAL TAX CONSEQUENCES OF ACQUIRING, HOLDING, AND DISPOSING OF OUR CONVERTIBLE NOTES AND COMMON STOCK, AS WELL AS ANY TAX CONSEQUENCES THAT MAY ARISE UNDER THE LAWS OF ANY FOREIGN, STATE, LOCAL, OR OTHER TAXING JURISDICTION. For purposes of this discussion, a "U.S. person" means any one of the following: - a citizen or resident of the United States, - a corporation, partnership, or other entity created or organized in the United States or under the laws of the United States or of any political subdivision of the United States, - an estate, the income of which is includible in gross income for United States federal income tax purposes regardless of its source, or - a trust, the administration of which is subject to the primary supervision of a U.S. court and that has one or more U.S. persons who have the authority to control all substantial decisions of the trust, or that was in existence on August 20, 1996 and properly elected to continue to be treated as a U.S. person. As used in this summary, a "U.S. holder" means the beneficial owner of a convertible note or common stock that is a U.S. person, and a "non-U.S. holder" means a beneficial owner of a convertible note or common stock that is not a U.S. holder. U.S. HOLDERS INTEREST INCOME. Subject to the Market Discount and Amortizable Bond Premium rules discussed below, payments of interest on convertible notes generally will be taxable to U.S. holders as ordinary interest income at the time such payments are accrued or received (in accordance with the U.S. holder's method of accounting for federal income tax purposes). 52 58 MARKET DISCOUNT. A U.S. holder who purchases a note for an amount less than its stated redemption price at maturity (by more than a statutorily defined de minimis amount) will be subject to market discount rules. Under the market discount rules, gain recognized by a U.S. holder upon the sale or other disposition of notes with market discount will generally be treated as ordinary income to the extent of the market discount accrued during the holding period. The market discount rules also may require a U.S. holder of a note with market discount to defer a portion of any interest expense on any indebtedness incurred or maintained to purchase or carry notes with market discount until such holder disposes of such note in a taxable transaction. Neither of these rules will apply to a U.S. holder who elects to include market discount in income as it accrues for federal income tax purposes. A U.S. holder's tax basis in notes is increased by accrued market discount included in income. AMORTIZABLE BOND PREMIUM. A U.S. holder who purchases a note for an amount greater than its stated redemption price at maturity has amortizable bond premium. A holder of a note with amortizable bond premium may elect to amortize the premium over the remaining term of the note, based on a yield-to-maturity method. A holder electing to amortize bond premium will offset the interest otherwise required to be included in such holder's income during the accrual period. An election to amortize bond premium generally applies to all taxable debt obligations held by the holder during or after the taxable year to which the election applies and may be revoked only with the consent of the IRS. A holder's tax basis in notes is reduced by amortized bond premium. CONVERSION. A U.S. holder will not recognize gain or loss upon conversion of the convertible notes solely into NTL Incorporated common stock (except with respect to cash received in lieu of fractional shares, or any amounts attributable to accrued and unpaid interest on the convertible notes, which will be treated as interest income to the extent not already taken into account). The U.S. holder's basis in the common stock received on conversion will be the same as such holder's adjusted tax basis in the convertible notes at the time of conversion, and the holding period for the common stock received on conversion will include the holding period of the convertible notes that were converted. SALE OR DISPOSITION OF NOTES. Subject to the Market Discount rules discussed above, a U.S. holder will recognize gain or loss upon the sale, redemption or other taxable disposition of the convertible notes in an amount equal to the difference between such holder's adjusted tax basis in the convertible notes and the amount received therefor (other than amounts attributable to accrued and unpaid interest on the convertible notes, which will be treated as interest income to the extent not already taken into account). Such gain or loss generally will be long-term capital gain or loss if the convertible notes were held for more than one year. CONSTRUCTIVE DIVIDEND. The conversion price of the convertible notes is subject to adjustment under certain circumstances. Under Section 305 of the Internal Revenue Code and the Treasury Regulations issued thereunder, adjustments or the failure to make such adjustments to the conversion price of the convertible notes may result in a taxable constructive distribution to U.S. holders of convertible notes, resulting in ordinary income (subject to a possible dividends received deduction in the case of U.S. corporate 53 59 holders) to the extent of our current and accumulated earnings and profits, if any, and to the extent that certain adjustments in the conversion price (particularly an adjustment to reflect a taxable dividend to holders of our common stock) increase the proportionate interest of a U.S. holder of a convertible note convertible into fully diluted common stock, whether or not the holders ever convert the convertible notes. Generally, a U.S. holder's tax basis in a convertible note will be increased by the amount of any such constructive dividend. DISTRIBUTIONS ON COMMON STOCK. We do not expect to make distributions with respect to our common stock. Except as discussed below, the amount of any distributions received by a U.S. holder on shares of our common stock will be treated as follows: - first, as a dividend, taxable as ordinary income, to the extent of our current and accumulated earnings and profits for U.S. federal income tax purposes; - next as a tax-free return of capital to the extent of your tax basis in such common stock; and - thereafter, as capital gain from the sale of such common stock, which capital gain will be long-term if the holding period for the stock is more than one year. Distributions taxable as dividends to U.S. corporate holders will be eligible for the dividends received deduction, subject to various limitations. No assurance can be given that we will have sufficient earnings and profits for federal income tax purposes to cause any distributions to be taxable as dividends. Additionally, the benefits of any dividends received deduction to a corporate stockholder may, in effect, be reduced or eliminated by operation of the so-called "extraordinary dividend" provisions of Section 1059 of the Code. SALES AND OTHER DISPOSITIONS OF COMMON STOCK. A U.S. holder who sells or otherwise disposes of our common stock will generally recognize capital gain or loss equal to the difference between the sum of the amount of cash and fair value of any property received on the sale or other disposition and the adjusted tax basis in the shares sold or disposed. This capital gain or loss will be long-term if the holding period for the common stock sold or disposed is more than one year. NON-U.S. HOLDERS INTEREST INCOME. Subject to the discussion below concerning information reporting and backup withholding, payments of interest on a convertible note to any non-U.S. holder will generally not be subject to U.S. federal income tax or withholding tax, provided that all of the following are true: - the non-U.S. holder does not actually or constructively own 10% or more of the total combined voting power of all classes of our stock; - the non-U.S. holder is not a controlled foreign corporation related to us for U.S. federal income tax purposes; and - the non-U.S. holder certifies, on Form W8-BEN (or other appropriate forms) under penalties of perjury, that it is a non-U.S. holder and provides its name and address. 54 60 Interest paid to a non-U.S. holder that does not qualify for the above exemption from income tax and withholding tax generally will be subject to withholding of U.S. federal income tax at the rate of 30%, unless the non-U.S. holder of the convertible notes provides us or our paying agent, as the case may be, with a properly executed: (1)IRS Form W8-BEN (or other appropriate forms) claiming an exemption from (or reduction in) withholding under the benefit of an applicable income tax treaty; or (2)IRS Form W8-ECI (or other appropriate forms) stating that the interest paid on the convertible notes is not subject to withholding tax because it is effectively connected with the non-U.S. holder's conduct of a trade or business in the United States. If, however, the interest is effectively connected with the conduct of a trade or business in the United States by the non-U.S. holder, the interest will be subject to U.S. federal income tax imposed on net income on the same basis as applies to U.S. persons generally, and, for corporate holders and under certain circumstances, also the branch profits tax. Non-U.S. holders should consult any applicable income tax treaties, which may provide for exemption from (or reduction in) U.S. withholding and other for other rules different from those described above. SALE OR DISPOSITION OF CONVERTIBLE NOTES. A non-U.S. holder generally will not be subject to U.S. federal income tax or withholding tax on any gain realized on the sale or other disposition of a convertible note unless (i) the gain is effectively connected with the conduct of a trade or business within the United States by the non-U.S. holder, (ii) in the case of a non-U.S. holder who is an individual, such holder is present in the United States for a period or periods aggregating 183 days or more during the taxable year of the disposition and certain other conditions are met or (iii) the non-U.S. holder is subject to tax pursuant to the provisions of the Code applicable to certain United States expatriates. Gain derived by a non-U.S. holder from a sale or other disposition of a convertible note that is effectively connected with the conduct of a trade or business within the United States by the non-U.S. holder is generally taxed at the graduated income tax rates that are applicable to U.S. persons. In the case of a non-U.S. holder that is a corporation, such effectively connected income may also be subject to the U.S. branch profits tax. Any individual non-U.S. holder described under clause (ii) of the preceding paragraph will be subject to a flat 30% tax on the gain derived in the disposition, which may be offset by certain U.S. source capital losses recognized within the same taxable year as such disposition. DIVIDENDS. Dividends paid, or deemed paid, to a non-U.S. holder of our common stock generally will be subject to a withholding of U.S. federal income tax at a 30 percent rate or such lower rate as may be specified by an applicable income tax treaty, unless: - the dividend is effectively connected with the conduct of a trade or business of the non-U.S. holder within the United States; or 55 61 - if a tax treaty applies, it is attributable to a U.S. permanent establishment of the non-U.S. holder. In these cases, the dividend will be taxed at ordinary federal income tax rates. If the non-U.S. holder is a corporation, such effectively connected income may also be subject to an additional branch profits tax. A non-U.S. holder may be required to satisfy certain certification requirements in order to claim treaty benefits or otherwise claim a reduction of, or exemption from, the withholding described above. SALES AND OTHER DISPOSITIONS OF COMMON STOCK. A non-U.S. holder generally will not be subject to U.S. federal income tax in respect of any gain recognized on the sale or other taxable disposition of common stock, unless: - the gain is effectively connected with the conduct of a trade or business of the non-U.S. holder within the United States or, if a tax treaty applies, is attributable to a U.S. permanent establishment of the non-U.S. holder; - in the case of a non-U.S. holder who is an individual and holds our common stock as a capital asset, the holder is present in the United States for 183 or more days in the taxable year of the disposition and certain other conditions are met; or - the non-U.S. holder is subject to tax under the provisions of U.S. federal income tax law applicable to certain U.S. expatriates. ESTATE TAXES. Common stock owned or treated as owned by an individual non-U.S. holder at the time of death will be includible in the individual's gross estate for U.S. federal estate tax purposes, unless an applicable treaty provides otherwise, and may be subject to U.S. federal estate tax. INFORMATION REPORTING AND BACKUP WITHHOLDING Generally, we must report annually to the IRS and to each holder the amounts of interest that we paid to that holder, and the amount of tax, if any, that we withheld on the interest. This information may also be made available to the tax authorities of a country in which a non-U.S. holder resides. Under current U.S. Treasury regulations, backup withholding will generally apply to payments to persons that fail to furnish certain required information. Backup withholding generally will not apply to payments made in respect of convertible notes held by a non-U.S. holder, if the holder properly certifies as to non-U.S. status under penalties of perjury or otherwise establishes an exemption. Generally, a non-U.S. holder will provide this information on IRS Form W-8BEN. The payment of proceeds from the disposition of convertible notes or common stock to or through the U.S. office of any broker, U.S. or foreign, will be subject to information reporting (and possible backup withholding unless the owner properly certifies as to non-U.S. status under penalty of perjury or otherwise establishes an exemption). In the case of the payment of proceeds from the disposition of convertible notes or common stock to or through a non-U.S. office of a U.S. broker, or foreign brokers with certain types of relationships to the United States, information reporting, but not backup withholding, will be required on the payment, unless the broker has 56 62 documentary evidence in its files that the owner is a non-U.S. holder and certain other conditions are met, or the holder otherwise establishes an exemption. Backup withholding is not an additional tax. Any amounts we withhold under the backup withholding rules will be allowed as a refund or credit against such non-U.S. holder's federal income tax liability, provided that the requisite procedures are followed and certain information is provided to the IRS. The preceding discussion of certain United States federal income tax consequences is for general information only and is not tax advice. Accordingly, each investor should consult its own tax adviser as to particular tax consequences to it of acquiring, holding, and disposing of the convertible notes and our common stock, including the applicability and effect of any state, local or foreign tax laws, and of any proposed changes in applicable laws. 57 63 SELLING SECURITYHOLDERS The following table sets forth, as of July 19, 2001 the respective principal amount of convertible notes beneficially owned and offered hereby by each selling securityholder, the common stock owned by each selling securityholder and the common stock issuable upon conversion of such convertible notes, which may be sold from time to time by such selling securityholder pursuant to this prospectus. Such information has been obtained from the selling securityholders. The shares of common stock to be registered by this prospectus are calculated on an "as converted" basis using the conversion rate in effect on the date of this prospectus of 30.5550 shares of common stock per $1,000 principal amount of convertible notes.
PRINCIPAL AMOUNT OF CONVERTIBLE NOTES PERCENT OF TOTAL BENEFICIALLY PRINCIPAL AMOUNT OF COMMON STOCK COMMON STOCK OWNED AND OFFERED OUTSTANDING OWNED PRIOR TO TO BE REGISTERED BY SELLING SECURITY HOLDERS BY THIS PROSPECTUS CONVERTIBLE NOTES ORIGINAL OFFERING THIS PROSPECTUS - ------------------------ ------------------- ------------------- ------------------ ------------------- AIG SoundShore Holdings Ltd..... 3,926,000 * -- 119,958.45 AIG SoundShore Opportunity Holding Fund Ltd.............. 231,000 * -- 7,058.18 AIG SoundShore Strategic Holding Fund Ltd...................... 1,343,000 * -- 41,035.20 American Samoa Government....... 68,000 * -- 2,077.73 Anegada Fund, Ltd............... 604,800 * -- 18,479.59 Argent Classic Convertible Arbitrage Fund (Bermuda) Ltd........................... 4,500,000 * -- 137,496.95 Argent Classic Convertible Arbitrage Fund L.P............ 2,700,000 * -- 82,498.17 Argent Convertible Arbitrage Fund Ltd...................... 1,000,000 * -- 30,554.88 Associated Electric & Gas Insurance Services Limited.... 1,700,000 * -- 51,943.29 Bear, Sterns & Co. Inc.......... 7,500,000 * -- 229,161.57 BNP CooperNeff Convertible Strategies Fund, L.P.......... 4,057,000 * -- 123,961.13 BNP Paribas Equity Strategies, SNC........................... 24,343,000 2.12% -- 743,797.36 BP Amoco PLC Master Trust....... 1,426,000 * -- 43,571.25 Calamos Market Neutral Fund..... 3,150,000 * -- 96,247.86 Chrysler Corporation Master Retirement Trust(1)........... 6,790,000 * -- 207,467.61 CIBC World Markets.............. 9,000,000 * -- 274,993.89 Consulting Group Capital Markets Funds......................... 350,000 * -- 10,694.21 Deam Convertible Arbitrage FD... 4,000,000 * -- 122,219.51 Deeprock & Co .................. 2,000,000 * -- 61,109.75 Delta Air Lines Master Trust(2)...................... 1,685,000 * -- 51,484.97 Delta Air Lines Master Trust -- High Income................... 795,000 * -- 24,291.13
58 64
PRINCIPAL AMOUNT OF CONVERTIBLE NOTES PERCENT OF TOTAL BENEFICIALLY PRINCIPAL AMOUNT OF COMMON STOCK COMMON STOCK OWNED AND OFFERED OUTSTANDING OWNED PRIOR TO TO BE REGISTERED BY SELLING SECURITY HOLDERS BY THIS PROSPECTUS CONVERTIBLE NOTES ORIGINAL OFFERING THIS PROSPECTUS - ------------------------ ------------------- ------------------- ------------------ ------------------- Delta Pilots D & S Trust(3)..... 880,000 * -- 26,888.29 First Union International Capital Markets Inc........... 27,000,000 2.35% -- 824,981.67 First Union Securities Inc...... 18,500,000 1.61% -- 565,265.22 GM Employee Global Grp Pen Tr (Abs Return Portfolio)........ 2,000,000 * -- 61,109.75 GSPP Portfolio, Ltd............. 688,800 * -- 21,046.20 HBK Master Fund L.P.(4)......... 80,200.00 6.97% 212,359 2,450,501.10 Hotel Union & Hotel Industry of Hawaii........................ 711,000 * -- 21,724.52 Hourglass Fund, L.P............. 3,000,000 * -- 91,664.63 IBM Retirement Plan -- High Income........................ 545,000 * -- 16,652.41 James Campbell Corporation...... 600,000 * -- 18,332.93 Jefferies & Company Inc......... 15,000 * -- 458.32 JMG Capital Partners, L.P.(5)... 26,000,000 2.26% -- 794,426.79 JMG Triton Offshore Fund Ltd.(6)....................... 39,000,000 3.91% -- 1,191,640.19 Lipper Convertible Series II, L.P.(7)....................... 1,350,000 * -- 41,249.08 Lipper Convertibles (Class B)... 675,000 * -- 20,624.54 Lipper Convertibles L.P.(8)..... 21,600,000 1.88% -- 659,985.33 Lipper Offshore Convertibles #2............................ 675,000 * -- 20,624.54 Lipper Offshore Convertibles, L.P.(9)....................... 2,700,000 * -- 82,498.17 Lydian Overseas Partners Master Fund.......................... 10,000,000 * -- 305,548.77 Morgan Stanley & Co.(10)........ 35,000,000 3.04% -- 1,069,420.68 Motion Picture Industry Health Plan -- Active Member Fund(11)...................... 625,000 * -- 19,096.80 Motion Picture Industry Health Plan -- Retiree Member Fund(12)...................... 265,000 * -- 8,097.04 OCM Convertible Trust(13)....... 3,210,000 * -- 98,081.15 Partner Reinsurance Company(14)................... 1,045,000 * -- 31,929.85 People Benefit Life Insurance Company....................... 2,000,000 * -- 61,109.75 Peoples Benefit Life Insurance Company TEAMSTERS............. 10,000,000 * -- 305,548.77 Plejades Investment Partners.... 249,600 * -- 7,626.50 San Diego County Employee's Retirement Association........ 410,000 * -- 12,527.50 SG Cowen Securities............. 5,000,000 * -- 152,774.38
59 65
PRINCIPAL AMOUNT OF CONVERTIBLE NOTES PERCENT OF TOTAL BENEFICIALLY PRINCIPAL AMOUNT OF COMMON STOCK COMMON STOCK OWNED AND OFFERED OUTSTANDING OWNED PRIOR TO TO BE REGISTERED BY SELLING SECURITY HOLDERS BY THIS PROSPECTUS CONVERTIBLE NOTES ORIGINAL OFFERING THIS PROSPECTUS - ------------------------ ------------------- ------------------- ------------------ ------------------- St. Albans Partners Ltd. ....... 11,000,000 * -- 336,103.64 State of Connecticut Combined Investment Funds(15).......... 7,125,000 * -- 217,703.50 State Employees' Retirement Fund of the State of Delaware(16).................. 2,695,000 * -- 82,345.39 The Cuttyhunk Fund Limited...... 2,091,200 * -- 63,896.36 The Estate of James Campbell.... 450,000 * -- 13,749.69 Tonga Partners L.P.............. 2,365,600 * -- 72,280.62 TQA Master Fund Ltd............. 4,000,000 * -- 122,219.51 TQA Master Plus Fund, Ltd....... 4,000,000 * -- 122,219.51 Vanguard Convertible Securities Fund, Inc.(17)................ 6,680,000 * -- 204,106.58 Viacom Inc. Pension Plan Master Trust......................... 80,000 * -- 2,444.39 White River Securities L.L.C.... 7,500,000 * -- 229,161.57 Zurich Institutional Benchmarks.................... 400,000 * -- 12,221.95
- --------------- (1)Also owns 4,975,000 principal amount 7% convertible notes due 2008. (2)Also owns 1,235,000 principal amount 7% convertible notes due 2008. (3)Also owns 640,000 principal amount 7% convertible notes due 2008. (4)Also owns 16,500,000 principal amount 5.75% convertible notes due 2009. (5)Also owns 29,671,000 principal amount 5.75% convertible notes due 2009. (6)Also owns 29,670,000 principal amount 5.75% convertible notes due 2009. (7)Also owns 1,317,000 principal amount 7% convertible notes due 2008. (8)Also owns 26,683,000 principal amount 7% convertible notes due 2008. (9)Also owns 4,500,000 principal amount 7% convertible notes due 2008. (10)Also owns 33,000,000 principal amount 7% convertible notes due 2008 and 5,000,000 principal amount 5.75% convertible notes due 2009. (11)Also owns 455,000 principal amount 7% convertible notes due 2008. (12)Also owns 195,000 principal amount 7% convertible notes due 2008. (13)Also owns 3,030,000 principal amount 7% convertible notes due 2008. (14)Also owns 765,000 principal amount 7% convertible notes due 2008. (15)Also owns 4,230,000 principal amount 7% convertible notes due 2008. (16)Also owns 1,975,000 principal amount 7% convertible notes due 2008. (17)Also owns 4,890,000 principal amount 7% convertible notes due 2008. * Less than one percent. None of the selling securityholders listed above has, or within the past three years has had, any position, office or other material relationship with us or any of our predecessors or affiliates. Because the selling securityholders may offer all or some portion of the above referenced securities pursuant to this prospectus or otherwise, no estimate can be given as to the amount or percentage of such securities that will be held by the selling securityholders upon termination of any such sale. In addition, the selling securityholders identified above may have sold, transferred or otherwise disposed of all or a portion of such securities since the date on which they provided the information regarding their securities in transactions exempt from the registration requirements of the 60 66 Securities Act. The selling securityholders may sell all, part or none of the securities listed above. Generally, only selling securityholders identified in the foregoing table who beneficially own the offered securities set forth opposite their respective names may sell such offered securities pursuant to the registration statement, of which this prospectus forms a part. We may from time to time include additional selling securityholders in supplements to this prospectus. 61 67 PLAN OF DISTRIBUTION The offered securities are being registered to permit public secondary trading of such securities by the holders thereof from time to time after the date of this prospectus. Neither NTL Incorporated nor NTL Communications will receive any of the proceeds from the sale by the selling securityholders of the offered securities. NTL Incorporated and NTL Communications will bear all fees and expenses incurred in connection with their obligation to register the offered securities. The selling securityholders may sell all or a portion of the offered securities beneficially owned by them and offered hereby from time to time directly through one or more underwriters, broker-dealers or agents. If the offered securities are sold through underwriters or broker-dealers, the selling securityholder will be responsible for underwriting discounts or commissions or agent's commissions. Such offered securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (1) on any national securities exchange or quotation service on which the offered securities may be listed or quoted at the time of sale (including the New York Stock Exchange for the common stock), (2) in the over-the-counter market, or (3) through the writing of options (whether such options are listed on an options exchange or otherwise). In connection with sales of the offered securities or otherwise, the selling securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the offered securities in the course of hedging in positions they assume. The selling securityholder may also sell offered securities short and deliver offered securities to close out short positions, or loan or pledge offered securities to broker-dealers that in turn may sell such offered securities. If the selling securityholders effect such transactions by selling offered securities to or through underwriters, broker- dealers or agents, such underwriters, brokers, dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling securityholders or commissions from purchasers of offered securities for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, brokers-dealers or agents may be in excess of those customary in the types of transactions involved). The outstanding common stock of NTL Incorporated is listed for trading on the New York Stock Exchange under the symbol "NLI." We do not intend to apply for listing of the convertible notes on any securities exchange. Accordingly, no assurance can be given as to the development of liquidity or any trading market for the convertible notes. See "Risk Factors -- There has been no public market for the convertible notes -- we cannot assure you that a liquid market will develop for the convertible notes." 62 68 The selling securityholders and any broker-dealer participating in the distribution of the offered securities may be deemed to be "underwriters" within the meaning of the Securities Act, and any commissions paid, or any discounts or concessions allowed to any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. Under the securities laws of certain states, the offered securities may be sold in such states only through registered or licensed brokers or dealers. In addition, in certain states the offered securities may not be sold unless the offered securities have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. There can be no assurance that any selling securityholder will sell any or all of the convertible notes or offered securities registered pursuant to the shelf registration statement, or which this prospectus forms a part. In addition, any securities covered by this prospectus that qualify for sale pursuant to Rule 144 or Rule 144A of the Securities Act may be sold under Rule 144 or Rule 144A rather than pursuant to this prospectus. The selling securityholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the offered securities by the selling securityholders and any other such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of the offered securities to engage in market-making activities with respect to the particular offered securities being distributed. All of the foregoing may affect the marketability of the offered securities and the ability of any person or entity to engage in market-making activities with respect to the offered securities. All expenses of the registration of the convertible notes and common stock pursuant to the registration rights agreement will be paid by NTL Incorporated and NTL Communications including, without limitation, Commission filing fees and expenses of compliance with state securities or "blue sky" laws; provided, however, that the selling securityholders will pay all underwriting discounts and selling commissions, if any. The selling securityholders will be indemnified by NTL Incorporated and NTL Communications against certain civil liabilities, including certain liabilities under the Securities Act, or will be entitled to contribution in connection therewith. NTL Incorporated and NTL Communications will be indemnified by the selling securityholders against certain civil liabilities, including certain liabilities under the Securities Act, or will be entitled to contribution in connection therewith. Upon sale pursuant to the shelf registration statement, of which this prospectus forms a part, the offered securities will be freely tradable in the hands of persons other than affiliates of NTL Incorporated. 63 69 LEGAL MATTERS The validity of the issuance of the convertible notes and the common stock issuable upon conversion of the convertible notes will be passed upon for NTL Incorporated and NTL Communications by Skadden, Arps, Slate, Meagher & Flom LLP, London, England. EXPERTS The consolidated financial statements and schedules of NTL Incorporated appearing in NTL Incorporated's Annual Report on Form 10-K for the year ended December 31, 2000 and the consolidated financial statements of NTL Communications at December 31, 2000 set forth in its Form 8-K/A dated May 4, 2001 have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports thereon included therein and incorporated herein by reference. The consolidated financial statements of NTL (CWC Holdings) as of December 31, 2000 and for the seven months then ended set forth in NTL Communications' Form 8-K/A dated May 4, 2001 have been audited by Ernst & Young, independent auditors, as set forth in their report thereon and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firms as experts in accounting and auditing. The combined financial statements of CWC ConsumerCo as of March 31, 1999 and 2000 and for the three years ended March 31, 2000 have been audited by Arthur Andersen, Chartered Accountants, as indicated in their report, and are incorporated by reference in this prospectus in reliance upon the report of said firm as experts in giving said report. The consolidated financial statements of Cablecom Holding AG as of December 31, 1999 and 1998 and for each of the two years in the period ended December 31, 1999 incorporated by reference in this prospectus have been so included in reliance on the report of PricewaterhouseCoopers AG, independent accountants, given on the said authority of said firm as experts in auditing and accounting. ENFORCEABILITY OF CIVIL LIABILITIES Some of our directors and officers are not U.S. residents and a substantial majority of our assets are located outside the United States. As a result, it may not be possible for you to realize in the United States upon judgments of courts of the United States predicated upon the civil liability under the federal securities laws of the United States. The United States and England do not currently have a treaty providing for the reciprocal recognition and enforcement of judgments, other than arbitration awards, in civil and commercial matters. Therefore, a final judgment for the payment of a fixed debt or sum of money rendered by any United States court based on civil liability, whether or not predicated solely upon the United States federal securities laws, would not automatically be enforceable in England. In order to enforce in England a United States judgment, proceedings must be initiated by way of common law action before a court of competent jurisdiction in England. An English court will, subject to what is said below, normally order summary judgment on the basis that there is no defense to the 64 70 claim for payment and will not reinvestigate the merits of the original dispute. In such an action, an English court will treat the United States judgment as creating a valid debt upon which the judgment creditor could bring an action for payment, as long as (1) the United States court had jurisdiction over the original proceeding, (2) the judgment is final and conclusive on the merits, (3) the judgment does not contravene English public policy, (4) the judgment must not be for a tax, penalty or a judgment arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained and (5) the judgment has not been obtained by fraud or in breach of the principles of natural justice. Based on the foregoing, there can be no assurance that you will be able to enforce in England judgments in civil and commercial matters obtained in any United States court. There is doubt as to whether an English court would impose civil liability in an original action predicated solely upon the United States federal securities laws brought in a court of competent jurisdiction in England. WHERE YOU CAN FIND MORE INFORMATION ABOUT US NTL Incorporated and NTL Communications are currently subject to the informational requirements of the Securities Exchange Act of 1934, as amended and file reports, proxy statements, information statements and other information with the Commission under the Exchange Act. You can inspect and copy any reports, proxy statements, information statements and other information we file with the Commission at the public reference facilities the Commission maintains at: Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices located at: Suite 1400, Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661 and 13th Floor, Seven World Trade Center, New York, New York 10048, and you may also obtain copies of such material at prescribed rates by mail from the Public Reference Section of the Commission at: 450 Fifth Street, N.W., Washington, D.C. 20549, The Commission also maintains a site on the World Wide Web, the address of which is http://www.sec.gov. That site also contains our reports, proxy and information statements and other information. 65 71 Reports, proxy statements and other information concerning the Company may also be inspected at the offices of the New York Stock Exchange, at: New York Stock Exchange, Inc. 11 Wall Street New York, New York 10005 Tel (212) 656-3000 INCORPORATION BY REFERENCE The Commission allows us to "incorporate by reference" information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the Commission. The information incorporated by reference is deemed to be part of this prospectus, except for any information superseded by information in, or incorporated by reference in, this prospectus. This prospectus incorporates by reference the documents set forth below that we have previously filed with the Commission. We incorporate by reference the following documents that have been filed with the Commission: (a) NTL Incorporated's Annual Report filed on Form 10-K for the year ended December 31, 2000, filed on March 30, 2001; and (b) NTL Incorporated's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, dated May 14, 2001, as amended by Form 10-Q/A-1, dated May 21, 2001; (c) NTL Incorporated's Current Reports on Form 8-K, dated January 11, 2001 (filed on January 16, 2001), January 29, 2001 (filed on February 5, 2001), February 8, 2001 (filed on February 9, 2001), March 8, 2001 (filed on March 8, 2001), May 8, 2001 (filed on May 8, 2001), May 10, 2001 (filed on May 10, 2001), May 10, 2001 (filed on May 10, 2001), May 24, 2001 (filed on May 24, 2001), June 5, 2001 (filed on June 8, 2001), June 12, 2001 (filed on June 13, 2001), July 9 (filed on July 9, 2001) and July 13, 2001 (filed on July 13, 2001); (d) NTL's Form 8-B dated October 14, 1993 (filed by NTL Communications Corp. on October 18, 1993), with a description of the common stock and associated rights as amended by Form 8-A12B, filed by NTL Incorporated on October 20, 2000; (e) NTL Communications' Annual Report on Form 10-K for the year ended December 31, 2000, dated March 30, 2001, as amended by Form 8-K/A dated May 4, 2001 (filed on May 7, 2001); (f) NTL Communications' Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, dated May 14, 2001, as amended by Form 10-Q/A-1, dated May 21, 2001; and (g) NTL Communications' Current Reports on Form 8-K dated January 16, 2001 (filed on January 16, 2001), January 19, 2001 (filed on January 19, 2001), 66 72 February 5, 2001 (filed on February 7, 2001), February 21, 2001 (filed on March 7, 2001), as amended by Form 8-K/A, dated May 4, 2001 (filed on May 7, 2001), May 8, 2001 (filed on May 8, 2001), May 10, 2001 (filed on May 10, 2001) and May 24, 2001 (filed on May 24, 2001). Any statement in NTL Incorporated's Annual Report on Form 10-K, NTL Communications' Annual Report on Form 10-K and NTL Communications' Current Report on Form 8-K/A, filed on May 7, 2001, in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any subsequently filed document which also is or is deemed to be or is incorporated by reference modifies or supersedes such statement. Any statement or document so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this prospectus. In addition, all documents filed by NTL Incorporated or NTL Communications, pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (including reports on Form 8-K furnished by NTL Incorporated or NTL Communications, but only to the extent designated in those reports on Form 8-K) after the date of this prospectus and prior to the termination of the offering contemplated by this prospectus shall be incorporated by reference in this prospectus from the date of filing or furnishing of these documents or reports. You can obtain any of these documents incorporated by reference by written or oral request through us or the Commission. Documents incorporated by reference are available from us without charge, excluding all exhibits unless we have specifically incorporated by reference an exhibit in this prospectus. Exhibits to such documents will not be provided without charge to those persons seeking such information unless the requested exhibits are specifically incorporated by reference in those documents. You may obtain documents incorporated by reference in this prospectus by requesting them from: NTL INCORPORATED NTL COMMUNICATIONS CORP. 110 East 59th Street 26th Floor New York NY 10022 Attention: Richard J. Lubasch Tel: (212) 906-8440 67 73 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- NTL COMMUNICATIONS CORP. NTL INCORPORATED 6 3/4% CONVERTIBLE SENIOR NOTES DUE 2008 NTL INCORPORATED COMMON STOCK ------------------------ PROSPECTUS ------------------------ , 2001 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 74 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following is an itemization of all expenses (subject to future contingencies) incurred or expected to be incurred by NTL Incorporated and NTL Communications in connection with the offering. SEC registration fee........................................ $ 0 Legal fees and expenses..................................... * Accounting fees and expenses................................ * Printing and engraving fees................................. * Miscellaneous expenses...................................... * ----------- Total..................................................... $ * ===========
- --------------- *To be completed by amendment ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS As permitted by Section 102 of the Delaware General Corporation Law (the "DGCL"), the Registrants' certificate of incorporation eliminates a director's personal liability for monetary damages to the Registrants and their stockholders arising from a breach or alleged breach of a director's fiduciary duty except for liability under Section 174 of the DGCL or liability for a breach of the director's duty of loyalty to the Registrants or their stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or for any transaction in which the director derived an improper personal benefit. The effect of these provisions in the certificate of incorporation is to eliminate the rights of the Registrants and their stockholders (through stockholders, derivative suits on behalf of the Registrants) to recover monetary damages against a director for breach of fiduciary duty as a director (including breaches resulting from negligent or grossly negligent behavior) except in the situations described above. The Registrants' By-laws provide that directors and officers of the Registrants shall be indemnified against liabilities arising from their service as directors and officers to the full extent permitted by law. Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with II-1 75 respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 also empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the fight of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorney's fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted under similar standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless, and only to the extent that, the Court of Chancery or the court in which such action was brought shall determine that despite the adjudication of liability such person is fairly and reasonably entitled to indemnify for such expenses which the court shall deem proper. Section 145 further provides that to the extent that a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation is empowered to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liabilities under Section 145. The Registrants have entered into director and officer indemnity agreements ("Indemnity Agreements") with each officer and director of the Registrants (an "Indemnitee"). Under the bylaws and these Indemnity Agreements, the Registrants must indemnify an Indemnitee to the fullest extent permitted by the DGCL for losses and expenses incurred in connection with actions in which the indemnitee is involved by reason of having been a director or officer of the Registrants. The Registrants are also obligated to advance expenses an indemnitee may incur in connection with such actions before any resolution of the action. ITEM 16. EXHIBITS The following exhibits are filed as part of this Registration Statement:
EXHIBIT NO. DESCRIPTION - ------- ----------- 2.1 Agreement and Plan of Merger, dated as of February 9, 2000, by and among NTL Incorporated, NTL Communications Corp. and Holdings Merger Sub Inc. (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3, filed by NTL (Delaware), Inc. and NTL Incorporated on July 14, 2000, File No. 333-36434)
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EXHIBIT NO. DESCRIPTION - ------- ----------- 2.2 Agreement and Plan of Merger, dated as of March 26, 1999, among the Company, NTL Communications and NTL Merger Inc. (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-3, filed by NTL Incorporated and NTL Communications Corp. on June 3, 1999, File No. 333-72335) 2.3 Agreement and Plan of Amalgamation, dated as of February 4, 1998, as amended, among the Company, NTL (Bermuda) Limited, and Comcast U.K. Cable Partners Limited (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Incorporated on September 30, 1998, File No. 333-64727) 2.4 Amendment No. 1 to Agreement and Plan of Amalgamation, dated as of May 28, 1998, among the Company, NTL (Bermuda) Limited and Comcast U.K. Cable Partners Limited (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Incorporated on September 30, 1998, File No. 333-64727) 2.5 Share Exchange Agreement, dated as of June 16, 1998, as amended, among the Company and the shareholders of Diamond Cable Communications Plc (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on January 29, 1999, File No. 000-22616) 2.6 Amendment No. 1 to Share Exchange Agreement, dated as of December 21, 1998, among the Company and the shareholders of Diamond Cable Communications plc (Incorporated by reference to Form 8-K, filed by NTL Inc. on December 23, 1998, File No. 000-22616) 2.7 Transaction Agreement, dated as of July 26, 1999, by and between, Bell Atlantic Corporation, Cable and Wireless PLC, Cable and Wireless Communications PLC and NTL Incorporated (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691) 2.8 Investment Agreement, dated as of July 26, 1999, by and between, NTL Incorporated and France Telecom S.A. (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691) 2.8 (a) Amendment No. 1 to the Investment Agreement, dated as of August 6, 1999 (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691) 2.8 (b) Amendment No. 2 to the Investment Agreement, dated as of October 8, 1999 (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691) 2.9 Purchase Agreement, dated as of February 17, 2000, by and between France Telecom, S.A. and NTL Incorporated (Incorporated by reference to the Form 8-K, filed by NTL Inc. on February 22, 2000, File No. 000-25691)
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EXHIBIT NO. DESCRIPTION - ------- ----------- 2.10 Transaction Agreement dated as of December 12, 1999 among Cablecom Holding AG and NTL Incorporated and certain other parties thereto (Incorporated by reference to the 1999 Annual Report on Form 10-K, filed by NTL Inc. on March 17, 2000, File No. 000-25691) 4.1 Indenture, dated as of September 28, 1994, between Diamond Cable Communications plc, and The Bank of New York as Trustee, with respect to the 13 1/4% Senior Discount Notes due September 30, 2004 (Incorporated by reference to the Registration Statement on Form S-1, filed by Diamond Cable Communications plc on September 6, 1994, File No. 33-83740) 4.2 First Supplemental Indenture, dated as of May 31, 1996, between Diamond Cable Communications plc and The Bank of New York as Trustee (Incorporated by reference to Post-Effective Amendment No. 4 to the Registration Statement on Form S-1, filed by Diamond Cable Communications plc on September 12, 1996, File No. 33-83740) 4.3 Indenture, dated as of April 20, 1995, by and between NTL Communications Corp. and Chemical Bank as Trustee, with respect to the 12 3/4% Senior Notes (Incorporated by reference to the Registration Statement on Form S-4, filed by International CableTel Incorporated on May 26, 1995, File No. 33-92794) 4.4 First Supplemental Indenture, dated as of January 22, 1996, by and among NTL Communications Corp. and Chemical Bank, as Trustee, with respect to the 12 3/4% Senior Notes (Incorporated by reference to the Registration Statement on Form S-4, filed by International CabelTel Incorporated on February 5, 1996, File No. 333-1010) 4.5 Indenture, dated as of November 11, 1995, between Comcast UK Cable Partners Limited and Bank of Montreal Trust Company as Trustee with respect to the 11 1/5% Senior Discount Debentures due 2007 (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1 filed by Comcast UK Cable Partners Limited on November 5, 1995, File No. 33-96932) 4.6 Indenture, dated as of December 15, 1995, between Diamond Cable Communications plc, and The Bank of New York as Trustee, with respect to the 11 3/4% Senior Discount Notes due December 15, 2005 (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1, filed by Diamond Cable Communications plc on December 6, 1995, File No. 33-98374) 4.7 Indenture, dated as of January 30, 1996, by and between NTL Communications and Chemical Bank as Trustee, with respect to the 11 1/2% Senior Notes due 2006 (Incorporated by reference to the Registration Statement on Form S-4, filed by International CabelTel Incorporated on February 5, 1996, File No. 333-1010)
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EXHIBIT NO. DESCRIPTION - ------- ----------- 4.8 Indenture, date as of February 12, 1997, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 10% Senior Notes (Incorporated by reference to the 1996 Annual Report on Form 10-K, filed by NTL Incorporated on March 28, 1997, File No. 000-22616) 4.9 Indenture, dated as of February 27, 1997, between Diamond Cable Communications plc and The Bank of New York as Trustee, with respect to the 10 3/4% Senior Discount Notes due February 15, 2007 (Incorporated by reference to the Registration Statement on Form S-4, filed by Diamond Cable Communications plc on April 15, 1997, File No. 333-25193) 4.10 Indenture, dated as of February 6, 1998, between Diamond Holdings plc, Diamond Cable Communications plc, and The Bank of New York as Trustee, with respect to the 10% Senior Notes due February 1, 2008 and 9 1/8% Senior Notes due February 1, 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by Diamond Cable Communications plc on March 20, 1998, File No. 333-48413) 4.11 Indenture, dated as of March 13, 1998, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 9 1/2% Senior Notes (Incorporated by reference to the 1997 Form 10-K filed by NTL Communications (File No. 0-22616) on March 30, 1998) 4.12 Indenture, date as of March 13, 1998, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 9 3/4% Senior Deferred Coupon Notes (Incorporated by reference to the 1997 Form 10-K, filed by NTL Incorporated on March 30, 1998, File No. 000-22616) 4.13 Indenture, date as of March 13, 1998, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 10 3/4% Senior Deferred Coupon Notes (Incorporated by reference to the 1997 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1998, File No. 000-22616) 4.14 Indenture, date as of November 2, 1998, by and among NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 11 1/2% Senior Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616) 4.15 Indenture, date as of November 6, 1998, by and among NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 12 3/8% Senior Deferred Coupon Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616)
II-5 79
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.16 Indenture, date as of December 16, 1998, by and among NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616) 4.17 First Supplemental Indenture, date as of March 31, 1999, between NTL Incorporated, NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-3, filed by NTL Incorporated and NTL Communications Corp. on June 3, 1999, File No. 333-72335) 4.18 Second Supplemental Indenture, dated as of March 16, 2000, between NTL Incorporated, NTL Communications Corp. (formerly NTL Incorporated) and The Chase Manhattan Bank as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3/A , filed by NTL Incorporated, NTL (Delaware), Inc. and NTL Communications Corp. on August 30, 2000, File No. 333-42792) 4.19 Third Supplemental Indenture, dated as of May 17, 2000, between NTL Incorporated, NTL Communications Corp. (formerly NTL Incorporated) and The Chase Manhattan Bank as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3/A, filed by NTL Incorporated, NTL (Delaware), Inc. and NTL Communications Corp. on August 30, 2000, File No. 333-42792) 4.20 Indenture, dated as of April 14, 1999, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 9 3/4% Senior Deferred Coupon Notes due 2009 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on May 13, 1999, File No. 333-78405) 4.21 Indenture, dated as of November 24, 1999, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 9 1/4% Senior Notes due 2006 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on January 24, 2000, File No. 333-95267) 4.22 Indenture, dated as of November 24, 1999, between NTL Communication Corp. and The Chase Manhattan Bank as Trustee, with respect to the 9 7/8% Senior Notes Due 2009 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communication Corp. on January 24, 2000, File No. 333-95267)
II-6 80
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.23 Indenture, dated as of November 24, 1999, between NTL Communications Corp. (Issuer) and The Chase Manhattan Bank as Trustee, with respect to the 11 1/2% Senior Deferred Coupon Notes due 2009 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on January 24, 2000, File No. 333-95267) 4.24 Indenture, dated as of December 22, 1999, between NTL Incorporated and The Chase Manhattan Bank as Trustee, with respect to the 5 3/4% Convertible Subordinated Notes Due 2009 (Incorporated by reference to the 1999 Annual Report on Form 10-K, filed by NTL Incorporated on March 17, 2000, File No. 000-25691) 4.25 First Supplemental Indenture, dated as of May 17, 2000, between NTL Incorporated and The Chase Manhattan Bank as Trustee, with respect to the 5 3/4% Convertible Subordinated Notes due 2009 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3, filed by NTL (Delaware), Inc. and NTL Incorporated on July 14, 2000, File No. 333-36434) 4.26 Indenture, dated as of October 2, 2000, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 11 7/8% Senior Notes due 2010 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on October 26, 2000, File No. 333-48648) 4.27 Indenture, dated as of January 24, 2001, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 12 3/8% Senior Notes due 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on February 9, 2001, File No. 333-55288) 4.28 Indenture, dated as of May 15, 2001, between NTL Communications Corp., NTL Incorporated and The Chase Manhattan Bank, as Trustee, with respect to the 6 3/4% Convertible Senior Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-4, filed by NTL Communications Corp. on June 8, 2001, File No. 333-55288) 4.29 Indenture, dated as of June 22, 2001 between NTL Incorporated, NTL (Delaware) Inc. and The Chase Manhatten Bank, as Trustee, with respect to the 5 3/4% convertible subordinated notes due 2011* 4.30 Registration Rights Agreement, dated as of February 2, 2000, by and between NTL Incorporated and Bell Atlantic Corporation (Incorporated by reference to the Proxy Statement, filed by NTL Incorporated on February 11, 2000, File No. 000-25691) 4.30(a) Amendment No. 1 to the Registration Rights Agreement, dated as of November 30, 2000 by and between NTL Incorporated and Verizon Communications Inc. (formerly known as Bell Atlantic Corporation)
II-7 81
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.30(b) Amendment No. 2 to the Registration Rights Agreement, dated as of March 31, 2001 by and between NTL Incorporated and Verizon Communications Inc. (formerly known as Bell Atlantic Corporation) 4.30(c) Amendment No. 3 to the Registration Rights Agreement, dated as of June 30, 2001 by and between NTL Incorporated and Verizon Communications Inc. (formerly known as Bell Atlantic Corporation) 4.31 Registration Rights Agreement, dated as of February 2, 2000, by and between NTL Incorporated and Cable & Wireless plc (Incorporated by reference to the Proxy Statement, filed by NTL Incorporated on February 11, 2000, File No. 000-25691) 4.32 Registration Rights Agreement, dated as of December 16, 1998 by and among NTL Communications Corp. and Donaldson, Lufkin & Jenrette Securities Corporation, Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Chase Securities Inc., Salomon Smith Barney Inc, BT Alex. Brown Incorporated and Warburg Dillon Read LLC with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616) 4.33 Registration Rights Agreement, dated as of December 22, 1999 by and among NTL Incorporated, Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Donaldson, Lufkin & Jenrette Securities Corporation, Salomon Smith Barney Inc., Warburg Dillon Read LLC, Chase Securities Inc., Lehman Brothers Inc. and Wasserstein Perella Securities, Inc. with respect to the 5 3/4% Convertible Subordinated Notes due 2009 (Incorporated by reference to the 1999 Annual Report on Form 10K, filed by NTL Incorporated on March 17, 2000, File No. 000-25691). 4.34 Registration Rights Agreement, dated as of May 30, 2000, by and between NTL Incorporated and France Telecom, with respect to the 5% Cumulative Participating Convertible Preferred Stock Series A (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 4.35 Registration Rights Agreement, dated as of March 5, 1999, between NTL Communications Corp. and the Shareholders of Diamond Cable Communications plc (Incorporated by reference to Annex D to the Proxy Statement, filed by NTL Incorporated on January 29, 1999, File No. 000-22616) 4.36 Registration Rights Agreement, dated as of October 29, 1998, between NTL Incorporated, NTL (Bermuda) Limited and Comcast Corporation and Warburg, Pincus Investors, L.P. (Incorporated by reference to Annex G to the Registration Statement on Form S-4, filed by NTL Incorporated on September 30, 1998, File No. 333-64727)
II-8 82
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.37 Registration Rights Agreement, dated as of January 24, 2001, by and among NTL Communications Corp. and Morgan Stanley & Co. International Limited, J.P. Morgan Securities Ltd., Goldman Sachs International, Bank of America International Limited, BNP Paribas Securities Corp., CIBC World Markets plc and the Royal Bank of Scotland plc with respect to the 12 3/8% Senior Notes due 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on February 9, 2001, File No. 333-55288) 4.38 Registration Rights Agreement, dated as of February 8, 2001, by and among NTL Communications Corp. and Morgan Stanley & Co. International Limited, J.P. Morgan Securities Ltd., Goldman Sachs International, Bank of America International Limited, BNP Paribas Securities Corp., CIBC World Markets plc and the Royal Bank of Scotland plc with respect to the 12 3/8% Senior Notes due 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on February 9, 2001, File No. 333-55288) 4.39 Registration Rights Agreement dated as of May 15, 2001 by and among NTL Communications Corp., NTL Incorporated, Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc., Credit Suisse First Boston Corporation and Salomon Smith Barney Inc. with respect to the 6 3/4% Convertible Senior Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-4, filed by NTL Communications Corp. on June 8, 2001, File No. 333-55288) 4.40 Registration Rights Agreement dated as of June 22, 2001 by and among NTL Incorporated, NTL (Delaware) Inc. and SFG VI Inc. (Incorporated by reference to the Registration Statement on Form S-3, filed by NTL Incorporated on July 24, 2001) 4.41 Form of Preferred Stock (Incorporated by reference to the 1996 Form 10-K, filed by NTL Incorporated on March 28, 1997, File No. 000-22616) 4.42 Rights Agreement, dated as of September, 1993, entered into by NTL Incorporated and Continental Stock Transfer & Trust Company (Incorporated by reference to Amendment No. 1 to the Registration Statement of Form S-1, filed by International CableTel, Inc. on August 11, 1993, File No. 33-63570) 4.42(a) Amendment No. 1 to the Rights Agreement, dated as of March 31, 1999, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the Registration Statement on Form S-8, filed by NTL Incorporated on April 20, 1999, File No. 333-76601)
II-9 83
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.42(b) Amendment No. 2 to the Rights Agreement, dated as of October 23, 1999, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 1999 Annual Report on Form 10-K, Incorporated, filed by NTL Incorporated on March 17, 2000, File No. 000-25691) 4.42(c) Amendment No. 3 to the Rights Agreement, dated as of March 28, 2000, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 4.42(d) Amendment No. 4 to the Rights Agreement, dated as of May 17, 2000, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 2000 Annual Report on Form 10-K filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 4.42(e) Amendment No. 5 to the Rights Agreement, dated as of May 25, 2000, between Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to the legality of the convertible notes and common stock being registered hereby* 10.1 Credit Agreement, dated as of May 30, 2000, between NTL Communications Corp., NTL (UK) Group, Inc., NTL Communications Limited, Morgan Stanley Dean Witter Bank Limited and Chase Manhattan PLC (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 10.2 Credit Agreement relating to the acquisition of Cable & Wireless Communications (Holdings) PLC, dated as of May 30, 2000, between NTL Communications Limited, NTL Business Limited, NTL Communications Corp., Chase Manhattan PLC and Morgan Stanley Dean Witter Limited, Chase Manhattan International Limited (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 10.3 Credit Agreement, dated March 30, 2001 among NTL Australia Pty Limited and a syndicate of banks jointly led JPMorgan, Barclays Bank, Bank of Scotland, Credit Lyonnais, National Australia Bank and West LB
II-10 84
EXHIBIT NO. DESCRIPTION - ------- ----------- 10.4 Credit Agreement dated 28 March 2000, between NTL Incorporated, NTL Cablecom Holding GmbH, Cablecom (Ostschweiz) AG and Chase Manhattan plc and Morgan Stanley Senior Funding, Inc., as Arrangers and Joint Book Managers, Chase Manhattan International Limited as Agent and Others Term, comprising a Loan Facility and a Revolving Credit Facility 12.1 NTL Communications Corp. Computation of Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends 12.2 NTL Incorporated Computation of Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends 23.1 Consent of Ernst & Young LLP 23.2 Consent of Ernst & Young 23.3 Consent of Arthur Andersen 23.4 Consent of PricewaterhouseCoopers AG 23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)* 24.1 Powers of Attorney (included in signature page) 25.1 Form T-1 Statement of Eligibility of Trustee with respect to the Indenture included as Exhibit 4.28*
- --------------- * To be filed by amendment. ITEM 17. UNDERTAKINGS (a)Each undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act) that is incorporated by reference in the Registration Statement, as amended, shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b)Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, each Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction II-11 85 the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. (c)Each undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For purposes of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (d) Each undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement provided, however, that paragraphs (d)(1)(i) and (d)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in a periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. II-12 86 SIGNATURE Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on the 24th day of July, 2001. NTL Incorporated By: /s/ Richard J. Lubasch ------------------------------------ Richard J. Lubasch Executive Vice President -- General Counsel and Secretary POWER OF ATTORNEY KNOWN BY ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below, constitutes and appoints Richard J. Lubasch, John F. Gregg and Gregg N. Gorelick, or any of them, acting alone, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his name, place and stead, in any and all capacities, in connection with the registrant's Registration Statement in the name and on behalf of the registrant or on behalf of the undersigned as a director or officer of the registrant, on Form S-3 under the Securities Act of 1933, as amended, including, without limiting the generality of the foregoing, to sign the Registration Statement and any and all amendments (including post-effective amendments) to the Registration Statement, and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or either of them, acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, thereby ratifying and confirming all that said attorney-in-fact and agent or his or her substitute of substitutes, may lawfully do or cause to be done by virtue hereof. II-13 87 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Chairman of the Board, - --------------------------------------------------- and Treasurer and George S. Blumenthal Director /s/ BARCLAY KNAPP President, Chief July 24, 2001 - --------------------------------------------------- Executive Officer and Barclay Knapp Director /s/ JOHN F. GREGG Senior Vice President, July 24, 2001 - --------------------------------------------------- Chief Financial John F. Gregg Officer /s/ GREGG N. GORELICK Vice July 24, 2001 - --------------------------------------------------- President -- Controller Gregg N. Gorelick Director - --------------------------------------------------- Michael J. Bertinetto /s/ ROBERT T. GOAD Director July 24, 2001 - --------------------------------------------------- Robert T. Goad Director - --------------------------------------------------- Bernard Izerable /s/ SIDNEY R. KNAFEL Director July 24, 2001 - --------------------------------------------------- Sidney R. Knafel /s/ Director - --------------------------------------------------- Ted H. McCourtney /s/ DEL MINTZ Director July 24, 2001 - --------------------------------------------------- Del Mintz /s/ ALAN J. PATRICOF Director July 24, 2001 - --------------------------------------------------- Alan J. Patricof /s/ WARREN POTASH Director July 24, 2001 - --------------------------------------------------- Warren Potash /s/ JEAN-LOUIS VINCIGUERRA Director July 24, 2001 - --------------------------------------------------- Jean-Louis Vinciguerra /s/ MICHAEL S. WILLNER Director July 24, 2001 - --------------------------------------------------- Michael S. Willner
II-14 88 SIGNATURE Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on the 24th day of July, 2001. NTL Communications Corp. By: /s/ RICHARD J. LUBASCH ------------------------------------ Richard J. Lubasch Executive Vice President -- General Counsel and Secretary POWER OF ATTORNEY KNOWN BY ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below, constitutes and appoints Richard J. Lubasch, John F. Gregg and Gregg N. Gorelick, or any of them, acting alone, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his name, place and stead, in any and all capacities, in connection with the registrant's Registration Statement in the name and on behalf of the registrant or on behalf of the undersigned as a director or officer of the registrant, on Form S-3 under the Securities Act of 1933, as amended, including, without limiting the generality of the foregoing, to sign the Registration Statement and any and all amendments (including post-effective amendments) to the Registration Statement, and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent or either of them, acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, thereby ratifying and confirming all that said attorney-in-fact and agent or his or her substitute of substitutes, may lawfully do or cause to be done by virtue hereof. II-15 89 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Chairman of the Board, and - ------------------------------ Treasurer and Director George S. Blumenthal /s/ BARCLAY KNAPP President, Chief Executive July 24, 2001 - ------------------------------ Officer and Director Barclay Knapp /s/ JOHN F. GREGG Senior Vice President, Chief July 24, 2001 - ------------------------------ Financial Officer John F. Gregg /s/ GREGG N. GORELICK Vice President -- Controller July 24, 2001 - ------------------------------ Gregg N. Gorelick /s/ Director - ------------------------------ Michael J. Bertinetto /s/ ROBERT T. GOAD Director July 24, 2001 - ------------------------------ Robert T. Goad /s/ Director - ------------------------------ Bernard Izerable /s/ SIDNEY R. KNAFEL Director July 24, 2001 - ------------------------------ Sidney R. Knafel /s/ Director - ------------------------------ Ted H. McCourtney /s/ DEL MINTZ Director July 24, 2001 - ------------------------------ Del Mintz /s/ ALAN J. PATRICOF Director July 24, 2001 - ------------------------------ Alan J. Patricof /s/ WARREN POTASH Director July 24, 2001 - ------------------------------ Warren Potash /s/ JEAN-LOUIS VINCIGUERRA Director July 24, 2001 - ------------------------------ Jean-Louis Vinciguerra /s/ MICHAEL S. WILLNER Director July 24, 2001 - ------------------------------ Michael S. Willner
II-16 90 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ------- ----------- 2.1 Agreement and Plan of Merger, dated as of February 9, 2000, by and among NTL Incorporated, NTL Communications Corp. and Holdings Merger Sub Inc. (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3, filed by NTL (Delaware), Inc. and NTL Incorporated on July 14, 2000, File No. 333-36434) 2.2 Agreement and Plan of Merger, dated as of March 26, 1999, among the Company, NTL Communications and NTL Merger Inc. (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-3, filed by NTL Incorporated and NTL Communications Corp. on June 3, 1999, File No. 333-72335) 2.3 Agreement and Plan of Amalgamation, dated as of February 4, 1998, as amended, among the Company, NTL (Bermuda) Limited, and Comcast U.K. Cable Partners Limited (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Incorporated on September 30, 1998, File No. 333-64727) 2.4 Amendment No. 1 to Agreement and Plan of Amalgamation, dated as of May 28, 1998, among the Company, NTL (Bermuda) Limited and Comcast U.K. Cable Partners Limited (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Incorporated on September 30, 1998, File No. 333-64727) 2.5 Share Exchange Agreement, dated as of June 16, 1998, as amended, among the Company and the shareholders of Diamond Cable Communications Plc (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on January 29, 1999, File No. 000-22616) 2.6 Amendment No. 1 to Share Exchange Agreement, dated as of December 21, 1998, among the Company and the shareholders of Diamond Cable Communications plc (Incorporated by reference to Form 8-K, filed by NTL Inc. on December 23, 1998, File No. 000-22616) 2.7 Transaction Agreement, dated as of July 26, 1999, by and between, Bell Atlantic Corporation, Cable and Wireless PLC, Cable and Wireless Communications PLC and NTL Incorporated (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691) 2.8 Investment Agreement, dated as of July 26, 1999, by and between, NTL Incorporated and France Telecom S.A. (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691) 2.8 (a) Amendment No. 1 to the Investment Agreement, dated as of August 6, 1999 (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691)
91
EXHIBIT NO. DESCRIPTION - ------- ----------- 2.8 (b) Amendment No. 2 to the Investment Agreement, dated as of October 8, 1999 (Incorporated by reference to the Proxy Statement, filed by NTL Inc. on February 11, 2000, File No. 000-25691) 2.9 Purchase Agreement, dated as of February 17, 2000, by and between France Telecom, S.A. and NTL Incorporated (Incorporated by reference to the Form 8-K, filed by NTL Inc. on February 22, 2000, File No. 000-25691) 2.10 Transaction Agreement dated as of December 12, 1999 among Cablecom Holding AG and NTL Incorporated and certain other parties thereto (Incorporated by reference to the 1999 Annual Report on Form 10-K, filed by NTL Inc. on March 17, 2000, File No. 000-25691) 4.1 Indenture, dated as of September 28, 1994, between Diamond Cable Communications plc, and The Bank of New York as Trustee, with respect to the 13 1/4% Senior Discount Notes due September 30, 2004 (Incorporated by reference to the Registration Statement on Form S-1, filed by Diamond Cable Communications plc on September 6, 1994, File No. 33-83740) 4.2 First Supplemental Indenture, dated as of May 31, 1996, between Diamond Cable Communications plc and The Bank of New York as Trustee (Incorporated by reference to Post-Effective Amendment No. 4 to the Registration Statement on Form S-1, filed by Diamond Cable Communications plc on September 12, 1996, File No. 33-83740) 4.3 Indenture, dated as of April 20, 1995, by and between NTL Communications Corp. and Chemical Bank as Trustee, with respect to the 12 3/4% Senior Notes (Incorporated by reference to the Registration Statement on Form S-4, filed by International CableTel Incorporated on May 26, 1995, File No. 33-92794) 4.4 First Supplemental Indenture, dated as of January 22, 1996, by and among NTL Communications Corp. and Chemical Bank, as Trustee, with respect to the 12 3/4% Senior Notes (Incorporated by reference to the Registration Statement on Form S-4, filed by International CabelTel Incorporated on February 5, 1996, File No. 333-1010) 4.5 Indenture, dated as of November 11, 1995, between Comcast UK Cable Partners Limited and Bank of Montreal Trust Company as Trustee with respect to the 11 1/5% Senior Discount Debentures due 2007 (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1 filed by Comcast UK Cable Partners Limited on November 5, 1995, File No. 33-96932) 4.6 Indenture, dated as of December 15, 1995, between Diamond Cable Communications plc, and The Bank of New York as Trustee, with respect to the 11 3/4% Senior Discount Notes due December 15, 2005 (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1, filed by Diamond Cable Communications plc on December 6, 1995, File No. 33-98374)
92
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.7 Indenture, dated as of January 30, 1996, by and between NTL Communications and Chemical Bank as Trustee, with respect to the 11 1/2% Senior Notes due 2006 (Incorporated by reference to the Registration Statement on Form S-4, filed by International CabelTel Incorporated on February 5, 1996, File No. 333-1010) 4.8 Indenture, date as of February 12, 1997, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 10% Senior Notes (Incorporated by reference to the 1996 Annual Report on Form 10-K, filed by NTL Incorporated on March 28, 1997, File No. 000-22616) 4.9 Indenture, dated as of February 27, 1997, between Diamond Cable Communications plc and The Bank of New York as Trustee, with respect to the 10 3/4% Senior Discount Notes due February 15, 2007 (Incorporated by reference to the Registration Statement on Form S-4, filed by Diamond Cable Communications plc on April 15, 1997, File No. 333-25193) 4.10 Indenture, dated as of February 6, 1998, between Diamond Holdings plc, Diamond Cable Communications plc, and The Bank of New York as Trustee, with respect to the 10% Senior Notes due February 1, 2008 and 9 1/8% Senior Notes due February 1, 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by Diamond Cable Communications plc on March 20, 1998, File No. 333-48413) 4.11 Indenture, dated as of March 13, 1998, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 9 1/2% Senior Notes (Incorporated by reference to the 1997 Form 10-K filed by NTL Communications (File No. 0-22616) on March 30, 1998) 4.12 Indenture, date as of March 13, 1998, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 9 3/4% Senior Deferred Coupon Notes (Incorporated by reference to the 1997 Form 10-K, filed by NTL Incorporated on March 30, 1998, File No. 000-22616) 4.13 Indenture, date as of March 13, 1998, by and between NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 10 3/4% Senior Deferred Coupon Notes (Incorporated by reference to the 1997 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1998, File No. 000-22616) 4.14 Indenture, date as of November 2, 1998, by and among NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 11 1/2% Senior Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616)
93
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.15 Indenture, date as of November 6, 1998, by and among NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 12 3/8% Senior Deferred Coupon Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616) 4.16 Indenture, date as of December 16, 1998, by and among NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616) 4.17 First Supplemental Indenture, date as of March 31, 1999, between NTL Incorporated, NTL Communications Corp. and The Chase Manhattan Bank, as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-3, filed by NTL Incorporated and NTL Communications Corp. on June 3, 1999, File No. 333-72335) 4.18 Second Supplemental Indenture, dated as of March 16, 2000, between NTL Incorporated, NTL Communications Corp. (formerly NTL Incorporated) and The Chase Manhattan Bank as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3/A , filed by NTL Incorporated, NTL (Delaware), Inc. and NTL Communications Corp. on August 30, 2000, File No. 333-42792) 4.19 Third Supplemental Indenture, dated as of May 17, 2000, between NTL Incorporated, NTL Communications Corp. (formerly NTL Incorporated) and The Chase Manhattan Bank as Trustee, with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3/A, filed by NTL Incorporated, NTL (Delaware), Inc. and NTL Communications Corp. on August 30, 2000, File No. 333-42792) 4.20 Indenture, dated as of April 14, 1999, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 9 3/4% Senior Deferred Coupon Notes due 2009 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on May 13, 1999, File No. 333-78405) 4.21 Indenture, dated as of November 24, 1999, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 9 1/4% Senior Notes due 2006 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on January 24, 2000, File No. 333-95267)
94
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.22 Indenture, dated as of November 24, 1999, between NTL Communication Corp. and The Chase Manhattan Bank as Trustee, with respect to the 9 7/8% Senior Notes Due 2009 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communication Corp. on January 24, 2000, File No. 333-95267) 4.23 Indenture, dated as of November 24, 1999, between NTL Communications Corp. (Issuer) and The Chase Manhattan Bank as Trustee, with respect to the 11 1/2% Senior Deferred Coupon Notes due 2009 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on January 24, 2000, File No. 333-95267) 4.24 Indenture, dated as of December 22, 1999, between NTL Incorporated and The Chase Manhattan Bank as Trustee, with respect to the 5 3/4% Convertible Subordinated Notes Due 2009 (Incorporated by reference to the 1999 Annual Report on Form 10-K, filed by NTL Incorporated on March 17, 2000, File No. 000-25691) 4.25 First Supplemental Indenture, dated as of May 17, 2000, between NTL Incorporated and The Chase Manhattan Bank as Trustee, with respect to the 5 3/4% Convertible Subordinated Notes due 2009 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-3, filed by NTL (Delaware), Inc. and NTL Incorporated on July 14, 2000, File No. 333-36434) 4.26 Indenture, dated as of October 2, 2000, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 11 7/8% Senior Notes due 2010 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on October 26, 2000, File No. 333-48648) 4.27 Indenture, dated as of January 24, 2001, between NTL Communications Corp. and The Chase Manhattan Bank as Trustee, with respect to the 12 3/8% Senior Notes due 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on February 9, 2001, File No. 333-55288) 4.28 Indenture, dated as of May 15, 2001, between NTL Communications Corp., NTL Incorporated and The Chase Manhattan Bank, as Trustee, with respect to the 6 3/4% Convertible Senior Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-4, filed by NTL Communications Corp. on June 8, 2001, File No. 333-55288) 4.29 Indenture, dated as of June 22, 2001 between NTL Incorporated, NTL (Delaware) Inc. and The Chase Manhatten Bank, as Trustee, with respect to the 5 3/4% convertible subordinated notes due 2011*
95
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.30 Registration Rights Agreement, dated as of February 2, 2000, by and between NTL Incorporated and Bell Atlantic Corporation (Incorporated by reference to the Proxy Statement, filed by NTL Incorporated on February 11, 2000, File No. 000-25691) 4.30(a) Amendment No. 1 to the Registration Rights Agreement, dated as of November 30, 2000 by and between NTL Incorporated and Verizon Communications Inc. (formerly known as Bell Atlantic Corporation) 4.30(b) Amendment No. 2 to the Registration Rights Agreement, dated as of March 31, 2001 by and between NTL Incorporated and Verizon Communications Inc. (formerly known as Bell Atlantic Corporation) 4.30(c) Amendment No. 3 to the Registration Rights Agreement, dated as of June 30, 2001 by and between NTL Incorporated and Verizon Communications Inc. (formerly known as Bell Atlantic Corporation) 4.31 Registration Rights Agreement, dated as of February 2, 2000, by and between NTL Incorporated and Cable & Wireless plc (Incorporated by reference to the Proxy Statement, filed by NTL Incorporated on February 11, 2000, File No. 000-25691) 4.32 Registration Rights Agreement, dated as of December 16, 1998 by and among NTL Communications Corp. and Donaldson, Lufkin & Jenrette Securities Corporation, Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Chase Securities Inc., Salomon Smith Barney Inc, BT Alex. Brown Incorporated and Warburg Dillon Read LLC with respect to the 7% Convertible Subordinated Notes due 2008 (Incorporated by reference to the 1998 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 1999, File No. 000-22616) 4.33 Registration Rights Agreement, dated as of December 22, 1999 by and among NTL Incorporated, Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Donaldson, Lufkin & Jenrette Securities Corporation, Salomon Smith Barney Inc., Warburg Dillon Read LLC, Chase Securities Inc., Lehman Brothers Inc. and Wasserstein Perella Securities, Inc. with respect to the 5 3/4% Convertible Subordinated Notes due 2009 (Incorporated by reference to the 1999 Annual Report on Form 10K, filed by NTL Incorporated on March 17, 2000, File No. 000-25691). 4.34 Registration Rights Agreement, dated as of May 30, 2000, by and between NTL Incorporated and France Telecom, with respect to the 5% Cumulative Participating Convertible Preferred Stock Series A (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183)
96
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.35 Registration Rights Agreement, dated as of March 5, 1999, between NTL Communications Corp. and the Shareholders of Diamond Cable Communications plc (Incorporated by reference to Annex D to the Proxy Statement, filed by NTL Incorporated on January 29, 1999, File No. 000-22616) 4.36 Registration Rights Agreement, dated as of October 29, 1998, between NTL Incorporated, NTL (Bermuda) Limited and Comcast Corporation and Warburg, Pincus Investors, L.P. (Incorporated by reference to Annex G to the Registration Statement on Form S-4, filed by NTL Incorporated on September 30, 1998, File No. 333-64727) 4.37 Registration Rights Agreement, dated as of January 24, 2001, by and among NTL Communications Corp. and Morgan Stanley & Co. International Limited, J.P. Morgan Securities Ltd., Goldman Sachs International, Bank of America International Limited, BNP Paribas Securities Corp., CIBC World Markets plc and the Royal Bank of Scotland plc with respect to the 12 3/8% Senior Notes due 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on February 9, 2001, File No. 333-55288) 4.38 Registration Rights Agreement, dated as of February 8, 2001, by and among NTL Communications Corp. and Morgan Stanley & Co. International Limited, J.P. Morgan Securities Ltd., Goldman Sachs International, Bank of America International Limited, BNP Paribas Securities Corp., CIBC World Markets plc and the Royal Bank of Scotland plc with respect to the 12 3/8% Senior Notes due 2008 (Incorporated by reference to the Registration Statement on Form S-4, filed by NTL Communications Corp. on February 9, 2001, File No. 333-55288) 4.39 Registration Rights Agreement dated as of May 15, 2001 by and among NTL Communications Corp., NTL Incorporated, Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc., Credit Suisse First Boston Corporation and Salomon Smith Barney Inc. with respect to the 6 3/4% Convertible Senior Notes due 2008 (Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-4, filed by NTL Communications Corp. on June 8, 2001, File No. 333-55288) 4.40 Registration Rights Agreement dated as of June 22, 2001 by and among NTL Incorporated, NTL (Delaware) Inc. and SFG VI Inc. (Incorporated by reference to the Registration Statement on Form S-3, filed by NTL Incorporated on July 24, 2001) 4.41 Form of Preferred Stock (Incorporated by reference to the 1996 Form 10-K, filed by NTL Incorporated on March 28, 1997, File No. 000-22616)
97
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.42 Rights Agreement, dated as of September, 1993, entered into by NTL Incorporated and Continental Stock Transfer & Trust Company (Incorporated by reference to Amendment No. 1 to the Registration Statement of Form S-1, filed by International CableTel, Inc. on August 11, 1993, File No. 33-63570) 4.42(a) Amendment No. 1 to the Rights Agreement, dated as of March 31, 1999, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the Registration Statement on Form S-8, filed by NTL Incorporated on April 20, 1999, File No. 333-76601) 4.42(b) Amendment No. 2 to the Rights Agreement, dated as of October 23, 1999, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 1999 Annual Report on Form 10-K, Incorporated, filed by NTL Incorporated on March 17, 2000, File No. 000-25691) 4.42(c) Amendment No. 3 to the Rights Agreement, dated as of March 28, 2000, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 4.42(d) Amendment No. 4 to the Rights Agreement, dated as of May 17, 2000, between NTL Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 2000 Annual Report on Form 10-K filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 4.42(e) Amendment No. 5 to the Rights Agreement, dated as of May 25, 2000, between Incorporated and Continental Stock Transfer & Trust Company, as Rights Agent (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to the legality of the convertible notes and common stock being registered hereby* 10.1 Credit Agreement, dated as of May 30, 2000, between NTL Communications Corp., NTL (UK) Group, Inc., NTL Communications Limited, Morgan Stanley Dean Witter Bank Limited and Chase Manhattan PLC (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183)
98
EXHIBIT NO. DESCRIPTION - ------- ----------- 10.2 Credit Agreement relating to the acquisition of Cable & Wireless Communications (Holdings) PLC, dated as of May 30, 2000, between NTL Communications Limited, NTL Business Limited, NTL Communications Corp., Chase Manhattan PLC and Morgan Stanley Dean Witter Limited, Chase Manhattan International Limited (Incorporated by reference to the 2000 Annual Report on Form 10-K, filed by NTL Incorporated on March 30, 2001, File No. 001-16183) 10.3 Credit Agreement, dated March 30, 2001 among NTL Australia Pty Limited and a syndicate of banks jointly led JPMorgan, Barclays Bank, Bank of Scotland, Credit Lyonnais, National Australia Bank and West LB 10.4 Credit Agreement dated 28 March 2000, between NTL Incorporated, NTL Cablecom Holding GmbH, Cablecom (Ostschweiz) AG and Chase Manhattan plc and Morgan Stanley Senior Funding, Inc., as Arrangers and Joint Book Managers, Chase Manhattan International Limited as Agent and Others Term, comprising a Loan Facility and a Revolving Credit Facility 12.1 NTL Communications Corp. Computation of Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends 12.2 NTL Incorporated Computation of Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends 23.1 Consent of Ernst & Young LLP 23.2 Consent of Ernst & Young 23.3 Consent of Arthur Andersen 23.4 Consent of PricewaterhouseCoopers AG 23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)* 24.1 Powers of Attorney (included in signature page) 25.1 Form T-1 Statement of Eligibility of Trustee with respect to the Indenture included as Exhibit 4.28*
- --------------- * To be filed by amendment. EX-4.30.A 2 y49999ex4-30_a.txt AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT 4.30(a) EXECUTION COPY AMENDMENT TO REGISTRATION RIGHTS AGREEMENT AMENDMENT (this "Amendment") dated as of November __, 2000 is by and between Verizon Communications Inc., a Delaware corporation formerly known as Bell Atlantic Corporation ("Verizon"), and NTL Incorporated, a Delaware corporation (the "Company"). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided to such terms in the Registration Rights Agreement referred to below. W I T N E S S E T H: -------------------- WHEREAS, Verizon and the Company are Parties to a Registration Rights Agreement dated as of February 2, 2000 (the "Registration Rights Agreement"); WHEREAS, the Parties to the Registration Rights Agreement desire to amend the Registration Rights Agreement to modify certain provisions; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Verizon and the Company hereby agree as follows: 1. Section 2.1(b) of the Registration Rights Agreement is hereby amended as follows: (a) To delete "December 1, 2000" in the second sentence thereof and insert "April 1, 2001" in its place; and (b) To delete "March 1, 2001" in the second sentence thereof and insert "July 1, 2001" in its place. 2. As amended hereby, the Registration Rights Agreement is hereby ratified and confirmed to be in full force and effect. 3. This Amendment shall be governed, construed and enforced in accordance with the laws of New York applicable to contracts made and to be performed therein. 2 4. This Amendment may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. [Signature Page to Follow] 3 IN WITNESS WHEREOF, each of the Parties hereto has caused this Amendment to be duly executed as of the date first set forth above. Verizon Communications Inc. By:______________________________ Name: Title: NTL Incorporated By:______________________________ Name: Title: EX-4.30.B 3 y49999ex4-30_b.txt AMENDMENT NO.2 TO REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT 4.30(b) EXECUTION COPY SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT AMENDMENT (this "Amendment") dated as of March __, 2001 is by and between Verizon Communications Inc., a Delaware corporation formerly known as Bell Atlantic Corporation ("Verizon"), and NTL Incorporated, a Delaware corporation (the "Company"). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided to such terms in the Registration Rights Agreement referred to below. W I T N E S S E T H: -------------------- WHEREAS, Verizon and the Company are Parties to a Registration Rights Agreement dated as of February 2, 2000, as amended as of November 30, 2000, (the "Registration Rights Agreement"); WHEREAS, the Parties to the Registration Rights Agreement desire to amend the Registration Rights Agreement to modify certain provisions; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Verizon and the Company hereby agree as follows: 1. Section 2.1(b) of the Registration Rights Agreement is hereby amended to delete "April 1, 2001" in the second sentence thereof and insert "May 1, 2001" in its place. 2. As amended hereby, the Registration Rights Agreement is hereby ratified and confirmed to be in full force and effect. 3. This Amendment shall be governed, construed and enforced in accordance with the laws of New York applicable to contracts made and to be performed therein. 4. This Amendment may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. [Signature Page to Follow] 2 IN WITNESS WHEREOF, each of the Parties hereto has caused this Amendment to be duly executed as of the date first set forth above. Verizon Communications Inc. By:______________________________ Name: Title: NTL Incorporated By:______________________________ Name: Title: EX-4.30.C 4 y49999ex4-30_c.txt AMENDMENT NO. 3 TO REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT 4.30(c) EXECUTION COPY THIRD AMENDMENT TO REGISTRATION RIGHTS AGREEMENT AMENDMENT (this "Amendment") dated as of June __, 2001, is by and between Verizon Communications Inc., a Delaware corporation formerly known as Bell Atlantic Corporation ("Verizon"), and NTL Incorporated, a Delaware corporation (the "Company"). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided to such terms in the Registration Rights Agreement referred to below. W I T N E S S E T H: -------------------- WHEREAS, Verizon and the Company are Parties to a Registration Rights Agreement dated as of February 2, 2000, as amended as of November 30, 2000 and as of March 31, 2001 (the "Registration Rights Agreement"); WHEREAS, the Parties to the Registration Rights Agreement desire to amend the Registration Rights Agreement to modify certain provisions; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Verizon and the Company hereby agree as follows: 1. Section 2.1(b) is hereby amended by adding at the end of the first sentence thereof, after the word "Statement", the words "as soon as reasonably practicable following receipt of written notice from Bell Atlantic pursuant to Section 2.1(c)." Section 2.1(b) is hereby further amended by deleting the words "by May 1, 2001" appearing in the second sentence thereof. Section 2.1(b) is hereby further amended by deleting the words "no later than July 1, 2001" appearing in the second sentence thereof and inserting in place thereof the words "as soon as reasonably practicable". Section 2.1(b) is hereby further amended by deleting the last sentence thereof in its entirety. 2. Section 2.1 is hereby amended by adding a new Section 2.1(c), which reads as follows: 2 "(c) Notwithstanding the provisions of Section 2.1(b), the obligation of the Company to use its best efforts to file or confidentiality submit the Exchangeable Registration Statement shall arise only if the Bell Atlantic has determined in good faith, and given to the Company written notice of such determination that such Exchangeable Registration Statement is then required as a result of: (i) the interpretation by the SEC of the Securities Act and/or the regulations promulgated thereunder; or (ii) any change in, or amendment to, the Securities Act and/or the regulations promulgated thereunder." 3. Section 2.1 is hereby amended by adding a new Section 2.1(d), which reads as follows: "(d) The Company hereby covenants that, during the period beginning on the date hereof and ending not earlier than May 31, 2002, it will timely file any and all reports required to be filed by it under the Securities Act and the Exchange Act or otherwise publicly provide such information as may be necessary for the Company to meet the requirements of paragraph (c) of Rule 144 so as to enable Verizon to resell Registerable Securities without registration under the Securities Act pursuant to the exemption provided by (i) Rule 145(d)(2) under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar Rule or Regulation hereafter adopted by the SEC." 4. As amended hereby, the Registration Rights Agreement is hereby ratified and confirmed to be in full force and effect. 5. This Amendment shall be governed, construed and enforced in accordance with the laws of New York applicable to contracts made and to be performed therein. 6. This Amendment may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. [Signature Page to Follow] 3 IN WITNESS WHEREOF, each of the Parties hereto has caused this Amendment to be duly executed as of the date first set forth above. Verizon Communications Inc. By:______________________________ Name: Title: NTL Incorporated By:______________________________ Name: Title: EX-10.3 5 y49999ex10-3.txt CREDIT AGREEMENT 1 Exhibit 10.3 SUBSCRIPTION AGREEMENT NTL AUSTRALIA PTY LIMITED (AS BORROWER) EACH PARTY LISTED IN SCHEDULE 1 (AS A GUARANTOR) EACH PARTY LISTED IN SCHEDULE 2 (AS A SUBSCRIBER) CHASE SECURITIES AUSTRALIA LIMITED (AS AGENT) CHASE CAPITAL MARKETS FIDUCIARY SERVICES AUSTRALIA LIMITED (AS SECURITY TRUSTEE) AND CHASE SECURITIES AUSTRALIA LIMITED (AS ARRANGER) (FREEHILLS LOGO) MLC Centre Martin Place Sydney NSW 2000 Australia Telephone 61 2 9225 5000 Facsimile 61 2 9322 4000 www.freehills.com.au DX361 Sydney SYDNEY MELBOURNE PERTH CANBERRA BRISBANE HANOI HO CHI MINH CITY SINGAPORE Correspondent Offices JAKARTA KUALA LUMPUR Liability limited by the Solicitors' Limitation of Liability Scheme, approved under the Professional Standards Act 1994 (NSW) Reference CJR:BKT:36A 2 NTL Subscription Agreement - -------------------------------------------------------------------------------- TABLE OF CONTENTS Clause Page 1 DEFINITIONS AND INTERPRETATION 1 1.1 Definitions 1 1.2 Interpretation 20 1.3 Business Day 21 1.4 Accounting Standards 21 1.5 Issue of Debentures 22 2 CONDITIONS PRECEDENT 22 2.1 Conditions precedent to initial Funding Portion 22 2.2 Conditions precedent to all Funding Portions 24 2.3 Certified copies 25 2.4 Subscriber's conditions precedent 25 2.5 Conditions subsequent 25 3 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY 25 3.1 Provision of Commitment 25 3.2 Several obligations and rights of Subscribers 26 3.3 Purpose 26 3.4 Cancellation of Commitment during Availability Period 27 3.5 Cancellation at end of Availability Period 27 3.6 Prepayment 27 3.7 Prepayment date 28 4 FUNDING PROCEDURES 28 4.1 Delivery of Funding Notice 28 4.2 Requirements for a Funding Notice 28 4.3 Irrevocability of Funding Notice 29 4.4 Number of Funding Portions 29 4.5 Amount of Funding Portions 29 4.6 Selection of Funding Periods 29 4.7 Determination of Funding Rate 30 5 TRANCHE A FACILITY (REVOLVING FACILITY) 30 5.1 Subscription for, and issue of Debentures 30 5.2 Payment to Borrower 31 5.3 Repayment 31 5.4 Interest 31 5.5 Updating Register 32 5.6 First Funding Portion 32 6 TRANCHE B FACILITY (AMORTISING FACILITY) 32 6.1 Subscription for, and issue of Debentures 32 6.2 Payment to Borrower 33 6.3 Repayment 33 6.4 Interest 33 - -------------------------------------------------------------------------------- page 1 3 NTL Subscription Agreement 6.5 Scheduled repayment and reduction in Tranche B Commitment 34 6.6 First Funding Portion 34 7 MARGIN AND FEES 34 7.1 Commitment Fee 34 7.2 Other fees 35 7.3 Calculation of Margin and Commitment Fee 35 7.4 Agency Fee 36 8 RELIQUEFACTION BILLS 36 8.1 Reliquefaction Bills 36 8.2 Nature of Reliquefaction Bills 36 8.3 Drawing of Reliquefaction Bills 36 8.4 Subscriber's dealing 36 8.5 Bills of Exchange Act 36 8.6 Stamp duty on Reliquefaction Bills 36 8.7 Indemnity in respect of Reliquefaction Bills 36 8.8 Reduction in Borrower's obligation 37 9 PAYMENTS 37 9.1 Manner of payment 37 9.2 Payments on a Business Day 37 9.3 Appropriation of payments 37 9.4 Payments in gross 38 9.5 Additional payments 38 9.6 Taxation deduction procedures 38 9.7 Amounts payable on demand 39 9.8 Distribution by Agent 39 9.9 Non-receipt of funds by the Agent from the Borrower 39 9.10 Non-receipt of Funding Portion by the Agent from a Subscriber 40 9.11 Redistribution of payments 40 10 REPRESENTATIONS AND WARRANTIES 41 10.1 Representations and warranties 41 10.2 Survival and repetition of representations and warranties 45 10.3 Reliance by Finance Parties 45 11 UNDERTAKINGS 45 11.1 Term of undertakings 45 11.2 Provision of information and reports 46 11.3 Proper accounts 47 11.4 Notices to the Agent 47 11.5 Compliance with statutes and Authorisations 47 11.6 Conduct of business 48 11.7 Payment of Taxes and outgoings 48 11.8 Material Documents 48 11.9 Compliance with Material Documents 49 11.10 Enforcement of Material Documents 49 11.11 Negative pledge and disposal of assets 49 11.12 Finance Debt 50 - -------------------------------------------------------------------------------- page 2 4 NTL Subscription Agreement 11.13 No change to business 50 11.14 Disposal of Assets 50 11.15 Loans, guarantees and financial accommodation 50 11.16 Restrictions on dealings 50 11.17 Restrictions on Distributions 50 11.18 Undertakings regarding Secured Property 51 11.19 Insurance 52 11.20 Hedging 54 11.21 Financial undertakings 54 11.22 Debenture Trust Deed 55 12 EVENTS OF DEFAULT 55 12.1 Events of Default 55 12.2 Effect of Event of Default 58 12.3 Review Event 58 12.4 Material Document Default 59 12.5 Financial Ratios Default 59 13 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION 59 13.1 Increased costs 59 13.2 Procedure for claim 60 13.3 Prepayment on increased cost 61 13.4 Illegality 61 14 GUARANTEE 62 14.1 Guarantee 62 14.2 Payment 62 14.3 Securities for other moneys 62 14.4 Amount of Secured Moneys 62 14.5 Proof by Agent 63 14.6 Avoidance of payments 63 14.7 Indemnity for avoidance of Secured Moneys 63 14.8 No obligation to marshal 64 14.9 Non-exercise of Guarantors' rights 64 14.10 Principal and independent obligation 64 14.11 Suspense account 65 14.12 Unconditional nature of obligations 65 14.13 No competition 67 14.14 Continuing guarantee 68 14.15 Variation 68 14.16 Judgments 68 14.17 Additional Guarantors 68 14.18 Conditions 69 15 INDEMNITIES 69 15.1 General indemnity 69 15.2 Foreign currency indemnity 70 15.3 Conversion of currencies 71 15.4 Continuing indemnities and evidence of loss 71 - -------------------------------------------------------------------------------- page 3 5 NTL Subscription Agreement 16 TAX, COSTS AND EXPENSES 71 16.1 Tax 71 16.2 Costs and expenses 72 16.3 GST 72 17 INTEREST ON OVERDUE AMOUNTS 73 17.1 Payment of interest 73 17.2 Accrual of interest 73 17.3 Rate of interest 73 18 RELATIONS BETWEEN THE AGENT AND THE SUBSCRIBERS 73 18.1 Appointment of the Agent 73 18.2 Event of Default and Agent's Power 74 18.3 Discretion of the Agent 74 18.4 Borrower not concerned to enquire 74 18.5 Liability of the Agent 75 18.6 Delegation 75 18.7 Agent entitled to rely 75 18.8 Agent not regarded as having notice of Event of Default 75 18.9 Rights of the Agent as a Subscriber 76 18.10 Indemnity by the Subscribers 76 18.11 Agent to forward copies 77 18.12 Independent credit decision by the Subscribers 77 18.13 No monitoring 77 18.14 Information 77 18.15 Agent not responsible for obligations of other parties 77 18.16 Resignation and removal of the Agent 78 18.17 Amendment of Transaction Documents 78 18.18 Institution and joining of actions 78 18.19 Identity of Subscribers 79 19 ASSIGNMENT AND SUBSTITUTION 79 19.1 Assignment by Transaction Party 79 19.2 Assignment or substitution by Subscribers 79 19.3 Substitution certificate 80 19.4 References to a Subscriber 80 19.5 Reduction of Commitments 81 19.6 Assist transfer or assignment 81 19.7 Participation permitted 81 19.8 Securitisation permitted 81 19.9 Lending Office 82 19.10 No increase in costs 82 20 SALE AND DISTRIBUTION OF THE DEBENTURES 82 20.1 Arranger and Subscriber undertakings 82 20.2 Public offer provisions 83 20.3 Debenture Trust Deed and Master Debentures 84 - -------------------------------------------------------------------------------- page 4 6 NTL Subscription Agreement 21 SAVING PROVISIONS 85 21.1 No merger of security 85 21.2 Exclusion of moratorium 85 21.3 Conflict 85 21.4 Consents 85 21.5 Principal obligations 86 21.6 Non-avoidance 86 21.7 Set-off authorised 86 21.8 Certificates of Agent 86 21.9 No reliance or other obligations and risk assumption 87 21.10 Power of Attorney 87 21.11 Opinion of a Finance Party 87 22 GENERAL 88 22.1 Confidential information 88 22.2 Performance by Agent of obligations 88 22.3 Transaction Party to bear cost 88 22.4 Notices 89 22.5 Governing law and jurisdiction 90 22.6 Prohibition and enforceability 91 22.7 Waivers 91 22.8 Variation 91 22.9 Cumulative rights 91 22.10 Attorneys 92 SCHEDULE 1 - GUARANTORS 93 SCHEDULE 2 - SUBSCRIBERS 94 SCHEDULE 3 - PRE-FUNDING CERTIFICATE 100 SCHEDULE 4 - DIRECTOR'S CERTIFICATE 102 SCHEDULE 5 - FUNDING NOTICE 103 SCHEDULE 6 - COMPLIANCE CERTIFICATE 105 SCHEDULE 7 - GROUP STRUCTURE DIAGRAM 106 EXECUTED AS AN AGREEMENT: 107 ANNEXURE A - GUARANTEE ASSUMPTION AGREEMENT - -------------------------------------------------------------------------------- page 5 7 NTL Subscription Agreement 1 INTERPRETATION 111 2 GUARANTEE 111 3 REPRESENTATIONS AND WARRANTIES 112 4 STATUS OF GUARANTOR 112 5 GOVERNING LAW 112 6 BENEFIT OF DEED POLL 112 7 ADDRESS FOR NOTICES 112 8 ATTORNEYS 113 ANNEXURE B - SUBSTITUTION CERTIFICATE 1 INTERPRETATION 115 1.1 Incorporated definitions 115 1.2 Definitions 115 1.3 Interpretation 115 2 SUBSTITUTION 116 2.1 Effect of substitution 116 2.2 Substitute Subscriber a Subscriber 116 2.3 Preservation of accrued rights 116 2.4 Nature of rights and obligations 116 3 ACKNOWLEDGMENTS 117 3.1 Copies of Transaction Documents 117 3.2 Acknowledgment to Agent 117 4 PAYMENTS 117 4.1 Payments by Agent 117 4.2 As between Subscribers 117 - -------------------------------------------------------------------------------- page 6 8 NTL Subscription Agreement 5 OUTSTANDING BILLS 117 6 WARRANTY 117 7 NOTICES 118 8 GENERAL 118 9 ATTORNEYS 118 - -------------------------------------------------------------------------------- page 7 9 - -------------------------------------------------------------------------------- THIS SUBSCRIPTION AGREEMENT is made on 2001 between the following parties: 1. NTL AUSTRALIA PTY LIMITED ACN 086 048 562 of Level 3, 655 Pacific Highway, St Leonards, NSW, 2065 (BORROWER) 2. EACH PARTY LISTED IN SCHEDULE 1 (each a GUARANTOR) 3. EACH PARTY LISTED IN SCHEDULE 2 (each a SUBSCRIBER) 4. CHASE SECURITIES AUSTRALIA LIMITED ACN 002 888 011 of Level 25, Grosvenor Place, 225 George Street, Sydney, NSW, 2000 (AGENT) 5. CHASE CAPITAL MARKETS FIDUCIARY SERVICES AUSTRALIA LIMITED ACN 002 916 396 of Level 35, AAP Centre, 259 George Street, Sydney, NSW, 2000 (SECURITY TRUSTEE) 6. CHASE SECURITIES AUSTRALIA LIMITED ACN 002 888 011 of Level 25, Grosvenor Place, 225 George Street, Sydney, NSW, 2000 (ARRANGER) RECITALS A. The Borrower and each Guarantor have requested the Subscribers to make available to the Borrower financial accommodation in the form of subscription for Debentures and to subscribe for Debentures. B. The Subscribers have agreed to provide financial accommodation to the Borrower in the form of subscription for Debentures and to subscribe for Debentures up to a maximum amount of $350,000,000 on the terms and conditions contained in this agreement. THE PARTIES AGREE in consideration of, among other things, the mutual promises contained in this agreement and the payment of $10 by the Finance Parties to each Guarantor. - -------------------------------------------------------------------------------- 1 DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS In this agreement: ABC means The Australian Broadcasting Corporation, a corporation established by the Australian Broadcasting Corporation Act 1983; - -------------------------------------------------------------------------------- page 1 10 NTL Subscription Agreement ABC ANALOGUE TSA means the Transmission Services Agreement dated 24 March 1999 between ABC and the Borrower (then known as National Transmission Company Pty Limited); ABC DIGITAL TSA means the Digital Terrestrial Television Transmission Services Agreement dated 6 December 2000 between ABC, the Borrower and NTL Incorporated; ABC TRIPARTITE DEED means the ABC Tripartite Deed to be entered into between ABC, the Borrower and the Security Trustee in accordance with clause 2.5; ACCOUNTING STANDARDS means the accounting standards and practices determined under clause 1.4; ACQUISITION AGREEMENT means the Acquisition Agreement (for the National Transmission Network) dated 18 March 1999 between the Commonwealth of Australia, NTL Australia Pty Limited (now NTL Australia Holdings Pty Limited), the Borrower (then known as National Transmission Company Pty Limited), NTL Communications Corporation and NTL Incorporated; AGGREGATE COMMITMENT means: (a) the Aggregate Tranche A Commitment; and (b) the Aggregate Tranche B Commitment; AGGREGATE TRANCHE A COMMITMENT means the maximum amount agreed to be provided by the Tranche A Subscribers under the Tranche A Facility, being: (a) until the Conditions Subsequent Satisfaction Date, $50,000,000; and (b) after the Conditions Subsequent Satisfaction Date, $150,000,000, or such other amount determined to be the Aggregate Tranche A Commitment under this agreement; AGGREGATE TRANCHE B COMMITMENT means the maximum amount agreed to be provided by the Tranche B Subscribers under the Tranche B Facility, being: (a) until the Conditions Subsequent Satisfaction Date, $150,000,000; and (b) after the Conditions Subsequent Satisfaction Date, $200,000,000, or such other amount determined to be the Aggregate Tranche B Commitment under this agreement; ASSOCIATE has the meaning given to that term in section 128F(9) of the Tax Act; ATTORNEY means an attorney appointed under a Transaction Document; AUTHORISATION includes: (a) any consent, registration, filing, agreement, notarisation, certificate, licence, approval, permit, authority or exemption from, by or with a Governmental Agency; or (b) any consent or authorisation regarded as given by a Governmental Agency due to the expiration of the period specified by a statute within which the Governmental Agency should have acted if it wished to proscribe or limit anything already lodged, registered or notified under that statute; AVAILABILITY PERIOD means, in relation to a Facility, the period commencing on the date of this agreement and ending at 2.00 pm (Sydney time) on the earlier of: - -------------------------------------------------------------------------------- page 2 11 NTL Subscription Agreement (a) the Termination Date for the Facility; and (b) the date on which the Aggregate Commitment for that Facility is cancelled in full; BASE RATE means, on any Interest Set Date in respect of a Funding Period for a Funding Portion: (a) the rate percent per annum determined by the Agent which is equal to the "bid rate" quoted on the page entitled "BBSY" of the Reuters Monitor System at or about 10.15am (Sydney time) on that Interest Set Date for bank accepted Bills which have a tenor equal to or most closely approximating the Funding Period of the Funding Portion commencing on that Interest Set Date; or (b) if in respect of any Interest Set Date, the Base Rate cannot be determined in accordance with paragraph (a) of this definition, the rate percent per annum determined by the Agent as the average of the rates quoted to the Agent by at least 3 of the Reference Banks for the purchase of Bills accepted by the Reference Banks which have a tenor equal to or closely approximating the Funding Period of the Funding Portion and a face value amount equal to or closely approximating the amount of the Funding Portion; or (c) if in respect of any Interest Set Date, the Base Rate cannot be determined in accordance with paragraphs (a) or (b) of this definition, the rate percent per annum determined by the Agent in good faith to be the appropriate rate having regard to comparable indices then available in the then current bill market and then (if necessary) rounding up the resultant figure to four decimal places; BILL means a bill of exchange as defined in the Bills of Exchange Act 1909 (Cth), but does not include a cheque; BORROWER GROUP means the Borrower and its Subsidiaries; BUSINESS means the business of directly or indirectly owning and/or operating the Transmission Facilities, and any of the following: (a) directly or indirectly owning and/or operating any telephone, cable transmission or telecommunications facilities; and (b) directly or indirectly providing a service, product or content or related activity used in relation to the business referred to above; BUSINESS DAY means: (a) for the purposes of clause 22.4, a day on which banks are open for business in the city where the notice or other communication is received excluding a Saturday, Sunday or public holiday; and (b) for all other purposes, a day on which banks are open for business in Sydney excluding a Saturday, Sunday or public holiday; BUSINESS PLAN means the 8 year financial model prepared by the Borrower and set out in the Information Memorandum; COLLATERAL SECURITY means any present or future Encumbrance, Guarantee or other document or agreement created or entered into by a Transaction Party or any other person as security for the payment of any of the Secured Moneys; - -------------------------------------------------------------------------------- page 3 12 NTL Subscription Agreement COMMITMENT means in relation to a Subscriber: (a) the Tranche A Commitment of the Subscriber; and (b) the Tranche B Commitment of the Subscriber; COMMITMENT FEE means the fee calculated and payable under clause 7.1 and 7.3; COMMONWEALTH TRIPARTITE DEED means the Tripartite Deed to be entered into between the Commonwealth of Australia, NTLH, the Borrower, the Agent and the Security Trustee in accordance with clause 2.5; COMPLIANCE CERTIFICATE means a certificate in the form of Schedule 6; CONDITIONS SUBSEQUENT SATISFACTION DATE means the first date on which each of the following conditions have been satisfied to the complete satisfaction of the Agent: (a) each of the Commonwealth Tripartite Deed, the SBS Tripartite Deed and the ABC Tripartite Deed have been executed and delivered by all parties to them (other than the Financing Parties) in form and substance acceptable to the Agent; (b) each Deed of Charge and the Share Mortgage has been executed and delivered by all parties to them (other than the Finance Parties) in form and substance acceptable to the Agent and: (1) duly stamped or, if the Agent permits, sufficient Same Day Funds or other provision to meet all liabilities to Tax on or in respect of them; and (2) where registrable, in registrable form together with all executed documents necessary to effect registration of them; and (c) the Agent has received a legal opinion from Freehills in form and substance acceptable to it in relation to the execution by the Transaction Parties of the documents referred to in paragraphs (a) and (b) above; CONTESTED TAX means a Tax payable by a Transaction Party where the Transaction Party: (a) in good faith and in accordance with proper procedures, is contesting its liability to pay that Tax; (b) is not required by applicable law to pay that Tax before contesting its liability to pay the Tax; and (c) has satisfied the Agent that it has set aside sufficient reserves of liquid assets to pay that Tax and any fine, penalty or interest payable if the contest is unsuccessful; CORPORATIONS LAW means the Corporations Law of each state or territory of Australia; CORPORATIONS REGULATIONS means the Corporations Regulations of each state or territory of Australia; DEBENTURE has the meaning as defined in the Debenture Trust Deed; DEBENTURE HOLDER has the meaning as defined in the Debenture Trust Deed; DEBENTURE TRUST DEED means the debenture trust deed dated on or about the date of this agreement between the Borrower and the Security Trustee; - -------------------------------------------------------------------------------- page 4 13 NTL Subscription Agreement DEEDS OF CHARGE means each of: (a) each charge to be granted by the Borrower in accordance with clause 2.5 and identified as a Deed of Charge for the purposes of this agreement and the other Transaction Documents; and (b) the Guarantee Facility Charge; DEED OF FINANCIAL SECURITY means the Deed of Financial Security issued by The Chase Manhattan Bank in favour of the Australian Communications Authority dated 1 March 2001 pursuant to a Letter of Offer dated 28 February 2001 from The Chase Manhattan Bank to the Borrower; DISTRIBUTION means, in relation to a Transaction Party, if that Transaction Party: (a) declares or pays any dividend, distribution, Finance Charge (other than a Finance Charge payable to a Finance Party) or other amount on any Marketable Securities in it; or (b) applies any of its property or assets to, or set aside any sum for, the purchase, redemption or other reduction of, or for any other distribution in respect of, any Marketable Securities in it; or (c) reduces or attempts to reduce its capital; or (d) proposes to redeem or buy-back or makes an offer to redeem or buy-back any of its shares whether under an equal access scheme, an on-market buy-back, an employee share scheme buy-back or a selective buy-back (each as defined in the Corporations Law; or (e) pays any principal, interest or other amounts of any Subordinated Debt; or (f) pays any fee or charge under any management or technical assistance agreements or arrangements with any Related Corporation (including, without limitation, Management Fees but excluding, for the avoidance of doubt, expenses referred to in paragraph (f)(1) of the definition of Permitted Finance Debt); DOLLARS, A$ and $ means the lawful currency of the Commonwealth of Australia; EBITDA means in respect of a period, the Operating Profit of the Borrower Group for that period shown in the consolidated profit and loss statement of the Borrower Group for the period but adjusted so as to reflect the amount before accounting for: (a) Interest Expense of the Borrower Group in respect of the period; (b) taxation of the Borrower Group in respect of the period; (c) depreciation and amortisation expense of the Borrower Group in respect of the period; (d) any amounts in respect of the period for items of a non-recurring nature of the Borrower Group; ENCUMBRANCE means an interest or power: (a) reserved in or over an interest in any asset including, but not limited to, any retention of title; or (b) created or otherwise arising in or over any interest in any asset under a bill of sale, mortgage, charge, lien, pledge, trust or power, - -------------------------------------------------------------------------------- page 5 14 NTL Subscription Agreement by way of security for the payment of a debt, any other monetary obligation or the performance of any other obligation, and includes, but is not limited to, any agreement to grant or create any of the above; ENVIRONMENTAL LAW means any law, whether statute or common law, concerning environmental matters, and includes but is not limited to law concerning land use, development, pollution, waste disposal, toxic and hazardous substances, conservation of natural or cultural resources and resource allocation including any law relating to exploration for, or development or exploitation of, any natural resource; ENVIRONMENTAL LIABILITIES means any obligation, expense, penalty or fine under Environmental Law which could be imposed upon a Finance Party or any occupier of the Secured Property as a result of activities carried on during the ownership or occupation of the property by a Transaction Party, or by the Transaction Party's predecessors in title or by any previous occupier of the Secured Property; EVENT OF DEFAULT means any event specified in clause 12.1; EXCLUDED TAX means a Tax imposed by any jurisdiction on the net income of a Finance Party but not a Tax: (a) calculated on or by reference to the gross amount of any payment (without allowance for any deduction) derived by a Finance Party under a Transaction Document or any other document referred to in a Transaction Document; or (b) imposed as a result of a Finance Party being considered a resident of or organised or doing business in that jurisdiction solely as a result of it being a party to a Transaction Document or any transaction contemplated by a Transaction Document; EXCLUDED SUBSIDIARY means, at any time, each Subsidiary of the Borrower at that time which: (a) has net assets of $500,000 or less; and (b) has net assets which do not, when added to the net assets of all other Subsidiaries of the Borrower which have not executed a Guarantee Assumption Agreement and a charge under clause 14.17 at or before that time, exceed $5,000,000; EXPOSURE means at any time: (a) in respect of a Subscriber, the total of all amounts due for payment, or which will or may become due for payment in connection with any Transaction Document (including any transactions contemplated by it) to that Subscriber; and (b) in respect of a Hedge Counterparty, the amount for which the Borrower would be liable at that time to that Hedge Counterparty in respect of each Hedging Agreement as if it had at that time been closed out or terminated, calculated (whether or not the Hedging Agreement is in fact in the form of, or based on, the ISDA Master Agreement) on a net basis under section 6(e)(i)(3) of the ISDA Master Agreement (unless the Hedging Agreement nominates section 6(e)(i)(4) of the ISDA Master Agreement to apply on termination, in which event that provision will apply), plus (without double counting) the aggregate of all amounts which have fallen due for payment - -------------------------------------------------------------------------------- page 6 15 NTL Subscription Agreement to the Hedge Counterparty under the Hedging Agreement but not been paid; FACILITY means: (a) the Tranche A Facility; and (b) the Tranche B Facility; FEE LETTERS means: (a) the Commitment Letter dated 5 February 2001 issued by the Arranger to the Borrower and accepted and agreed by the Borrower; (b) the Fee Letter dated 16 February 2001 issued by the Arranger to the Borrower and accepted and agreed by the Borrower; (c) the Agency Fee Letter dated on or about the date of this agreement issued by the Agent and accepted and agreed by the Borrower; (d) the Security Trustee fee letter dated on or about the date of this agreement issued by the Security Trustee and accepted and agreed by the Borrower; FINANCE CHARGE means, in respect of the Borrower Group, interest and amounts in the nature of interest (without double counting), or having a similar purpose or effect to interest, which in accordance with Accounting Standards would be included in the consolidated profit and loss statement of the Borrower Group as having been paid or incurred by the Borrower Group and includes, but is not limited to: (a) any dividend payable on any share the obligations in respect of which constitute Finance Debt of the Borrower Group; (b) any discount on any Bills (other than Reliquefaction Bills) or bonds, notes or other instruments drawn, accepted or endorsed by the Borrower Group; (c) any line, facility, acceptance, discount, guarantee or other fees and amounts incurred on a regular or recurring basis payable in relation to Finance Debt of the Borrower Group; FINANCE DEBT means any debt or other monetary liability in respect of moneys borrowed or raised or any financial accommodation whatever including, but not limited to, under or in respect of any: (a) Bill, bond, debenture, note or similar instrument; (b) acceptance, endorsement or discounting arrangement; (c) Guarantee; (d) finance or capital Lease; (e) deferred purchase price (for more than 90 days) of any asset or service; (f) amount of capital and premium payable on or in connection with the redemption of any preference shares or any amount of purchase price payable for or in connection with the acquisition of redeemable preference shares; (g) net liability or other net exposure in respect of any interest rate swaps, foreign currency hedges or other derivatives, and irrespective of whether the debt or liability: - -------------------------------------------------------------------------------- page 7 16 NTL Subscription Agreement (h) is present or future; (i) is actual, prospective, contingent or otherwise; (j) is at any time ascertained or unascertained; (k) is owed or incurred alone or severally or jointly or both with any other person; or (l) comprises any combination of the above; FINANCE LEASE means a Lease constituting, or accounted for in a similar way to, a finance lease or capitalised lease under the Accounting Standards; FINANCE LEASE CHARGE means the portion of hire and rental payments under a Finance Lease which exceeds the reduction of principal indebtedness attributable to that Finance Lease resulting from those payments and which in accordance with the Accounting Standards would be included in the consolidated profit and loss statement of the Borrower Group as having been paid or incurred by the Borrower Group; FINANCE PARTY means each of the following: (a) the Agent; (b) each Subscriber; (c) the Arranger; (d) the Security Trustee; (e) each Hedge Counterparty; and (f) the Guarantee Facility Provider; FINANCIAL REPORT has the same meaning given to that term in the Corporations Law; FUNDING DATE means the date on which a Funding Portion is, or is to be, provided or regarded as provided to the Borrower under this agreement by the subscription for Debentures, and by the paying up of unpaid amounts in relation to those Debentures; FUNDING NOTICE means a notice given, or to be given, under clauses 4.1 and 4.2; FUNDING PERIOD means a period for the fixing of interest rates for, and the funding of, a Funding Portion being a period of time selected under clause 4.6; FUNDING PORTION means, in relation to a Facility, each portion of the Aggregate Commitment provided under this agreement in relation to that Facility, by the subscription for Debentures, and by the paying up of unpaid amounts in relation to those Debentures, which has the same Funding Date and the same Funding Period; FUNDING RATE means in respect of an Interest Set Date for a Funding Period in respect of a Funding Portion under a Facility the rate per cent per annum which is the aggregate of: (a) the Margin for that Facility; and (b) the Base Rate on that Interest Set Date for that Funding Period; GEARING RATIO means, on any Relevant Date the ratio of: (a) Total Senior Debt on the Relevant Date; to - -------------------------------------------------------------------------------- page 8 17 NTL Subscription Agreement (b) EBITDA for the quarter ending on the Relevant Date multiplied by four; GOVERNMENTAL AGENCY means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity; GST means the goods and services tax levied under A New Tax System (Goods and Services Tax) Act 1999 (GST ACT); GROUP STRUCTURE DIAGRAM means the group structure diagram contained in Schedule 7 as amended or updated by delivery of a new diagram to the Agent from time to time in accordance with clause 11.2(g); GUARANTEE means any guarantee, suretyship, letter of credit, legally binding letter of comfort or any other obligation (whatever called and of whatever nature): (a) to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of; (b) to indemnify any person against the consequences of default in the payment of; or (c) to be responsible for, any debt or monetary liability of another person or the assumption of any responsibility or obligation in respect of the insolvency or the financial condition of any other person; GUARANTEE ASSUMPTION AGREEMENT means an agreement in the form of annexure A; GUARANTEE FACILITY CHARGE means the fixed and floating charge entitled Guarantee Facility Charge to be granted by the Borrower to the Security Trustee after the date of this agreement in relation to the Guarantee Facility as contemplated by clause 2.5; GUARANTEE FACILITY COMMITMENT means, at any time, the maximum amount of accommodation agreed to be provided by the Guarantee Facility Provider at that time under the Guarantee Facility, and which must not exceed $10,000,000 at any time; GUARANTEE FACILITY PROVIDER means National Australia Bank Limited; GUARANTEE FACILITY means the performance guarantee dated issued on 12 December 2000 by the Guarantee Facility Provider at the request of the Borrower in favour of ABC in respect of the Borrower's obligations under the ABC Digital TSA; GUARANTOR means: (a) each party specified in Schedule 1; and (b) upon its execution of a Guarantee Assumption Agreement, any person who executes a Guarantee Assumption Agreement; HEDGING AGREEMENT means an interest rate hedge agreement entered into with a Subscriber under clause 11.20, including any master agreement and any transaction or confirmation under it; HEDGE COUNTERPARTY means each Subscriber which is a counterparty to a Hedging Agreement with the Borrower; - -------------------------------------------------------------------------------- page 9 18 NTL Subscription Agreement INFORMATION MEMORANDUM means the Information Memorandum dated February 2001 prepared by the Agent on the basis of information provided by the Borrower to assist with the syndication of the Facility; INITIAL DEBENTURES means, in relation to a Facility, the initial Debentures issued in relation to that Facility to the initial Debenture Holders on the first Funding Portion being provided under that Facility; INTANGIBLE ASSETS means all assets which are: (a) future tax benefits, patents, trade marks, goodwill; and (b) any other assets which in accordance with Accounting Standards are regarded as intangible assets; INTEREST COVER RATIO means: (a) on the first three Relevant Dates after the Signing Date; (1) EBITDA for the quarter ending on the Relevant Date; to (2) Senior Interest for the quarter ending on the Relevant Date; and (b) on any other Relevant Date, the ratio of: (1) EBITDA for the quarter ending on that Relevant Date multiplied by four; to (2) Senior Interest for the 12 month period ending on that Relevant Date; INTEREST EXPENSE means in respect of a period (without double counting), interest and amounts in the nature of interest, or having a similar purpose or effect to interest shown in the most recent consolidated profit and loss statement of the Borrower Group for the period as having been paid or incurred by the Borrower Group for the period and includes, but is not limited to: (a) any dividend payable on any share or stock the obligations in respect of which constitute Finance Debt of the Borrower Group; (b) any discount on any Bills or bonds, notes or other instruments drawn, accepted or endorsed by the Borrower Group; (c) any line, facility, acceptance, discount, guarantee or other fees and amounts incurred on a regular or recurring basis payable in relation to Finance Debt of the Borrower Group; and (d) Finance Lease Charges; and, for the avoidance of doubt, in determining Interest Expense in accordance with this definition, Interest Expense shall be calculated on a gross basis without taking into account any interest income of any member of the Borrower Group; INTEREST PAYMENT DATE means the last day of a Funding Period; INTEREST SET DATE means, in relation to a Funding Period for a Funding Portion, the first day of that Funding Period; KEY ELEMENT means: (a) a Key Element (as defined in the SBS Analogue TSA, the ABC Analogue TSA or the ABC Digital TSA); and - -------------------------------------------------------------------------------- page 10 19 NTL Subscription Agreement (b) the technical characteristics and parameters set out in Schedule 1 to the SBS Analogue TSA Extension or the SBS Digital TSA; LEASE means an agreement or arrangement under which any property is or may be used, operated or managed: (a) by a person other than the owner; or (b) for or on behalf of the owner or another person by a person other than the owner where that last-mentioned person or one of its Related Corporations is required to make or assume minimum periodic payments, including, but not limited to, a lease, charter, hire purchase or hiring arrangement but excluding agreements under which the manager of a joint venture on behalf of the joint venturers uses assets owned by the joint venturers; LENDING OFFICE means in respect of a Subscriber the office of that Subscriber set out opposite its name in Schedule 2 or such other office as notified by the Subscriber under this agreement; LEVERAGE RATIO means, on any date, Total Senior Debt of the Borrower Group on that date divided by the aggregate of: (a) Total Senior Debt of the Borrower Group on that date; and (b) Shareholder Equity on that date; MAJORITY SUBSCRIBERS means: (a) if no Event of Default subsists, those Subscribers whose Commitments (added, in the case of the Guarantee Facility Provider, to the Guarantee Facility Commitment of the Guarantee Facility Provider) aggregate more than two thirds of the Aggregate Commitments and the Guarantee Facility Commitment or, if either of the Aggregate Tranche A Commitment or the Aggregate Tranche B Commitment is cancelled, Subscribers to whom more than two thirds of the Principal Outstanding (added, in the case of the Guarantee Facility Provider, to the Guarantee Facility Commitment of the Guarantee Facility Provider) is owing; (b) if an Event of Default subsists, those Subscribers and Hedge Counterparties the exposure to whom exceeds two thirds of the total Exposure to all Subscribers and Hedge Counterparties; MANAGEMENT FEE means any management fee incurred by the Borrower before the Signing Date and interest accrued on that management fee before the Signing Date in respect of management or technical assistance agreements or arrangements with any Related Corporation; MARGIN means the rate per cent per annum calculated under clause 7.3; MARKETABLE SECURITIES has the meaning given to that expression in the Corporations Law; MASTER DEBENTURE has the meaning as defined in the Debenture Trust Deed; MATERIAL ADVERSE EFFECT means, in the opinion of the Agent acting on the instructions of the Majority Subscribers, a material adverse effect upon: (a) the business, assets, operations, material contracts (taken as a whole) or condition, financial or otherwise, of the NTL Parties taken as a whole; - -------------------------------------------------------------------------------- page 11 20 NTL Subscription Agreement (b) the ability of a Transaction Party to perform any of its obligations under a Transaction Document; (c) the validity or enforceability of a Transaction Document; MATERIAL DOCUMENTS means: (a) the Acquisition Agreement; (b) the ABC Analogue TSA; (c) the ABC Digital TSA; (d) the SBS Analogue TSA; (e) the SBS Digital TSA; (f) the SBS Analogue TSA Extension; (g) the Operations and Maintenance Agreement; NTLH means NTL Australia Holdings Pty Limited (ACN 086 459 127); NTL PARTY means each Transaction Party other than NTLH; NTLT means NTL Telecommunications Holdings Pty Limited (ACN 093 979 223); NTL TELECOMMUNICATIONS means NTL Telecommunications Pty Limited (ACN 093 095 419) OFFICER means: (a) in relation to a Transaction Party, a director or a secretary, or a person notified to be an authorised officer, of the Transaction Party; (b) in relation to a Finance Party, any officer, as that expression is defined in the Corporations Law, of that Finance Party, any person whose title includes the word "Director", "Managing Director", "Manager" or "Vice President", and any other person appointed by the Security Trustee to act as its authorised officer for the purposes of this Agreement; and (c) in relation to a Receiver or an Attorney which is a corporation, any officer, as that expression is defined in the Corporations Law, of that Receiver or Attorney; OPERATING PROFIT means, in respect of a period, the operating profit of the Borrower Group which in accordance with Accounting Standards is or would be shown in a consolidated profit and loss statement of the Borrower Group for that period; OPERATIONS AND MAINTENANCE AGREEMENT means the Operations and Maintenance Agreement dated 4 June 1999 between the Borrower (then known as National Transmission Company Pty Limited) and TVNZ (Australia) Pty Limited; OVERDUE MARGIN means 2%; OVERDUE RATE means the aggregate of: (a) the Overdue Margin; and (b) the applicable Margin as at the relevant date on which the Overdue Rate is calculated under clause 17; and - -------------------------------------------------------------------------------- page 12 21 NTL Subscription Agreement (c) the Base Rate on the relevant date on which the Overdue Rate is calculated under clause 17, such Base Rate to be determined by the Agent in accordance with the definition of Base Rate in this clause 1.1 except that in making such determination all references in that definition: (1) to "Funding Period" shall be references to a period of 30 days; (2) to "Interest Set Date" shall be to the relevant date on which the Overdue Rate is calculated under clause 17; (3) to "Funding Portion" shall be to the relevant overdue amount; PAID UP AMOUNT means, in relation to a Debenture, the aggregate of the amounts paid up on that Debenture, as recorded in the Register; PAYMENT CURRENCY means the currency in which any payment is actually made; PERMITTED DISPOSALS means: (a) disposals in the ordinary course of business on arms length terms; (b) a disposal of assets to any Security Provider other than NTLH; (c) a disposal of assets for the purposes of replacement of those assets with assets which are of equal or superior value or capability; (d) disposals of Sites: (1) which in aggregate, have a book value of not more than $25,000,000; and (2) which would not have a Material Adverse Effect; (e) disposals made in connection with a Permitted Securitisation; (f) disposals made with the consent of the Agent (acting on instructions of the Majority Subscribers); (g) disposals of assets otherwise permitted under and in accordance with the Transaction Documents; PERMITTED DISTRIBUTION means a Distribution to the extent that the following conditions remain satisfied: (a) no Event of Default or Potential Event of Default subsists before the Distribution is made; (b) no Event of Default or Potential Event of Default would occur as a result of the Distribution being made, including, without limitation, under clause 11.21; and (c) on the most recent Relevant Date occurring before the Distribution is made the Gearing Ratio for the immediately preceeding quarter was less than 4.50:1 or other level agreed by the Agent acting on the instructions of the Majority Subscribers; (d) immediately after the Permitted Distribution is made the Post Distribution Gearing Ratio would be less than 4.50:1 or other level agreed by the Agent acting on the instructions of the Majority Subscribers; (e) immediately after the Permitted Distribution is made the Leverage Ratio would not be greater than 40%; - -------------------------------------------------------------------------------- page 13 22 NTL Subscription Agreement (f) where the Distribution is a payment of Subordinated Debt on any date (PAYMENT DATE), the proportion of the Distribution applied to pay interest on the Subordinated Debt which has been capitalised after the Signing Date is no more than the ratio of: (1) interest on the Subordinated Debt which has been capitalised after the Signing Date but before the Distribution is made on the Payment Date; to (2) the principal amount of Subordinated Debt on the Payment Date before the Distribution is made (excluding interest on the Subordinated Debt which has been capitalised after the Signing Date); and (g) where the Distribution is a payment of the Management Fee, payment of the Distribution, when added to all previous Distributions which comprised a payment of the Management Fee, will not cause the aggregate of all Distributions applied in payment of the Management Fee to exceed $12,000,000; PERMITTED ENCUMBRANCE means: (a) every lien created by operation of law securing an obligation that is not yet due; (b) every lien for the unpaid balance of purchase moneys under an instalment contract entered into in the ordinary course of business; (c) every lien for the unpaid balance of moneys owing for repairs; (d) each Security; (e) Encumbrances under Material Documents; (f) a banker's lien or right of set off or combination arising by operation of law or practice over money deposited with a banker in the ordinary course of business; (g) the Set Off Letter; (h) in relation to a member of the Borrower Group, each title retention arrangement entered into by that member of the Borrower Group in the ordinary course of business but only for the period that person complies with all its obligations in relation to those title retention arrangements including the payment of all moneys payable when due, (i) Encumbrances securing the repayment of Finance Debt under performance bond facilities which replace the Guarantee Facility which are limited in aggregate to secure an amount not exceeding $10,000,000, which affects or relates to any of the assets of any member of the Borrower Group; PERMITTED FINANCE DEBT means: (a) Subordinated Debt; (b) indebtedness arising under transactional banking facilities and arrangements; (c) indebtedness under finance leases in respect of motor vehicles and office equipment for the Borrower Group up to an aggregate amount at any time of $5,000,000; - -------------------------------------------------------------------------------- page 14 23 NTL Subscription Agreement (d) indebtedness in respect of performance bond facilities which replace the Guarantee Facility up to an aggregate amount of $10,000,000; (e) indebtedness in respect of the Deed of Financial Security up to an aggregate amount of $10,000,000; (f) indebtedness of a member of the Borrower Group to a Related Corporation in respect of expenses incurred by the Related Corporation on behalf of a member of the Borrower Group for goods or personnel provided to a member of the Borrower Group at cost by the Related Corporation where: (1) those expenses were incurred on an arm's length basis and in the ordinary course of business; and (2) payment or reimbursement of those expenses would not constitute a Distribution; (g) indebtedness to Related Corporations in respect of the Management Fee which does not exceed $12,000,000 in aggregate at any time; (h) trade or similar indebtedness incurred in the ordinary course of ordinary business; (i) indebtedness arising pursuant to the Transaction Documents; (j) any other indebtedness incurred with the prior written consent of the Agent; PERMITTED SECURITISATION means: (a) a securitisation of receivables under the SBS Analogue TSA, the SBS Analogue TSA Extension or the ABC Analogue TSA, subject to consent of the Agent acting on the instructions of the Majority Subscribers, such consent not to be unreasonably withheld, where all amounts received by the Borrower in connection with the securitisation are applied as a prepayment first of the Principal Outstanding under the Tranche B Facility and second as a prepayment of Principal Outstanding under the Tranche A Facility; or (b) a securitisation of receivables under any other contract with the consent of the Agent acting on the instructions of all Subscribers; POST DISTRIBUTION GEARING RATIO means, on any date in relation to a Permitted Distribution, the ratio of: (a) Total Senior Debt on that date (including any Funding Portion provided for the purpose of making the relevant Permitted Distribution); to (b) EBITDA for the quarter ending on the last Relevant Date multiplied by four; POTENTIAL EVENT OF DEFAULT means any thing which would be likely to become an Event of Default after the giving of notice, the expiration of time, the satisfaction of any condition, or any combination of the above; POWER means any right, power, authority, discretion or remedy conferred on a Finance Party, or a Receiver or an Attorney by any Transaction Document or any applicable law; PRINCIPAL OUTSTANDING means, in relation to a Facility at any time, the aggregate outstanding paid up amounts of all Debentures issued in relation to that Facility at that time; - -------------------------------------------------------------------------------- page 15 24 NTL Subscription Agreement PRO RATA SHARE means in relation to a Subscriber and a Facility, the Commitment of that Subscriber for that Facility expressed as a percentage of the aggregate Commitments of the Subscribers for that Facility; RECEIVER means a receiver or receiver and manager appointed under a Security; REFERENCE BANK means any one of The Chase Manhattan Bank Limited, Westpac Banking Corporation, National Australia Bank Limited, Commonwealth Bank of Australia and Australia and New Zealand Banking Group Limited or such other person as the Agent may select in consultation with the Borrower; REGISTER has the meaning as defined in the Debenture Trust Deed; RELATED CORPORATION means: (a) in the case of a Finance Party a "related body corporate" as that expression is defined in the Corporations Law (on the basis that the term "subsidiary" in that definition has the same meaning as in this agreement); and (b) in the case of a Transaction Party a "related body corporate" as that expression is defined in the Corporations Law (on the basis that the term "subsidiary" in that definition has the same meaning as in this agreement) and includes a body corporate which is at any time after the date of this agreement a "related body corporate" but ceases to be a "related body corporate" because of an amendment, consolidation or replacement of the Corporations Law; RELEVANT CURRENCY means the currency in which a payment is required to be made under the Transaction Documents and, if not expressly stated to be another currency, is Dollars; RELEVANT DATE means each 31 March, 30 June, 30 September and 31 December; RELEVANT PERIOD means each period listed under the headings "Relevant Period" in clause 11.21; RELIQUEFACTION BILL means a Bill drawn under clause 8; RETIRING SUBSCRIBER means a Subscriber who has assigned or transferred any of its rights or obligations under clause 19.3; REVIEW EVENT has the meaning given to that term in clause 12.3; SAME DAY FUNDS means immediately available and freely transferable funds; SBS means Special Broadcasting Service Corporation, a body corporate preserved and contained in existence by the Special Broadcasting Service Act 1999; SBS ANALOGUE TSA means the Transmissions Services Agreement dated 30 April 1999 between SBS and the Borrower (then known as National Transmission Company Pty Limited); SBS ANALOGUE TSA EXTENSION means the Heads of Agreement - Transmission Services Agreement (Analogue Extension) dated 12 July 2000 between SBS, the Borrower and NTL Incorporated; SBS DIGITAL TSA means the Heads of Agreement - Digital Television Services No. 1 dated 8 March 2000 between SBS, the Borrower and NTL Incorporated; SBS TRIPARTITE DEED means the SBS Tripartite Deed to be entered into between SBS, the Borrower and the Security Trustee in accordance with clause 2.5; - -------------------------------------------------------------------------------- page 16 25 NTL Subscription Agreement SECURED MONEYS means all debts and monetary liabilities of the Transaction Parties (or any of them) to the Finance Parties (or any of them) in any capacity under or in relation to any Transaction Document, irrespective of whether the debts or liabilities: (a) are present or future; (b) are actual, prospective, contingent or otherwise; (c) are at any time ascertained or unascertained; (d) are owed or incurred by or on account of a Transaction Party alone, or severally or jointly with any other person; (e) are owed to or incurred for the account of any Finance Party alone, or severally or jointly with any other person; (f) are owed to any other person as agent or trustee (whether disclosed or not) for or on behalf of any Finance Party; (g) are owed or incurred as principal, interest, fees, charges, taxes, duties or other imposts, damages (whether for breach of contract or tort or incurred on any other ground), losses, costs or expenses, or on any other account; (h) are owed to or incurred for the account of any Finance Party directly or as a result of: (1) the assignment or transfer to any Finance Party of any debt or liability of a Transaction Party (whether by way of assignment, transfer or otherwise); or (2) any other dealing with any such debt or liability; (i) are owed to or incurred for the account of a Finance Party before the date of this agreement, before the date of any assignment of this agreement to any Finance Party by any other person or otherwise; or (j) comprise any combination of the above; SECURED PROPERTY means the property subject to a Security; SECURITY means: (a) the Deeds of Charge; (b) the Share Mortgage; and (c) any other Encumbrance which secures the Secured Money; SECURITY PROVIDER means a person who has granted a Security; SENIOR INTEREST means for any period, all Interest Expense payable under the Total Senior Debt for that period; SET OFF LETTER means the Letter of Set Off from the Borrower to The Chase Manhattan Bank dated 28 February 2001 in relation to the Deed of Financial Security; SHAREHOLDER EQUITY means, on any date the aggregate of: (a) the paid-up share capital of the Borrower Group on that date calculated on a consolidated basis; - -------------------------------------------------------------------------------- page 17 26 NTL Subscription Agreement (b) all Subordinated Debt on that date (excluding any interest which is capitalised after the Signing Date under or in relation to the Subordinated Debt); and (c) any portion of the Management Fee which remains unpaid on that date; SHARE MORTGAGE means the share mortgage to be granted by NTLH to the Security Trustee over all of the shares in the Borrower; SIGNING DATE means the date of this agreement; SITE means a Site as defined in any Material Document; SUBORDINATED DEBT means: (a) all Finance Debt which is subordinated under the Subordination Deed; and (b) other Finance Debt which is subordinated on terms acceptable to the Agent; SUBORDINATION DEED means the Subordination Deed dated on or about the date of this agreement between the Security Trustee, the Borrower and the Subordinated Lender; SUBORDINATED LENDER means NTL Australia SPV, Inc. a company incorporated in Delaware, USA; SUBSCRIBERS means: (a) the Tranche A Subscribers; (b) the Tranche B Subscribers; SUBSIDIARY means in relation to a corporation: (a) a subsidiary of the corporation for the purposes of the Corporations Law; (b) if the corporation has appointed or is in a position to appoint one or more directors of another corporation and that director or those directors are in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a meeting of directors of that other corporation - that other corporation; SUBSTITUTE SUBSCRIBER means a person substituted by a Subscriber under it in clause 19.3 for any part of the Subscriber's participation under this agreement; TAX means: (a) any tax, including the GST, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding; or (b) any income, stamp or transaction duty, tax or charge, which is assessed, levied, imposed or collected by any Governmental Agency and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed on or in respect of any of the above; TAX ACT means the Income Tax Assessment Act 1936 of the Commonwealth of Australia; TAX INVOICE includes any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit; TECHNICAL ADVISER means Structel Pty Limited (ACN 064 274 835); - -------------------------------------------------------------------------------- page 18 27 NTL Subscription Agreement TERMINATION DATE means in the case of both the Tranche A Facility and the Tranche B Facility, 5 years from the date of this agreement; TITLE DOCUMENT means any original, duplicate or counterpart certificate or document of title including, but not limited to, any real property certificate of title or any share certificate; TOTAL SENIOR DEBT means on any date, all Finance Debt of the Borrower Group on that date other than Subordinated Debt on that date; TRANCHE A FACILITY means the facility made available by the Tranche A Subscribers to the Borrower under clause 5; TRANCHE B FACILITY means the facility made available by the Tranche B Subscribers to the Borrower under clause 6; TRANCHE A COMMITMENT means in relation to a Subscriber: (a) until the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche A Commitment of the Subscriber in part A of schedule 2; (b) after the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche A Commitment of the Subscriber in part B of schedule 2; TRANCHE B COMMITMENT means in relation to a Subscriber: (a) until the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche B Commitment of the Subscriber in part A of schedule 2; (b) after the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche B Commitment of the Subscriber in part B of schedule 2; TRANCHE A SUBSCRIBERS means the Subscribers listed in schedule 2 as Tranche A Subscribers and any person who is a Substitute Subscriber in relation to the Tranche A Facility; TRANCHE B SUBSCRIBERS means the Subscribers listed in schedule 2 as Tranche B Subscribers and any person who is a Substitute Subscriber in relation to the Tranche B Facility; TRANSACTION DOCUMENT means: (a) this agreement; (b) each Fee Letter; (c) the Debenture Trust Deed; (d) each Master Debenture; (e) each Security; (f) a Guarantee Assumption Agreement; (g) a Collateral Security; (h) each Hedging Agreement; (i) the Subordination Deed; (j) each Tripartite Deed; or any document or agreement entered into or given under any of the above; - -------------------------------------------------------------------------------- page 19 28 NTL Subscription Agreement TRANSACTION PARTY means: (a) the Borrower; (b) each Guarantor; (c) each Security Provider; TRANSMISSION FACILITY means a Transmission Facility as defined in any Material Document; TRIPARTITE DEED means each of: (a) the ABC Tripartite Deed; (b) the SBS Tripartite Deed; (c) the Commonwealth Tripartite Deed; UNDRAWN COMMITMENT means: (a) the Undrawn Tranche A Commitment; (b) the Undrawn Tranche B Commitment; UNDRAWN TRANCHE A COMMITMENT means, at any time, the Aggregate Tranche A Commitment at that time less the Principal Outstanding under the Tranche A Facility at that time; UNDRAWN TRANCHE B COMMITMENT means, at any time, the Aggregate Tranche B Commitment at that time less the Principal Outstanding under the Tranche B Facility at that time. 1.2 INTERPRETATION In this agreement, headings and boldings are for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires: (a) words importing the singular include the plural and vice versa; (b) words importing a gender include any gender; (c) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning; (d) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Governmental Agency; (e) a reference to any thing (including, but not limited to, any right) includes a part of that thing but nothing in this clause 1.2(e) implies that performance of part of an obligation constitutes performance of the obligation; (f) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this agreement and a reference to this agreement includes any annexure, exhibit and schedule; (g) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute - -------------------------------------------------------------------------------- page 20 29 NTL Subscription Agreement includes all regulations, proclamations, ordinances and by-laws issued under that statute; (h) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document; (i) a reference to liquidation includes official management, appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or a similar procedure or, where applicable, changes in the constitution of any partnership or person, or death; (j) a reference to a party to any document includes that party's successors and permitted assigns; (k) a reference to an agreement other than this agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing; (l) a reference to an asset includes all property of any nature, including, but not limited to, a business, and all rights, revenues and benefits; (m) a reference to a document includes any agreement in writing, or any certificate, notice, instrument or other document of any kind; (n) no provision of this agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision; (o) a reference to the drawing, accepting, endorsing or other dealing with or of a Bill refers to a drawing, accepting, endorsing or dealing within the meaning of the Bills of Exchange Act 1909 (Cth); and (p) a reference to a body, other than a party to this agreement (including, without limitation, an institute, association or authority), whether statutory or not: (1) which ceases to exist; or (2) whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions. 1.3 BUSINESS DAY Subject to clause 9.2 and clause 4.6(c), where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next succeeding Business Day. 1.4 ACCOUNTING STANDARDS (a) In respect of any accounting practice relevant to this agreement, the following accounting standards apply: (1) the accounting standards required under the Corporations Law; - -------------------------------------------------------------------------------- page 21 30 NTL Subscription Agreement (2) if no accounting standard applies under the Corporations Law in relation to an accounting practice, the standards acceptable to the Australian Accounting Standards Board, including: (A) the Australian Accounting Concepts; (B) the Australian Accounting Standards; (C) Urgent Issues Group Consensus Views; (D) Accounting Interpretations; (E) Accounting Bulletins; and (3) if no accounting standard applies under clause 1.4(a)(1) or 1.4(a)(2), the accounting practice agreed between the parties and, failing agreement, the accounting practice determined under clause 1.4(b). (b) If the parties do not agree under clause 1.4(a)(3), the matter must be referred within 3 Business Days to the President of the Institute of Chartered Accountants in Australia or his nominee for determination of the appropriate accounting practice. Any party may make the referral under this clause 1.4(b). (c) A determination under clause 1.4(b) is final and binding on the parties. (d) The Borrower must bear the costs of the referral and determination under clause 1.4(b) unless the determination made under clause 1.4(b) is in all material respects consistent with the accounting practice applied by the Borrower before referral under clause 1.4(b), in which case the costs of referral and determination must be borne by the Finance Parties. 1.5 ISSUE OF DEBENTURES References in the Transaction Documents to the issue of Debentures are references to the issue of the Master Debenture to which those Debentures relate and to the recording in the Register of the details of those Debentures and the Debenture Holders of those Debentures. - ------------------------------------------------------------------------------- 2 CONDITIONS PRECEDENT 2.1 CONDITIONS PRECEDENT TO INITIAL FUNDING PORTION A Subscriber is not obliged to provide its Commitment until the Agent has received all of the following in form and of substance satisfactory to the Agent: (a) PRE-FUNDING CERTIFICATE: a certificate in the form of schedule 3 dated not more than 7 days before the first Funding Date, given in respect of each Transaction Party which is, or on the first Funding Date will be, a party to a Transaction Document, together with all attachments referred to in the certificate; (b) TRANSACTION DOCUMENTS: copies of each Transaction Document (other than each Security and the Tripartites) which is, or on the first Funding Date is required by the Agent to be, executed, duly executed by all parties to them other than the Finance Parties and, where applicable: - -------------------------------------------------------------------------------- page 22 31 NTL Subscription Agreement (1) duly stamped or, if the Agent permits, sufficient Same Day Funds or other provision to meet all liabilities to Tax on or in respect of them; and (2) where registrable, in registrable form together with all fully executed documents and other things necessary to effect registration of them including, but not limited to, form 309 under the Corporations Regulations and a certificate complying with section 265(4)(b) of the Corporations Law or, if the Agent consents, a written undertaking from the relevant Transaction Party that a certificate complying with section 265(4)(b) of the Corporations Law will be provided to the Agent within 7 days after the relevant Security is duly stamped; (c) MATERIAL DOCUMENTS: copies of each Material Document duly executed by all parties to them and, where applicable, duly stamped, or if not duly stamped, evidence satisfactory to the Agent that they will be duly stamped; (d) TECHNICAL ADVISER'S REPORT: a report from the Technical Adviser in relation to the Transmission Facilities; (e) ACCOUNTS: a copy of: (1) the audited Financial Report for the Borrower Group for the period ending 31 December 1999; (2) the audited management accounts for the Borrower Group for the financial year ending 31 December 2000;` (f) DECLARATION OF SOLVENCY AND RELATED PARTIES: before, but not earlier than 2 Business Days before execution by a Transaction Party of any Transaction Document, a certificate in relation to the Transaction Party in the form of schedule 4 signed by a director of the Transaction Party; (g) ENQUIRIES: results of searches, enquiries and requisitions in respect of each Transaction Party and the Secured Property; (h) INSURANCE: evidence that each Transaction Party has complied with clause 11.19; (i) BUSINESS PLAN: a copy of the Business Plan; (j) FEES AND EXPENSES: evidence that all fees and expenses due and payable by a Transaction Party under the Transaction Documents have been paid or will be paid on the first Funding Date out of the proceeds of the first Funding Portion; (k) NO MATERIAL ADVERSE CHANGE: no event or change has occurred since the end of the most recent financial year for which audited Financial Statements have been provided to the Agent in relation to a Transaction Party that has had or is likely to have a Material Adverse Effect; (l) FINANCIAL MODEL AUDIT: a financial model audit report from an independent auditor acceptable to the Agent, confirming the mathematical integrity of the financial model contained in the Business Plan; (m) LITIGATION: no litigation has commenced or is threatened which has had or is likely to have a Material Adverse Effect; - -------------------------------------------------------------------------------- page 23 32 NTL Subscription Agreement (n) LEGAL OPINION: a legal opinion from Freehills in relation to such matters about the Transaction Parties and the Transaction Documents as the Agent may require, including the execution by the Transaction Parties of the Transaction Documents and the enforceability of the Transaction Documents; (o) SUBORDINATION DEED: a legal opinion from legal counsel reasonably acceptable to the Agent in relation to the Subordinated Lender and the Subordination Deed; (p) OTHER INFORMATION: any other information or document which the Agent reasonably requests before the Signing Date in relation to the Transaction Parties, the Transaction Documents and the Material Documents. 2.2 CONDITIONS PRECEDENT TO ALL FUNDING PORTIONS A Subscriber is not obliged to provide any Funding Portion, or its Pro Rata Share of any Funding Portion, until the following conditions are fulfilled to the entire satisfaction of the Agent: (a) FUNDING NOTICE: the Borrower has delivered a Funding Notice to the Agent in respect of the Funding Portion in accordance with clause 4.2; (b) FUNDING DATE: the Funding Date for the Funding Portion is a Business Day within the Availability Period; (c) COMMITMENT: the Commitment of that Subscriber under the relevant Facility to which the Funding Portion relates is not, nor will be, exceeded by the provision of the Funding Portion; (d) NO DEFAULT: no Event of Default or Potential Event of Default has occurred and is continuing and no Event of Default or Potential Event of Default would result from the proposed Funding Portion being provided; (e) WARRANTIES CORRECT: each representation and warranty contained in clause 10 and which is expressed to be repeated on a Funding Date is true and correct in all material respects and not misleading in a material respect on and as of the proposed Funding Date as if it had been made on and as of that date in respect of the facts and circumstances existing at that time; (f) AUTHORISATIONS: the Agent has received all Authorisations required for the provision of the Funding Portion and all other documents which it has reasonably requested the Borrower to provide and each is in full force and effect and each statement contained in them is true and complete; (g) RELEVANT LAWS: the execution, delivery and performance by any Transaction Party of any Transaction Document, and the provision of the Funding Portion, has not and will not violate, breach or result in a contravention of any law, regulation or Authorisation; and (h) TRANCHE A: in the case of a Funding Portion requested under the Tranche A Facility for the purpose specified in clause 3.3(a)(3), the Borrower has delivered to the Agent a certificate signed by two directors of the Borrower certifying that, after the relevant Funding Portion has been provided, the directors have formed the view that the Borrower will have sufficient funds available to it under the then undrawn portion of the Tranche A Facility to - -------------------------------------------------------------------------------- page 24 33 NTL Subscription Agreement enable the Borrower to meet its financial obligations and planned capital expenditure requirements for the immediately following 12 month period. 2.3 CERTIFIED COPIES An Officer of the relevant Transaction Party must certify a copy of a document given to a Finance Party under clauses 2.1 or 2.2 to be a true and up-to-date copy of the original document as at a date not more than 7 days before the date it is given to the Finance Party. 2.4 SUBSCRIBER'S CONDITIONS PRECEDENT A condition in this clause 2 is for the benefit only of the Finance Parties and only the Agent may waive it. 2.5 CONDITIONS SUBSEQUENT (a) The Borrower must use its best endeavours to procure that: (1) the Commonwealth enters into the Commonwealth Tripartite Deed; (2) SBS enters into the SBS Tripartite Deed; (3) ABC enters into the ABC Tripartite Deed; in each case in a form acceptable to the Agent (acting on instructions of all Subscribers), promptly after the Signing Date. (b) The Borrower must enter into the Guarantee Facility Charge and into a charge or charges to secure the Secured Moneys over all of the Borrower's assets in form and substance satisfactory to the Agent promptly after the Commonwealth has executed the Commonwealth Tripartite Deed under clause 2.5(a). (c) NTLH must enter into the Share Mortgage promptly after the Commonwealth has executed the Commonwealth Tripartite Deed under clause 2.5(a). (d) If the Tripartite Deeds, the Share Mortgage and the Deeds of Charge have not been executed and delivered by all parties (other than the Finance Parties) in a form acceptable to the Agent (acting on the instructions of all Subscribers) before 31 May 2001, the Borrower must repay the Secured Moneys in full on demand by the Agent in accordance with this agreement. - ------------------------------------------------------------------------------ 3 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY 3.1 PROVISION OF COMMITMENT Subject to this agreement, each Subscriber must make its Commitment available to the Borrower under this agreement. - -------------------------------------------------------------------------------- page 25 34 NTL Subscription Agreement 3.2 SEVERAL OBLIGATIONS AND RIGHTS OF SUBSCRIBERS The obligations and rights of the Subscribers under this agreement and each other Transaction Document are several and: (a) failure of a Subscriber to perform its obligations does not relieve any other Subscriber from any of its obligations; (b) no Subscriber is responsible for the obligations of any other Subscriber or the Agent (unless it is the Agent); and (c) subject to each Transaction Document each Subscriber may separately enforce its rights under any Transaction Document. 3.3 PURPOSE (a) The Borrower must only use the proceeds of a Funding Portion provided under the Tranche A Facility for the following purposes: (1) for general corporate purposes in connection with the Business; (2) to subscribe for shares in or to make loans to: (A) NTLT; or (B) NTLH, in order to subscribe for shares in or makes loans to NTLT or NTL Telecommunications; or (C) NTL Telecommunications, but only up to a maximum aggregate amount of $80,000,000; (3) to make a Permitted Distribution; or (4) for any other purpose agreed to by the Agent acting on the instructions of the Majority Subscribers. (b) The Borrower must only use the proceeds of a Funding Portion provided under the Tranche B Facility: (1) to repay the principal sum of $140,180,018 under the interest free promissory note issued on 24 November 2000 by the Borrower to the Subordinated Lender; (2) to repay amounts payable to the Subordinated Lender under working capital facilities provided by the Subordinated Lender to the Borrower up to a maximum amount of $15,100,000; (3) to repay principal and accrued interest under the promissory note having a principal sum of $300,000,000 issued on 30 April 1999 by the Borrower to the Subordinated Lender (whether or not the promissory note is repaid in full), but only so that the aggregate amount repaid or prepaid under clause 3.3(b)(1), (2) and (3) does not exceed the Aggregate Tranche B Commitment. (c) At the request of the Agent from time to time, the Borrower must provide a certificate to the Agent within 5 Business Days of such a request being made, confirming that it has complied with clause 3.3(a) and 3.3(b). - -------------------------------------------------------------------------------- page 26 35 NTL Subscription Agreement 3.4 CANCELLATION OF COMMITMENT DURING AVAILABILITY PERIOD (a) The Borrower may at any time during the Availability Period for a Facility cancel all or part of the Undrawn Commitment for that Facility by giving the Agent at least 3 Business Days' prior notice. (b) A partial cancellation of the Undrawn Commitment for a Facility may only be made in a minimum amount of $1,000,000 and in an integral multiple of $1,000,000. (c) The undrawn Commitment of a Subscriber under a Facility is cancelled to the extent of its Pro Rata Share of the Undrawn Commitment for that Facility which is cancelled under this clause 3.4. (d) The face value amount of the Debenture held by a Subscriber for a Facility is reduced by its Pro Rata Share of the Undrawn Commitment for that Facility which is cancelled under this clause 3.4, as evidenced by the Register. (e) A notice given under clause 3.4(a) is irrevocable. (f) The Register will be updated by the Security Trustee on each occasion that a cancellation is made under this clause 3.4 to reflect the revised face value amounts of the relevant Debentures held by the relevant Subscribers. 3.5 CANCELLATION AT END OF AVAILABILITY PERIOD The Undrawn Commitment for a Facility is cancelled at 5.00 pm (Sydney time) on the last day of the Availability Period for that Facility. 3.6 PREPAYMENT (a) The Borrower may prepay all or part of the Principal Outstanding under a Facility by giving the Agent at least 3 Business Days' prior notice. (b) Prepayment of part of the Principal Outstanding under a Facility may only be made in a minimum amount of $1,000,000 and in an integral multiple of $1,000,000. (c) A notice given under clause 3.6(a) is irrevocable and on the prepayment date specified in the notice the Borrower must prepay the full amount of the Principal Outstanding specified in the notice and all unpaid interest accrued to the prepayment date on the relevant Debentures in respect of the prepaid amount. (d) The Commitment of a Subscriber for a Facility is reduced by its Pro Rata Share of any amount of Principal Outstanding for that Facility prepaid under clauses 13.3, 13.4 or 20.2(e) and, in the case of the Tranche B Facility or any prepayment of the Tranche A Facility from the proceeds of a Permitted Securitisation, any prepayment under this clause 3.6, (except where the prepayment relates to the Principal Outstanding of a particular Subscriber for a Facility under clause 13.3, 13.4 or 20.2(e), in which case the Commitment of that Subscriber for that Facility will be reduced by the full amount of the Principal Outstanding for that Facility which is prepaid) and accordingly (but subject to clause 3.6(e)) a prepaid amount must not be redrawn. - -------------------------------------------------------------------------------- page 27 36 NTL Subscription Agreement (e) An amount prepaid under this clause 3.6 in respect of the Tranche A Facility may be redrawn unless the prepayment is made from the proceeds of a Permitted Securitisation in which case it may not be redrawn. An amount prepaid under this clause 3.6 in respect of the Tranche B Facility may not be redrawn. (f) The face value amount and Paid Up Amount of each Debenture held by a Subscriber for a Facility is reduced by its Pro Rata Share of any amount of Principal Outstanding for that Facility prepaid under this clause 3.6, or under clauses 13.3, 13.4 or 20.2(e) (except where the prepayment relates to the Principal Outstanding of a particular Subscriber for a Facility under clauses 13.3, 13.4 or 20.2(e), in which case the Paid Up Amount of that Subscriber for that Facility will be reduced by the full amount of the Principal Outstanding which is prepaid), as evidenced by the Register. (g) The Scheduled Reduction Amounts set out in clause 6.5 will be reduced in inverse order of maturity by an amount equal to each reduction in the Tranche B Commitment of the Tranche B Subscribers under clause 3.6(d). (h) The Register will be updated by the Security Trustee on each occasion that a prepayment is made under this clause 3.6, or under clauses 13.3, 13.4 or 20.2(e) to reflect the revised face value amounts and Paid Up Amounts of the relevant Debentures held by relevant Subscribers. 3.7 PREPAYMENT DATE The Borrower may make a prepayment under clause 3.6 on any Business Day. - ------------------------------------------------------------------------------- 4 FUNDING PROCEDURES 4.1 DELIVERY OF FUNDING NOTICE (a) If the Borrower requires a Funding Portion under a Facility it must deliver to the Agent a Funding Notice in accordance with this clause 4. (b) Promptly after receipt of a Funding Notice, the Agent must notify each Subscriber of its contents and of each Subscriber's Pro Rata Share of each Funding Portion for the relevant Facility requested. (c) If a Funding Notice is received by the Agent after 4.00pm (Sydney time) on any Business Day the Agent is not obliged to notify the Subscribers under clause 4.1(b) until the next Business Day. 4.2 REQUIREMENTS FOR A FUNDING NOTICE A Funding Notice in relation to a Facility: (a) must be in writing in the form of, and specifying the matters set out in, schedule 5; (b) must be received by the Agent before 10.30 am (Sydney time) on a day at least 3 Business Days before the proposed Funding Date (or such shorter period as the Agent may agree in writing); (c) must be signed by an Officer of the Borrower and must be executed and delivered outside New South Wales and Victoria; - -------------------------------------------------------------------------------- page 28 37 NTL Subscription Agreement (d) whether or not stated in the notice, constitutes a representation and warranty by the Borrower that: (1) each representation and warranty set out in clause 10 is true, correct and not misleading as if made at the date of the Funding Notice and the Funding Date in respect of the facts and circumstances then subsisting; and (2) there has been no Event of Default or Potential Event of Default which is continuing or which would result from the Funding Portion being provided to the Borrower, but if clauses 4.2(d)(1) or (2) or both are not correct the Funding Notice must contain a statement to that effect and must set out full details of any exceptions and the reasons and any remedial action taken or proposed. Any such statement is without prejudice to the rights of each Finance Party under clause 2. 4.3 IRREVOCABILITY OF FUNDING NOTICE The Borrower is irrevocably committed to draw Funding Portions from the Subscribers in accordance with each Funding Notice given to the Agent. 4.4 NUMBER OF FUNDING PORTIONS The Borrower must ensure that no more than 7 Funding Portions in aggregate are outstanding at any time under the Facilities. 4.5 AMOUNT OF FUNDING PORTIONS The Borrower must ensure that the amount of each Funding Portion under a Facility is either: (a) not less than $5,000,000 and is an integral multiple of $1,000,000; or (b) equal to the aggregate Undrawn Commitment under that Facility. 4.6 SELECTION OF FUNDING PERIODS (a) The Borrower must select a Funding Period for each Funding Portion under a Facility in the relevant Funding Notice delivered by the Borrower in relation to the relevant Funding Portion. (b) Each Funding Period under a Facility must be of 30, 60, 90 or 180 days or any other period that the Agent (after consultation with the Subscribers) agrees with the Borrower. (c) If a Funding Period ends on a day which is not a Business Day, it is regarded as ending on the next Business Day in the same calendar month or, if none, the preceding Business Day. (d) A Funding Period for a Funding Portion commences either on the first Funding Date for that Funding Portion or on the last day of the immediately preceding Funding Period for that Funding Portion. (e) No Funding Period for a Facility may end after the Termination Date for the relevant Facility. - -------------------------------------------------------------------------------- page 29 38 NTL Subscription Agreement (f) If the Borrower fails to select a Funding Period under a Facility, the Funding Period will be 90 days or such other period selected by the Agent (after consultation with the Subscribers). (g) If the Borrower selects a Funding Period in a manner which does not comply with this clause 4.6, the Agent may select the Funding Period (after consultation with the Subscribers). 4.7 DETERMINATION OF FUNDING RATE (a) After the Agent has determined the Funding Rate for a Funding Period it must promptly notify each Subscriber and the Borrower of the Funding Rate for that Funding Period. (b) In the absence of manifest error, each determination of the Funding Rate by the Agent is conclusive evidence of that rate against the Borrower. - ------------------------------------------------------------------------------ 5 TRANCHE A FACILITY (REVOLVING FACILITY) 5.1 SUBSCRIPTION FOR, AND ISSUE OF DEBENTURES (a) If the Borrower gives a Funding Notice for a Funding Portion under the Tranche A Facility then, subject to this agreement, each Tranche A Subscriber must provide to the Agent its Pro Rata Share of the Funding Portion in accordance with clauses 5.1(b) and (c) in Same Day Funds in Dollars not later than 12 noon (Sydney time) on the specified Funding Date and in accordance with that Funding Notice. (b) In the case of the first Funding Portion under the Tranche A Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by subscribing in the Australian Capital Territory for a Debenture recorded in the Register as being held by that Subscriber under clause 5.1(h) on the specified Funding Date. (c) In the case of the second and each subsequent Funding Portion under the Tranche A Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by paying up part of the unpaid amount of the Debenture recorded in the Register as being held by it under clause 5.1(h). (d) The Borrower must issue a Master Debenture for the benefit of each Tranche A Subscriber on the first Funding Date under the Tranche A Facility. (e) Each Master Debenture issued for the benefit of a Tranche A Subscriber under clause 5.1(d): (1) must be executed and issued in the Australian Capital Territory; (2) must be issued in or substantially in the form set out in schedule 1 of the Debenture Trust Deed. - -------------------------------------------------------------------------------- page 30 39 NTL Subscription Agreement (f) The face value amount of each Debenture recorded in the Register as being held by Tranche A Subscriber will be equal to the Tranche A Commitment of that Subscriber set out in part B of schedule 2, and will have an initial Paid Up Amount equal to that Tranche A Subscriber's Pro Rata Share of the first Funding Portion provided on the first Funding Date under the Tranche A Facility. (g) The Paid Up Amount of each Debenture recorded in the Register as being held by a Tranche A Subscriber will be increased by an amount equal to that Tranche A Subscriber's Pro Rata Share of the second and each subsequent Funding Portion provided under clause 5.1(c). (h) Details of each Debenture subscribed for by a Tranche A Subscriber under this clause 5.1, including details of: (1) its face value; (2) its initial Paid up Amount; (3) all increases and decreases in its Paid up Amount, will be recorded in the Register by the Security Trustee in accordance with the Debenture Trust Deed. 5.2 PAYMENT TO BORROWER On receipt of the amounts paid to it by the Tranche A Subscribers under clause 5.1(b) and (c), the Agent must pay the same in Same Day Funds in Dollars to an account of the Borrower in the Australian Capital Territory. 5.3 REPAYMENT (a) The Paid Up Amount of each Debenture under the Tranche A Facility must be repaid by the Borrower to the Agent for the account of the Tranche A Subscribers: (1) in full on the Termination Date for the Tranche A Facility; and (2) otherwise as specified in, or required under, this agreement. (b) The Borrower must pay or repay the balance of the Secured Moneys for the Tranche A Facility in full to the Agent for the account of the Tranche A Subscribers on the Termination Date for the Tranche A Facility or on such other date on which the Paid Up Amount on each Debenture issued under the Tranche A Facility is, or is required to be, repaid or prepaid in full. 5.4 INTEREST (a) The Borrower must pay interest on the Paid Up Amount of each Debenture for the Tranche A Facility at the Funding Rate for the Tranche A Facility for each relevant Funding Period. (b) Interest must be calculated on daily balances on the basis of a 365 day year and for the actual number of days elapsed from and including the first day of each Funding Period to, but excluding, the last day of the Funding Period, or, in the case of a prepayment or repayment being made on a day other than the last day of the relevant Funding Period, the prepayment or repayment date. - -------------------------------------------------------------------------------- page 31 40 NTL Subscription Agreement (c) The Borrower must pay accrued interest in arrears to the Agent for the account of the Tranche A Subscribers on each Interest Payment Date. 5.5 UPDATING REGISTER The Register will be updated by the Security Trustee on each occasion that: (a) a prepayment or repayment of the Principal Outstanding under the Tranche A Facility is made to reflect the revised face value amounts and Paid up Amounts of the Debentures held by the Tranche A Subscribers; (b) a prepayment or repayment of the Principal Outstanding under the Tranche B Facility is made to reflect the revised face value amounts and Paid Up Amounts of the Debentures held by the Tranche B Subscribers. 5.6 FIRST FUNDING PORTION Notwithstanding any other provision of the Transaction Documents, $100 of the Paid Up Amount of each Debenture held by each Tranche A Subscriber must not be repaid until all the Secured Moneys (other than each amount of $100 referred to in clause 6.6) have been paid or satisfied in full. - ------------------------------------------------------------------------------ 6 TRANCHE B FACILITY (AMORTISING FACILITY) 6.1 SUBSCRIPTION FOR, AND ISSUE OF DEBENTURES (a) If the Borrower gives a Funding Notice for a Funding Portion under the Tranche B Facility then, subject to this agreement, each Tranche B Subscriber must provide to the Agent its Pro Rata Share of the Funding Portion in accordance with clauses 6.1(b) and (c) in Same Day Funds in Dollars not later than 12 noon (Sydney time) on the specified Funding Date and in accordance with that Funding Notice. (b) In the case of the first Funding Portion under the Tranche B Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by subscribing in the Australian Capital Territory for a Debenture recorded in the Register as being held by that Subscriber under clause 6.1(h) on the specified Funding Date. (c) In the case of the second and each subsequent Funding Portion under the Tranche B Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by paying up part of the unpaid amount of the Debenture recorded in the Register as being held by it under clause 6.1(h). (d) The Borrower must issue a Master Debenture for the benefit of each Tranche B Subscriber on the first Funding Date under the Tranche B Facility. (e) Each Master Debenture issued for the benefit of a Tranche B Subscriber under clause 6.1(d): (1) must be executed and issued in the Australian Capital Territory; (2) must be issued in or substantially in the form set out in schedule 1 of the Debenture Trust Deed. - -------------------------------------------------------------------------------- page 32 41 NTL Subscription Agreement (f) The face value amount of each Debenture recorded in the Register as being held by a Tranche B Subscriber will be equal to the Tranche B Commitment of that Subscriber set out in part B of schedule 2, and will have an initial Paid Up Amount equal to that Tranche B Subscriber's Pro Rata Share of the first Funding Portion provided on the first Funding Date under the Tranche B Facility. (g) The Paid Up Amount of each Debenture recorded in the Register as being held by a Tranche B Subscriber will be increased by an amount equal to that Tranche B Subscriber's Pro Rata Share of the second and each subsequent Funding Portion provided under clause 6.1(c). (h) Details of each Debenture subscribed for by a Tranche B Subscriber under this clause 6.1, including details of: (1) its face value; (2) its initial Paid up Amount; (3) all increases and decreases in its Paid up Amount, will be recorded in the Register by the Security Trustee in accordance with the Debenture Trust Deed. 6.2 PAYMENT TO BORROWER On receipt of the amounts paid to it by the Tranche B Subscribers under clause 6.1(b) and (c), the Agent must pay the same in Same Day Funds in Dollars to an account of the Borrower in the Australian Capital Territory. 6.3 REPAYMENT (a) The Paid Up Amount of each Debenture under the Tranche B Facility must be repaid by the Borrower to the Agent for the account of the Tranche B Subscribers: (1) in full on the Termination Date for the Tranche A Facility; and (2) otherwise as specified in, or required under this agreement. (b) The Borrower must pay or repay the balance of the Secured Moneys for the Tranche B Facility in full to the Agent for the account of the Tranche B Subscribers on the Termination Date for the Tranche B Facility or on such other date on which the Paid Up Amount on each Debenture issued under the Tranche B Facility is, or is required to be, repaid or prepaid in full. 6.4 INTEREST (a) The Borrower must pay interest on the Paid Up Amount of each Debenture for the Tranche B Facility at the Funding Rate for the Tranche B Facility for each relevant Funding Period. (b) Interest must be calculated on daily balances on the basis of a 365 day year and for the actual number of days elapsed from and including the first day of each Funding Period to, but excluding, the last day of the Funding Period, or, in the case of a prepayment or repayment being made on a day other than the last day of the relevant Funding Period, the prepayment or repayment date. - -------------------------------------------------------------------------------- page 33 42 NTL Subscription Agreement (c) The Borrower must pay accrued interest in arrears to the Agent for the account of the Tranche B Subscribers on each Interest Payment Date. 6.5 SCHEDULED REPAYMENT AND REDUCTION IN TRANCHE B COMMITMENT (a) The Aggregate Tranche B Commitment of the Tranche B Subscribers is reduced on each date (REPAYMENT DATE) set out in column 1 below by the amount (SCHEDULED REDUCTION AMOUNT) for that date set out in column 2 below, to the amount (REDUCED TRANCHE B COMMITMENT) for that date set out in column 3 below. The Tranche B Commitment of each Tranche B Subscriber, and the face value amount of the Debenture held by the Tranche A Subscriber, is reduced on each Repayment Date by its Pro Rata Share of each Scheduled Reduction Amount for that date.
REPAYMENT DATE SCHEDULED REDUCTION REDUCED TRANCHE B AMOUNT COMMITMENT ---------------------------- ------------------- ----------------- 30 June 2004 $7,500,000 $192,500,000 31 December 2004 $7,500,000 $185,000,000 30 June 2005 $12,500,000 $172,500,000 31 December 2005 $12,500,000 $160,000,000 the Termination Date for the $160,000,000 $0 Tranche B Facility
(b) The Borrower must make such payments, repayments or prepayments to the Agent for the account of each Tranche B Subscriber as are necessary to ensure that the Paid Up Amount of each Subscriber's Debenture under the Tranche B Facility on each Repayment Date does not exceed the Tranche B Commitment of that Subscriber on that date. 6.6 FIRST FUNDING PORTION Notwithstanding any other provision of the Transaction Documents, $100 of the Paid Up Amount of each Debenture held by each Tranche B Subscriber must not be repaid until all the Secured Moneys (other than each $100 amount referred to in clause 5.6) have been paid or satisfied in full. - ------------------------------------------------------------------------------- 7 MARGIN AND FEES 7.1 COMMITMENT FEE (a) The Borrower must pay to the Agent for distribution to the Subscribers for each Facility in their Pro Rata Shares the Commitment Fee for that Facility calculated in accordance with clause 7.3 on the daily undrawn balance of the Aggregate Commitment of that Facility during the period from and including the Signing Date up to the expiry of the Availability Period for that Facility. - -------------------------------------------------------------------------------- page 34 43 NTL Subscription Agreement (b) Accrued Commitment Fee for a Facility must be paid quarterly in arrears from the date of this agreement and on the last day of the Availability Period for that Facility. (c) The Commitment Fee for a Facility accrues from day to day and is calculated on the basis of the 365 day year and for the actual number of days elapsed. 7.2 OTHER FEES The Borrower must pay to the Arranger and the Agent for their own account the fees in such amounts and at such times and otherwise on such terms and conditions as the Arranger, the Agent and the Borrower have agreed in the Fee Letters. 7.3 CALCULATION OF MARGIN AND COMMITMENT FEE (a) Subject to clause 7.3(c), the Commitment Fee and the Margin in respect of a Facility at any time will be calculated in accordance with the Gearing Ratio for the most recent quarter as follows:
GEARING RATIO COMMITMENT FEE MARGIN ------------------------------------------- -------------- ------ Greater than 5.50 0.60% 1.85% Greater than 4.50 but less than or equal to 0.50% 1.65% 5.50 Greater than 3.50 but less than or equal to 0.45% 1.45% 4.50 Greater than 2.50 but less than or equal to 0.40% 1.20% 3.50 Less than or equal to 2.50 0.35% 0.90%
(b) The Gearing Ratio will be calculated quarterly by the Agent upon receipt of the relevant Financial Reports or accounts showing the results of the last financial quarter. Subject to clause 7.3(c), if the Gearing Ratio for the last quarter results in a change to the Commitment Fee or the Margin the change will take effect from the last Relevant Date. (c) A change to the Margin under clause 7.3(b) will not apply to the Margin payable with respect to a Funding Portion where the Funding Period for that Funding Portion ends after the last Relevant Date but before the date of delivery of the relevant Financial Reports or accounts by the Borrower. (d) If an Event of Default has occurred and while it subsists the margin will be the aggregate of the Overdue Margin and the then applicable Margin calculated in accordance with clauses 7.3(a), 7.3(b) and 7.3(c). (e) From the Signing Date until the Margin and the Commitment Fee are first adjusted after 30 June 2001 under clause 7.3(b) the Margin is 1.85% and the Commitment Fee is 0.60%. (f) The Agent will promptly notify the Borrower and the Subscribers of any change to the Commitment Fee or the Margin under this clause 7.3. - -------------------------------------------------------------------------------- page 35 44 NTL Subscription Agreement 7.4 AGENCY FEE The Borrower must pay to the Agent for its own account an agency fee in accordance with the Agency Fee Letter. - ------------------------------------------------------------------------------ 8 RELIQUEFACTION BILLS 8.1 RELIQUEFACTION BILLS (a) Each Subscriber may, at its own cost, at any time, prepare Reliquefaction Bills in respect of its Pro Rata Share of a Funding Portion for a Facility. 8.2 NATURE OF RELIQUEFACTION BILLS Reliquefaction Bills for a Subscriber's Pro Rata Share of a Funding Portion for a Facility must be prepared so that: (a) their total face amount does not exceed the aggregate of the outstanding principal amount of that Pro Rata Share of that Funding Portion and interest payable or to become payable to that Subscriber in respect of that Funding Portion; and (b) their maturity date is not later than the last day of the Funding Period for that Funding Portion. 8.3 DRAWING OF RELIQUEFACTION BILLS The Borrower authorises the relevant Subscriber to prepare and sign (by its Officer) as drawer, acceptor and endorser, those Reliquefication Bills in accordance with this clause 8. 8.4 SUBSCRIBER'S DEALING (a) A Subscriber must accept or endorse with recourse to that Subscriber each Reliquefaction Bill drawn accepted or endorsed by that Subscriber in accordance with this clause 8. (b) A Subscriber may negotiate or deal with any Reliquefaction Bill accepted or endorsed by it as it sees fit and for its own benefit. 8.5 BILLS OF EXCHANGE ACT The Borrower and each Subscriber must ensure the validity of the Reliquefaction Bills under the Bills of Exchange Act 1909 (Cth). 8.6 STAMP DUTY ON RELIQUEFACTION BILLS A Subscriber must pay any Tax on or in respect of the Reliquefaction Bills and any dealing with Reliquefaction Bills in respect of that Subscriber. 8.7 INDEMNITY IN RESPECT OF RELIQUEFACTION BILLS (a) Each Subscriber severally indemnifies the Borrower against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment - -------------------------------------------------------------------------------- page 36 45 NTL Subscription Agreement (including, but not limited to, any Tax referred to in clause 8.6) which the Borrower suffers, incurs or is liable for in respect of: (1) the Borrower drawing, accepting or endorsing a Reliquefaction Bill at the request of that Subscriber; or (2) the Borrower being a party to a Reliquefaction Bill at the request of that Subscriber. (b) The indemnity of a Subscriber contained in clause 8.7(a): (1) is a continuing obligation of that Subscriber; (2) is an additional, separate and independent obligation of that Subscriber; and (3) survives the termination of any Transaction Document and the repayment of any Reliquefaction Bill drawn at the request of that Subscriber. (c) Subject to clause 8.8, nothing in clause 8.7(a) affects the obligations of the Borrower under this agreement including, but not limited to, the obligation to pay any Secured Moneys which is an absolute and unconditional obligation in no way affected by any actual, contingent or other liability of any Subscriber or the Agent, under clause 8.7(a). 8.8 REDUCTION IN BORROWER'S OBLIGATION If the Borrower discharges by payment any Reliquefaction Bill, then (but without prejudice to any other right of the Borrower), on the date of payment, the amount of that payment is regarded as applied against the moneys owing to the Subscriber who requested the drawing of that Reliquefaction Bill under this agreement and the obligation of the Borrower is accordingly reduced. - ------------------------------------------------------------------------------- 9 PAYMENTS 9.1 MANNER OF PAYMENT All payments by a Transaction Party under the Transaction Documents must be made: (a) in Same Day Funds; (b) in Dollars; (c) not later than 11.00 am (Sydney time) on the due date, to the account of the Agent specified to the Borrower or in such other manner as the Agent directs from time to time. 9.2 PAYMENTS ON A BUSINESS DAY If a payment is due on a day which is not a Business Day, the due date for that payment is the next Business Day in the same calendar month or, if none, the preceding Business Day, and interest must be adjusted accordingly. - -------------------------------------------------------------------------------- page 37 46 NTL Subscription Agreement 9.3 APPROPRIATION OF PAYMENTS (a) Subject to clause 9.3(b) all payments made by a Transaction Party under this agreement may be appropriated as between principal, interest and other amounts as the Agent in its absolute discretion determines, or, failing any determination, in the following order: (1) first, towards reimbursement of all fees, costs, expenses, charges, damages and indemnity payments incurred or due and owing by the Transaction Parties under the Transaction Documents; (2) second, towards payment of interest due and payable under the Transaction Documents; and (3) third, towards repayment or prepayment of the Principal Outstanding. (b) If a Finance Party exercises any Power under a Security, any moneys received as a result must be appropriated in the manner provided in that Security. (c) Any appropriation under clause 9.3(a) or clause 9.3(b) overrides any appropriation made by a Transaction Party. 9.4 PAYMENTS IN GROSS All payments which a Transaction Party is required to make under any Transaction Document must be: (a) without any set-off, counterclaim or condition; and (b) without any deduction or withholding for any Tax or any other reason, unless, and without limiting the operation of clause 9.5, the Transaction Party is required to make a deduction or withholding by applicable law. 9.5 ADDITIONAL PAYMENTS If: (a) any Transaction Party is required to make a deduction or withholding in respect of Tax (other than Excluded Tax) from any payment to be made to a Finance Party under any Transaction Document; or (b) a Finance Party is required to pay any Tax (other than Excluded Tax) in respect of any payment it receives from a Transaction Party or the Agent under any Transaction Document, then the Borrower: (c) indemnifies each Finance Party against that Tax; and (d) must pay to each Finance Party an additional amount which the Agent determines to be necessary to ensure that each Finance Party receives when due a net amount (after payment of any Tax other than Excluded Tax in respect of each additional amount) that is equal to the full amount it would have received had a deduction or withholding or payment of Tax not been made. - -------------------------------------------------------------------------------- page 38 47 NTL Subscription Agreement 9.6 TAXATION DEDUCTION PROCEDURES If a Transaction Party is required to make a deduction or withholding in respect of Tax from any payment to be made to a Finance Party under any Transaction Document, then: (a) the Borrower must pay, or cause the relevant Transaction Party to pay, the amount deducted or withheld to the appropriate Governmental Agency as required by law; and (b) the Borrower must use its best endeavours to obtain official receipts or other documentation from that Governmental Agency and within 2 Business Days after receipt the Borrower must deliver them to the Agent. 9.7 AMOUNTS PAYABLE ON DEMAND If any amount payable by a Transaction Party under any Transaction Document is not expressed to be payable on a specified date that amount is payable by the Transaction Party within 3 Business Days of a demand by the Agent. 9.8 DISTRIBUTION BY AGENT (a) Except to the extent otherwise expressly provided in a Transaction Document, or unless a payment is made to the Agent for its own account, each payment received by the Agent under a Transaction Document is received by the Agent on account of the Subscribers. (b) The Agent must promptly distribute amounts received on account of the Subscribers among the Subscribers according to their respective Pro Rata Shares or other entitlements as provided for in the Transaction Documents and in the same type of funds as received by the Agent. 9.9 NON-RECEIPT OF FUNDS BY THE AGENT FROM THE BORROWER (a) Unless the Agent has received written notice from the Borrower at least 1 Business Day before the date on which any payment is due under this agreement that the Borrower does not intend to make that payment in full on the due date, the Agent may (but is not obliged to) assume that the Borrower has made that payment when due and, in reliance on that assumption, may make available to each Subscriber on that due date an amount equal to the portion of that assumed payment to which that Subscriber is entitled. (b) If the Borrower has not in fact made that payment to the Agent, and does not make that payment, together with interest as provided in this clause 9.9(b), promptly on demand, each Subscriber must, on demand, repay to the Agent the amount so made available to it, together with interest on such amount accrued for each day from and including the due date but excluding the date of such repayment, at the rate per centum per annum which is determined by the Agent to be the Agent's cost of funding such payment for such period. (c) Without limiting its other obligations under this agreement, the Borrower indemnifies each Transaction Party against any damage, loss or expense incurred by each Finance Party by reason of any failure or delay by the Borrower in making any payments referred to in this clause 9.9. - -------------------------------------------------------------------------------- page 39 48 NTL Subscription Agreement 9.10 NON-RECEIPT OF FUNDING PORTION BY THE AGENT FROM A SUBSCRIBER (a) Unless the Agent has received written notice from a Subscriber at least 1 Business Day before a Funding Date that the Subscriber does not intend to make available to the Agent its Pro Rata Share of the Funding Portion under a Facility to be made by it on that Funding Date the Agent may (but is not obliged to) assume the Subscriber has made its participation available to the Agent on the due date and, in reliance upon such assumption, may make available to the Borrower a corresponding amount. (b) If that Pro Rata Share of the Funding Portion under a Facility is not in fact made available to the Agent by that Subscriber, the Agent is entitled to recover that amount on demand from that Subscriber or, failing such recovery, from the Borrower, together with interest in respect of each day commencing on the date the Agent makes such amount available and ending on the date such amount is recovered by the Agent, at a rate per centum per annum which is determined by the Agent to be the Agent's cost of funding such payment for such period. (c) The relevant Subscriber indemnifies the Borrower against any damage, loss or expense suffered or incurred by the Borrower by reason of any failure by that Subscriber in making any payments referred to in this clause 9.10. (d) Nothing in this clause 9.10 requires a Subscriber to provide its Pro Rata Share of a Funding Portion if it is not required to do so because the conditions precedent to the provision of the relevant Funding Portion under clause 2.2 have not been fulfilled to the satisfaction of the Agent in accordance with that clause. 9.11 REDISTRIBUTION OF PAYMENTS (a) If any Subscriber at any time obtains (whether by way of voluntary or involuntary payment or otherwise including, but not limited to, under clause 8.8) a proportion in respect of any sum due from a Transaction Party under the Transaction Documents greater than the amount it should have received in accordance with the Transaction Documents, including, without limitation, as a result of a Subscriber exercising any right to set-off, combine accounts or any other similar right (the amount of the excess being called the EXCESS AMOUNT) then: (1) that Subscriber must within 2 days pay to the Agent an amount equal to the excess amount and the Agent must notify the Borrower of such amount and its receipt by the Agent; (2) the Agent must treat such payment as if it were a payment by the Transaction Party on account of the sum owed to the Subscribers and must forthwith distribute the payment to the Subscribers in accordance with their proportionate entitlements; and (3) as between the Transaction Party and that Subscriber, the excess amount is to be treated as not having been paid to that Subscriber, but it is to be treated as having been paid to all the Subscribers in accordance with their respective proportionate entitlements. - -------------------------------------------------------------------------------- page 40 49 NTL Subscription Agreement (b) Clause 9.11(a) does not impair any right of any Subscriber to retain any sum received by it after the institution of legal proceedings by that Subscriber to recover sums owing to it under any Transaction Document. (c) Every payment and adjustment made in accordance with this clause 9.11 is subject to the condition that, if the excess amount (or any part of it) subsequently is required to be repaid to the relevant Transaction Party, the Agent and each Subscriber which has received any part of it must repay the excess amount (or the relevant part, as the case may be) to that Subscriber together with such amount (if any) as is necessary to reimburse to that Subscriber the appropriate proportion of any interest it has been obliged to pay when paying such amount and the relevant adjustments will be cancelled. - ------------------------------------------------------------------------------ 10 REPRESENTATIONS AND WARRANTIES 10.1 REPRESENTATIONS AND WARRANTIES Each Transaction Party (other than, in the case of clauses 10.1(i), (j), (n), (o), (p), (q), (x), (y) (z) and (aa), NTLH) (but in the case of a Guarantor other than NTLH only from the date it executes this agreement or a Guarantee Assumption Agreement) represents and warrants, to and for the benefit of each Finance Party, that: (a) REGISTRATION: it is a corporation as that expression is defined in the Corporations Law having limited liability, registered (or taken to be registered) and validly existing under the Corporations Law; (b) CORPORATE POWER: it has the corporate power to own its assets and to carry on its business as it is now being conducted; (c) AUTHORITY: it has full power and authority to enter into and perform its obligations under the Transaction Documents and the Material Documents to which it is expressed to be a party; (d) AUTHORISATIONS: it has taken all necessary action to authorise the execution, delivery and performance of the Transaction Documents and the Material Documents to which it is expressed to be a party in accordance with their terms; (e) BINDING OBLIGATIONS: the Transaction Documents and the Material Documents to which it is expressed to be a party constitute its legal, valid and binding obligations and, subject to any necessary stamping and registration, are enforceable against it in accordance with their terms subject to laws generally affecting creditors' rights and to principles of equity; (f) TRANSACTION PERMITTED: the execution, delivery and due performance by it of the Transaction Documents and the Material Documents to which it is expressed to be a party do not and will not violate, breach, or result in a contravention of: (1) any law, regulation or authorisation; (2) its constitution or other constituent documents; or - -------------------------------------------------------------------------------- page 41 50 NTL Subscription Agreement (3) any Encumbrance or document which is binding upon it or on any of its assets, and do not and will not result in: (4) the creation or imposition of any Encumbrance (other than an Encumbrance in favour of a Finance Party) or restriction of any nature on any of its assets other than under a Transaction Documents or a Material Document; or (5) the acceleration of the date of payment of any obligation existing under any Encumbrance or document which is binding upon it or on any of its assets; (g) NO DEFAULT OR BREACH: (1) it is not in breach in any material respect under any agreement binding on it (which breach in the case of an agreement other than a Material Contract would be reasonably likely to have a Material Adverse Effect); (2) nothing has occurred which is, or with the giving of notice, lapse of time, satisfaction of some other conditions or any combination of the above, constitutes an event which causes or enables: (A) the acceleration of any payment in excess of $5,000,000 to be made under any agreement binding on it; or (B) the enforcement, termination or rescission of any Material Document; or (C) the enforcement, termination or recision of any agreement binding on it (other than a Material Document) which in the case of an agreement other than a Material Contract would be reasonably likely to have a Material Adverse Effect; (h) NO LITIGATION: no litigation, arbitration, dispute or administrative proceeding has been commenced, is pending or to its knowledge threatened, by or before any Governmental Agency (other than at the suit of any Finance Party), and no judgment or award has been given, made or is pending, by or before any Governmental Agency which: (1) in any way questions its power or authority to enter into or perform its obligations under any Transaction Document or Material Document to which it is a party; or (2) has had or is likely to have a Material Adverse Effect. (i) ACCOUNTS: its most recent Financial Report or quarterly financial statements (as the case may be) and any other information which it has given to the Agent under clauses 11.2(a), (b) or (c) (as the case may be): (1) give a true and fair view of the financial condition and state of affairs of the Borrower Group as at the date they were drawn up; and (2) were being prepared in accordance with accepted Accounting Standards and the requirements of the Corporations Law at the time of preparation; - -------------------------------------------------------------------------------- page 42 51 NTL Subscription Agreement (3) disclose all material Finance Debt of the Borrower Group and material contingent liabilities of the Borrower Group; (j) NO CHANGE IN AFFAIRS: other than as disclosed in writing to the Agent there has been no change in its state of affairs since the end of the accounting period to which the Financial Reports or quarterly accounts (as the case may be) referred to in clause 10.1(i) relate which has had or is likely to have a Material Adverse Effect; (k) REPRESENTATIONS TRUE: each of its representations and warranties contained in any Transaction Document to which it is a party is true, correct and not misleading when made or repeated or regarded as made or repeated; (l) AUTHORISATIONS: all Authorisations required in connection with the execution, delivery and performance by it, and the validity and the enforceability against it of each Transaction Document or Material Document to which it is a party and its performance of the transactions contemplated by those Transaction Documents or Material Documents have been obtained or effected and are in full force and effect, and there has been no default by it in the performance of any of the terms and conditions of any of those Authorisations; (m) DISCLOSURE: all factual information provided to any Finance Party by or on behalf of the Transaction Parties in respect of the Material Documents, the transactions contemplated by them, each Transaction Party and the assets, business and affairs of each Transaction Party was true and correct in all material respects when provided and any forecasts and projections provided to any Finance Party were arrived at after careful consideration and were based on reasonable grounds when provided and were not when provided, whether by omission of information or otherwise, misleading or deceptive or likely to mislead or deceive; (n) NO FAILURE TO DISCLOSE: it has not withheld from any Finance Party any document, information or other fact material to the decision of each Finance Party to enter into and perform the Transaction Documents to which each Finance Party is a party (it being acknowledged that the information given to each Finance Party has induced each Finance Party to enter into those Transaction Documents); (o) INFORMATION MEMORANDUM: all material information contained in the Information Memorandum was true and correct in all material respects as of the date of the Information Memorandum, all expressions of opinion or intention and forecasts and projections contained in the Information Memorandum were arrived at after careful consideration and were based on reasonable grounds, and as of its date the Information Memorandum was not misleading in any material respect, whether by omission or otherwise; (p) BUSINESS PLAN: all material factual information contained in the Business Plan was true and correct in all material respects as of the date of the Business Plan, all expressions of opinion or intention and forecasts and projections contained in the Business Plan were arrived at after careful consideration and were based on reasonable grounds, and as of its date the Business Plan was not misleading in any material respect, whether by omission or otherwise; - -------------------------------------------------------------------------------- page 43 52 NTL Subscription Agreement (q) RECENT EVENTS: except as disclosed in writing to the Agent, since the date of the Information Memorandum and the Business Plan respectively, nothing has occurred which renders any of the material information, expressions of opinion or intention, projections or conclusions in the Information Memorandum or the Business Plan inaccurate or misleading or, in the case of projections and opinion, other than fair and reasonable in any material respect; (r) NO IMMUNITY: it does not, nor do its assets, enjoy immunity from any suit or execution; (s) TAXES: it has complied with all laws relating to Tax in all applicable jurisdictions and it has paid all Taxes due and payable by it other than Contested Taxes where failure to do so would have a Material Adverse Effect; (t) LEGAL AND BENEFICIAL OWNER: (1) it is the legal and beneficial owner of the Secured Property under any Security given by it; and (2) it will be the legal and beneficial owner of all property it acquires on or after the date of this agreement and which forms part of its Secured Property, and no person other than a Finance Party holds or is entitled to hold an interest in the Secured Property other than under a Permitted Encumbrance; (u) NO ENCUMBRANCES: there is no Encumbrance over any of the Secured Property under any security granted by it other than: (1) an Encumbrance created by a Transaction Document; (2) a Permitted Encumbrance; (v) NOT A TRUSTEE: (1) in the case of each NTL Party, it is not a trustee of any trust or settlement; and (2) in the case of NTLH, it has not and will not enter into any Transaction Document or Material Document as trustee of any trust; (w) COMMERCIAL BENEFIT: the entry into and performance by it of its obligations under the Transaction Documents and Material Documents to which it is expressed to be a party is for its commercial benefit and is in its commercial interests; (x) GROUP STRUCTURE: (1) its only Subsidiaries (if any) are listed in the Group Structure Diagram; (2) the Group Structure Diagram is true and correct in all respects and does not omit any material detail; (3) it is not an entity that a public company controls for the purposes of section 208(1) of the Corporations Law; (y) ENVIRONMENTAL LAW: no act or omission has occurred and there is no circumstance relating to its Secured Property which has given rise or may give rise to: - -------------------------------------------------------------------------------- page 44 53 NTL Subscription Agreement (1) a claim against it; or (2) a requirement of material expenditure by it, or of cessation or alteration of its activity, under any Environmental Law; (z) CONTAMINATION AND HERITAGE: without limiting clause 10.1(y): (1) no contamination or heritage issues have been discovered or arisen in relation to any of its Secured Property; and (2) a Governmental Agency has not conducted an investigation in relation to any of its Secured Property or issued any direction or made any orders; (aa) NATIVE TITLE: none of its Secured Property is encumbered or affected by any easement, restriction, right, or interest, or claim lodged under the Native Title Act 1993 (Cth), observance of which or the exercise or enforcement or acceptance (or any consequence of the acceptance) of which (as the case may be) has had or is likely to have a Material Adverse Effect. 10.2 SURVIVAL AND REPETITION OF REPRESENTATIONS AND WARRANTIES The representations and warranties in, or given under, this agreement including, but not limited to, clause 10.1: (a) survive the execution of each Transaction Document; and (b) (other than the representation and warranty in clause 10.1(q)) are regarded as repeated on each Funding Date and Interest Payment Date with respect to the facts and circumstances then subsisting. 10.3 RELIANCE BY FINANCE PARTIES Each Transaction Party acknowledges that each Finance Party has entered into each Transaction Document to which it is a party in reliance on the representations and warranties in, or given under, this agreement including, but not limited to, clause 10.1. - ------------------------------------------------------------------------------- 11 UNDERTAKINGS 11.1 TERM OF UNDERTAKINGS (a) Unless the Agent otherwise agrees in writing, until: (1) the Aggregate Commitments are cancelled; and (2) the Secured Moneys are fully and finally repaid; and (3) each Security in respect of all the Secured Property under that Security is discharged, each Transaction Party must, at its own cost, comply with the undertakings given by it in this clause 11. (b) The undertakings of a Guarantor operate only from the time of execution by that Guarantor of this agreement or a Guarantee Assumption Agreement. - -------------------------------------------------------------------------------- page 45 54 NTL Subscription Agreement 11.2 PROVISION OF INFORMATION AND REPORTS The Borrower (and, in the case of clauses 11.2(b) and (c) (where it relates to the Secured Property), each other Transaction Party) must furnish to the Agent (with sufficient copies for each Finance Party) all of the following: (a) ANNUAL FINANCIAL REPORTS: as soon as practicable, but in any event no later than 120 days after its annual balance date, copies of the annual audited Financial Report of the Borrower Group; (b) QUARTERLY ACCOUNTS: as soon as practicable, and in any event no later than 30 days after the end of each calendar quarter: (1) copies of the unaudited quarterly management accounts of the Borrower Group; (2) notice of the acquisition (by purchase, subscription or other means) by the Borrower of any Subsidiary during the preceeding quarter; (3) details of any amendments or variations made to any Material Contract during the preceeding quarter; (c) BUDGET: as soon as practicable but in any event not later than 60 days after the end of each annual balance date, a budget for the financial year following the annual balance date; (d) COMPLIANCE CERTIFICATE: at the same time that the annual Financial Report is required to be delivered under clause 11.2(a) and the management accounts are required to be delivered under clause 11.2(b), a Compliance Certificate signed by a director and the CFO of the Borrower based on those Financial Reports or management accounts, together with details of how the calculations of each of the financial ratios certified in the Compliance Certificate were arrived at. The Compliance Certificate delivered together with the annual audited Financial Report required under clause 11.2(a) must be accompanied by a certificate from an auditor acceptable to the Agent confirming the accuracy of the calculations of each of the relevant financial ratios. (e) DIRECTORS' CERTIFICATE: at the request of the Agent, a certificate signed by at least 2 directors of the Borrower stating: (1) if an Event of Default or Potential Event of Default has occurred or is subsisting; and (2) if so, full details of the relevant Event of Default or Potential Event of Default and of remedial action being taken or proposed; (f) DOCUMENTS ISSUED TO SHAREHOLDERS: copies of all material documents issued by it to its shareholders or debenture holders or holders of other Marketable Securities at the same time as their issue; (g) GROUP STRUCTURE DIAGRAM: an updated Group Structure Diagram on each occasion that the then current Group Structure Diagram ceases to be true and accurate; (h) COMMONWEALTH NOTICES: promptly, but in any event no later than 3 Business Days after being received or sent by the Transaction Party, copies of any material written correspondence sent to or received from the - -------------------------------------------------------------------------------- page 46 55 NTL Subscription Agreement Commonwealth of Australia or any Governmental Agency under or in relation to the Material Documents; (i) OTHER INFORMATION: at the reasonable request of the Agent, any other information about the Business, the financial condition or state of affairs of it or about the Secured Property under any Security given by it. 11.3 PROPER ACCOUNTS Each NTL Party must: (a) keep proper books of account which give a true and fair view of the financial condition and state of affairs of it; (b) ensure that the Financial Reports and quarterly accounts furnished under clause 11.2 (as the case may be) are prepared in accordance with the Corporations Law requirements in chapter 2M. 11.4 NOTICES TO THE AGENT Each NTL Party must give notice to the Agent as soon as it becomes aware of any of the following: (a) any Event of Default occurring; (b) any Potential Event of Default occurring; (c) any Review Event occurring; (d) any litigation, arbitration or administrative proceeding in respect of it or any of its assets in an amount in any case in excess of $5,000,000 being commenced or threatened; (e) any Encumbrance, other than any Transaction Document or a Permitted Encumbrance, being created or entered into by it; (f) any proposal of, or notification being given to it by any Governmental Agency to compulsorily acquire any asset of it or of any other Transaction Party; (g) the occurrence of any failure by a Transaction Party to comply with any term of a Material Contract, which failure to comply entitles, or would, with the giving of notice, expiration of time or any other condition, entitle a party to terminate a Material Contract; (h) the revocation, amendment, suspension or termination of or material default (other than a default referred to in clause 11.4(g)) under any Material Contract. 11.5 COMPLIANCE WITH STATUTES AND AUTHORISATIONS Each NTL Party (and in the case of clause 11.5(a), 11.5(b)(1) and 11.5(b)(2), NTLH) must: (a) comply with and observe all Authorisations, statutes and lawful requirements including, but not limited to, notices, judgments, orders or decrees of a Governmental Agency which affect or relate to a Transaction Party or the Secured Property; - -------------------------------------------------------------------------------- page 47 56 NTL Subscription Agreement (b) obtain and maintain in full force and effect all Authorisations required for, or in connection with: (1) the validity and enforceability (and, in the case of each Transaction Document which is an Encumbrance, its intended priority) of each Transaction Document and Material Document to which it is a party; (2) its Secured Property; (3) the Business; and (4) any of its other assets, rights or interests; (c) provide a copy of each material Authorisation referred to in clause 11.5(b) to the Agent. 11.6 CONDUCT OF BUSINESS (a) Each Transaction Party must carry on and conduct its business in a proper and efficient manner. (b) Each Transaction Party must do everything necessary to preserve the corporate existence of itself in good standing including but not limited to: (1) not making any applications or passing any resolution for winding up or voluntary administration; (2) not entering into or effecting any scheme of arrangement or merger or consolidation with any other person or persons without the consent of the Agent (which consent will not be unreasonably withheld where the scheme of arrangement, merger or consolidation is effected while the Transaction Party and all other participants in the arrangement, merger or consolidation are solvent); and (3) not entering into or effecting any other scheme under which it ceases to exist or under which the assets or liabilities or both of it are vested in or assumed by any other person. 11.7 PAYMENT OF TAXES AND OUTGOINGS Each Transaction Party must pay all Taxes and outgoings payable when due and payable, other than Contested Taxes, where failure to do so could have a Material Adverse Effect. 11.8 MATERIAL DOCUMENTS (a) Each Transaction Party must not at any time without the consent of the Agent and the Security Trustee: (1) amend or vary or agree to any amendment or variation, of; (2) terminate, rescind or discharge (except by performance); (3) waive or grant any time or indulgence (where the waiver, grant or indulgence could have a Material Adverse Effect) in respect of any material provision of or obligation under, any Material Document to which it is a party unless permitted to do so under clause 11.8(b). - -------------------------------------------------------------------------------- page 48 57 NTL Subscription Agreement (b) The Borrower may, without the consent of the Agent and the Security Trustee: (1) amend or vary the ABC Digital TSA, the ABC Analogue TSA, the SBS Analogue TSA Extension or the SBS Digital TSA: (A) where the amendment or variation is a minor variation or amendment made in the course of routine day to day administration of the relevant agreement; or (B) where the amendment or variation increases the net revenue payable under the relevant agreement or increases the number of Transmission Services provided under the relevant agreement; or (C) to change a Key Element where the change does not and will not reduce the revenue payable under the relevant agreement or breach any Authorisations; (2) amend or vary the Operations and Maintenance Agreement so as to reduce the amount payable by the Borrower under it, but without reducing the required standard of service and performance obligations of TVNZ (Australia) Pty Limited under the Operations and Maintenance Agreement. 11.9 COMPLIANCE WITH MATERIAL DOCUMENTS Each Transaction Party must fully comply with all of its obligations under the Material Documents to which it is a party. 11.10 ENFORCEMENT OF MATERIAL DOCUMENTS Each Transaction Party must do all things necessary to: (a) subject to clause 11.8(a)(3), enforce all of its rights, powers, remedies, authorities and discretions under, or in respect of, each Material Document to which it is a party; and (b) obtain and keep in full force and effect and comply with all terms and conditions of, all Authorisations required to ensure the validity and enforceability of all Material Documents to which it is a party. 11.11 NEGATIVE PLEDGE AND DISPOSAL OF ASSETS (a) Each Transaction Party must not: (1) create, permit, suffer to exist, or agree to, any interest or Encumbrance, other than an Encumbrance in favour of a Finance Party or a Permitted Encumbrance over; or (2) attempt to do anything listed in clause 11.11(a)(1) in respect of, any of its assets (other than, in the case of NTLH, assets which are not subject to the Share Mortgage) except as permitted under the Transaction Documents or otherwise with the prior written consent of the Agent. (b) Each NTL Party must not without the prior written consent of the Agent, acquire an asset which is subject to an existing Encumbrance, or which will become subject to an Encumbrance when the NTL Party acquires the asset. - -------------------------------------------------------------------------------- page 49 58 NTL Subscription Agreement 11.12 FINANCE DEBT Each NTL Party must not incur Finance Debt other than Permitted Finance Debt. 11.13 NO CHANGE TO BUSINESS The Borrower must not cease carrying on the Business or, without the consent of the Agent, engage in any business other than the Business. 11.14 DISPOSAL OF ASSETS Each NTL Party must not transfer, assign, sell, lease or otherwise dispose of or part with possession of any of its assets other than Permitted Disposals. 11.15 LOANS, GUARANTEES AND FINANCIAL ACCOMMODATION Each NTL Party must not, without the prior written consent of the Agent, make or grant or agree to make or grant any loans or financial accommodation or give any Guarantees or indemnities to or for the benefit of any person, other than: (a) pursuant to the Transaction Documents or Material Documents; or (b) loans permitted by clause 3.3(a)(2); (c) with the prior written consent of the Agent. 11.16 RESTRICTIONS ON DEALINGS (a) Subject to clause 11.16(b), each NTL Party must not enter into any agreement with or undertake any obligation to a Related Corporation or Associate other than: (1) in the ordinary course of business and on arm's length commercial terms (or on terms which are no less favourable than arms length terms to it); or (2) with a member of the Borrower Group (other than an Excluded Subsidiary); or (3) with the prior written consent of the Agent. (b) Each NTL Party must not incur any fees, charges or similar amounts (excluding, for the avoidance of doubt, expenses referred to in paragraph (f)(1) of the definition of Permitted Finance Debt) under any management or technical assistance agreements or arrangements with any Related Corporation (other than an NTL Party) without the consent of the Agent acting on the instructions of the Majority Subscribers. 11.17 RESTRICTIONS ON DISTRIBUTIONS Each NTL Party must not make any Distribution other than: (a) a Permitted Distribution; or (b) with the prior written consent of the Agent (acting on the instructions of the Majority Subscribers). - -------------------------------------------------------------------------------- page 50 59 NTL Subscription Agreement 11.18 UNDERTAKINGS REGARDING SECURED PROPERTY Each Transaction Party which is also a Security Provider undertakes that: (a) MAINTENANCE OF THE SECURED PROPERTY: it must maintain and protect its Secured Property and must, without limitation: (1) maintain its Secured Property in a good state of repair and in good working order allowing for fair wear and tear; (2) at the request of the Security Trustee acting on the instructions of the Majority Subscribers, immediately rectify any material defect in the repair or working order of its Secured Property; and (3) remedy every defect in its title to any part of its Secured Property where failure to do so could adversely affect the ability of the Borrower to perform its obligations under the Material Documents; (b) FURTHER SECURITY: it must, whenever requested by the Security Trustee, do or cause to be done anything which: (1) more satisfactorily charges, secures the priority of its Security or assures to the Security Trustee its Secured Property or any part of it in a manner consistent with any provision of any Transaction Document; or (2) aids in the exercise of any Power of a Finance Party, including, but not limited to, the execution of any document, the delivery of Title Documents (other than, unless an Event of Default occurs, Title Documents in respect of Sites) or the execution and delivery of blank transfers; (c) TITLE DOCUMENTS: (1) it must deposit with the Security Trustee, or as the Security Trustee directs, all the Title Documents in respect of any of its Secured Property (other than, unless an Event of Default occurs, Title Documents in respect of Sites) which is subject to the fixed charge created under its Security immediately on: (A) its execution of its Security; (B) acquisition of any asset which forms part of its Secured Property and is subject to the fixed charge created by its Security; and (C) the floating charge which is created by its Security crystallising and fixing for any reason; (2) subject to clause 11.18(b)(3), the Security Trustee may retain the Title Documents until its Security in respect of all its Secured Property is discharged; (3) if its Security is enforced by a Finance Party, the Finance Party, Receiver or Attorney is entitled subject to any applicable law and to the Acquisition Agreement: (A) to deal with the Title Documents as if it was the absolute and unencumbered owner of the Secured Property to which the Title Documents relate; and - -------------------------------------------------------------------------------- page 51 60 NTL Subscription Agreement (B) in exercising a power of sale, to deliver any Title Document to a purchaser of the Secured Property to which it relates; (d) REGISTRATION AND PROTECTION OF SECURITY: (1) it must ensure that its Security and each Collateral Security is registered and filed in all registers in all jurisdictions in which it must be registered and filed to ensure enforceability, validity and priority against all persons and to be effective as a security; (2) it must provide to the Security Trustee a certificate complying with section 265(4)(b) of the Corporations Law within 7 days after the Security Trustee requests such certificate following completion of stamping of the relevant Security. 11.19 INSURANCE (a) ABSOLUTE OBLIGATION: Each Security Provider (other than NTLH) must take out and keep in force insurance for amounts and against risks for which a person holding assets and carrying on a business similar to that of the Security Provider would prudently take out. (b) PAYMENT OF PREMIUMS: Each Security Provider must punctually pay any premium, commission, Tax, other than Excluded Tax in respect of each Finance Party, fire service levy, statutory charges, and any other expense necessary for effecting and maintaining in force each insurance policy. (c) CONTENTS OF INSURANCE POLICY: Each Security Provider must ensure that every insurance policy (other than worker's compensation and public liability): (1) except in the case of any global insurance policy effected by an entity other than a Transaction Party, is taken out in the name of the Security Provider, notes the Security Trustee's interest and insures its insurable interests; (2) except in the case of any global insurance policy effected by an entity other than a Transaction Party, names the Security Trustee as the loss payee (unless under the terms of a reinstatement policy payments are made directly to persons effecting the reinstatement); (3) cannot be terminated or varied by the insurer for the non-payment of the premium in respect of the insurance policy, unless the Agent is given 10 days prior written notice.; and (4) bears an endorsement that notice of any occurrence given by one insured party will be regarded as notice given by all insured parties and that failure by one insured party to observe and fulfil the conditions of the policy will not prejudice the rights of any other insured party. (d) REPUTABLE INSURER: Each Security Provider must take out each insurance policy with a reputable and substantial insurer reasonably approved by the Agent. (e) NO PREJUDICE: Each Security Provider must not do or omit to do, or suffer or permit to be done or not done, anything which may materially prejudice any insurance policy. - -------------------------------------------------------------------------------- page 52 61 NTL Subscription Agreement (f) DELIVER DOCUMENTS: In respect of each insurance policy, each Security Provider must promptly deliver to the Agent from time to time: (1) adequate evidence as to the existence and currency of the insurances required under this clause; and (2) any other detail which the Agent may reasonably require and notify to the Security Provider from time to time. (g) NO CHANGE TO POLICY: A Security Provider must not vary (where the variation could adversely affect the security of the Finance Parties), rescind, terminate or cancel any insurance policy without the written consent of the Agent. (h) FULL DISCLOSURE: Before entering into each insurance policy, each Security Provider must disclose to the insurer all facts which are material to the insurer's risk. (i) NOTIFICATION BY SECURITY PROVIDER: Each Security Provider must notify the Agent as soon as possible of: (1) an event which gives rise to a claim of $5,000,000 or more under an insurance policy; and (2) the cancellation or material variation for any reason of any insurance policy in relation to its Secured Property. (j) DEALING WITH INSURANCE POLICY PROCEEDS: (1) Clauses 11.19(j)(2) and (3) do not apply to proceeds received from any workers' compensation or public liability policy or reinstatement policy to the extent that the proceeds are paid to a person: (A) entitled to be compensated under the workers' compensation or public liability policy; or (B) under a contract for the reinstatement of its Secured Property. (2) If no Event of Default is subsisting the proceeds resulting from a claim under an insurance policy must be paid to the applicable Security Provider. (3) If an Event of Default is subsisting and the Finance Parties have not exercised any Power under the Securities, all proceeds in excess of $20,000,000 in respect of any claim under any insurance policy must be used to pay the Secured Moneys outstanding at that time or at the option of the Agent may be used for any purpose requested by the Security Provider and agreed by the Agent. (k) APPLICATION OF REINSTATEMENT PROCEEDS: If required under the terms of a reinstatement policy, the Security Provider must, unless at the request of the Security Provider the Agent otherwise agrees in writing (such agreement not to be unreasonably withheld), apply all proceeds payable under the reinstatement policy to the reinstatement of its Secured Property. - -------------------------------------------------------------------------------- page 53 62 NTL Subscription Agreement (l) POWER TO TAKE PROCEEDINGS: (1) Before the occurrence of an Event of Default the Borrower alone has full power to make, enforce, settle, compromise, sue on and discharge all claims and recover and receive all moneys payable in respect of any claim under any insurance policy; (2) If an Event of Default has occurred which is subsisting and the Finance Parties have not exercised any Power under the Securities, the Agent alone has full power to make, enforce, settle, compromise, sue on and discharge all claims and recover and receive all moneys payable in respect of any claim under any insurance policy where the proceeds of that claim will or are reasonably likely to exceed $20,000,000. 11.20 HEDGING The Borrower must not enter into any hedging transactions other than: (a) any hedging transactions with the Subscribers entered into for the purposes of hedging the actual or prospective exposure of the Borrower to any interest rate, currency or other risk; and (b) any other unsecured hedging transactions with financial institutions other than the Subscribers entered into for the purposes of hedging the actual or prospective exposure of the Borrower to any interest rate, currency or other risk. 11.21 FINANCIAL UNDERTAKINGS The Borrower must ensure that: (a) GEARING RATIO: on each Relevant Date which falls within a Relevant Period listed below, the Gearing Ratio must not be greater than the amounts listed below:
RELEVANT COVENANT ---------------------------------------------- -------- the period from and including the Signing Date 6.00 to and including 30 June 2002 the period from and including 1 July 2002 to 5.50 and including 30 June 2003 the period from and including 1 July 2003 to 5.00 and including 30 June 2004 the period from and including 1 July 2004 to 4.50 and including 30 June 2005 the period from and including 1 July 2005 4.00
- -------------------------------------------------------------------------------- page 54 63 NTL Subscription Agreement (b) INTEREST COVER RATIO: on each Relevant Date which falls within the Relevant Period listed below the Interest Cover Ratio must not be less than the amounts listed below:
RELEVANT PERIOD COVENANT ----------------------------------------------------------- -------- the period from and including the Signing Date to 2.25 and including 30 June 2002 the period from and including 1 July 2002 to and including 2.25 30 June 2003 the period from and including 1 July 2003 to and including 2.50 30 June 2004 The period from and including 1 July 2004 to and including 3.00 30 June 2005 The period from and including 1 July 2005 3.00
(c) LEVERAGE RATIO: on each Relevant Date the Leverage Ratio is not greater than 40%. 11.22 DEBENTURE TRUST DEED Each Transaction Party consents to the terms of the Debenture Trust Deed and each Master Debenture and undertakes not to do or omit to do any act matter or thing which would prevent the exercise of, or prejudicially affect any of, the rights of the Security Trustee and the Debenture Holders under or in relation to the Debenture Trust Deed and each Master Debenture. - ------------------------------------------------------------------------------- 12 EVENTS OF DEFAULT 12.1 EVENTS OF DEFAULT It is an Event of Default, whether or not it is within the control of any Transaction Party, if: (a) FAILURE TO PAY: a Transaction Party fails to pay or repay any part of the Secured Moneys within 2 Business Days of the due date for payment or repayment, unless: (1) the Transaction Party demonstrates that it had sufficient available funds with its bankers and had given appropriate instructions to make the payment and that the payment would have been made but for temporary technical or administrative difficulties in their banking system; and (2) payment or repayment is received in the manner required within 4 Business Days of the due date. (b) NON-REMEDIABLE FAILURE: any Transaction Party fails to perform or observe any other undertaking, obligation or agreement expressed or implied in, or given in relation to, any Transaction Document and that failure is not, in the reasonable opinion of the Agent, remediable; - -------------------------------------------------------------------------------- page 55 64 NTL Subscription Agreement (c) REMEDIABLE FAILURE: the failure described in clause 12.1(b) is, in the reasonable opinion of the Agent, remediable, and the Transaction Party does not remedy the failure within 10 Business Days, or a longer period determined by the Agent, after receipt by the Transaction Party of a notice from the Agent specifying the failure; (d) AUTHORISATIONS: any Authorisation necessary to enable a Transaction Party to comply with its obligations under any Transaction Document or Material Document ceases to be in full force and effect, which cessation has had or is likely to have a Material Adverse Effect; (e) MISREPRESENTATION: any warranty, representation or statement by any Transaction Party is false, misleading or incorrect when made or regarded as made by the Transaction Party under or in relation to any Transaction Document or Material Document; (f) CROSS DEFAULT: any present or future, or actual, prospective or contingent, indebtedness of any Transaction Party in respect of any financial accommodation (other than under any Transaction Document) which in aggregate exceeds an amount of $5,000,000 including, but not limited to, moneys payable under a Guarantee: (1) is or becomes due and payable or is or becomes capable of being declared due and payable before the due date for payment; or (2) is not paid when due or upon the expiration of any period of grace which may apply; (g) ENCUMBRANCE: any Encumbrance is or becomes enforceable against any asset of any Transaction Party and, in the case of an Encumbrance over an asset of NTLH other than its Secured Property, the fact that it is or becomes enforceable could have a Material Adverse Effect; (h) JUDGMENT: a final judgment in an amount exceeding $5,000,000 is obtained against any Transaction Party and is not set aside or satisfied within 7 days and, in the case of a judgment obtained against NTLH, the fact that it is not set aside or satisfied could have a Material Adverse Effect; (i) EXECUTION: any distress, attachment, execution or other process of a Governmental Agency in an amount exceeding $5,000,000 is issued against, levied or enforced upon any of the assets of any NTL Party and is not set aside or satisfied within 10 Business Days; (j) RECEIVER ETC: a receiver, receiver and manager, official manager, trustee, other controller (as defined in the Corporations Law) or similar official is appointed, or steps are taken for such appointment, over any of the assets or undertaking of any Transaction Party; (k) RELEASE OF UNCALLED CAPITAL: any NTL Party passes or takes any steps to pass a resolution under section 254N of the Corporations Law without the prior written consent of the Agent; (l) FINANCIAL ASSISTANCE: any NTL Party passes or takes any steps to pass a resolution under section 260B of the Corporations Law, without the prior written consent of the Agent; (m) SUSPENDS PAYMENT: any Transaction Party suspends payment of its debts generally; - -------------------------------------------------------------------------------- page 56 65 NTL Subscription Agreement (n) INSOLVENCY: any Transaction Party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Law, or is presumed to be insolvent under the Corporations Law; (o) ARRANGEMENTS: any Transaction Party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them; (p) CEASING BUSINESS: any Transaction Party ceases or threatens to cease to carry on business; (q) ADMINISTRATOR: an administrator is appointed or a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator to any Transaction Party; (r) WINDING UP: an application or order is made for the winding-up or dissolution of any Transaction Party or a resolution is passed or any steps are taken to pass a resolution for the winding-up or dissolution of any Transaction Party otherwise than for the purpose of an amalgamation or reconstruction which has the prior written consent of the Agent; (s) DEREGISTRATION: a notice under section 601AB of the Corporations Law is given to, or an application under section 601AA is made by, or in respect of any Transaction Party; (t) VITIATION OF TRANSACTION DOCUMENTS: (1) all or any part of any provision of any Transaction Document is or becomes illegal, void, voidable, unenforceable or otherwise of limited force or effect as against a Transaction Party; (2) the execution, delivery or performance of any Transaction Document by any Transaction Party violates, breaches or results in a contravention of any law, regulation or Authorisation; (u) FINANCIAL RATIOS: subject to clause 12.5, the Borrower breaches clause 11.21; (v) ADVERSE CHANGE: any event or series of events (whether or not related) occurs which has had or is likely to have a Material Adverse Effect; (w) MATERIAL DOCUMENT: (1) a Material Document is prematurely terminated or it becomes unlawful for any party to a Material Document to perform its obligations under it; or (2) subject to clause 12.4 and to the Tripartite Deeds, any Transaction Party fails to comply with any term of a Material Document which failure to comply entitles, or would with the giving of notice, expiration of time or any other condition entitle, a party to terminate the Material Document; (x) ENVIRONMENTAL EVENT: (1) a Governmental Agency takes action; (2) there is a claim; or - -------------------------------------------------------------------------------- page 57 66 NTL Subscription Agreement (3) there is a requirement of expenditure or of cessation or alteration of activity, under an Environmental Law which has had or is likely to have a Material Adverse Effect; (y) NATIVE TITLE EVENT: there is a native title or aboriginal relic, place or heritage claim, determination, order or declaration made against any of the Secured Property that has had or is likely to have a Material Adverse Effect; (z) ENVIRONMENTAL LIABILITIES: a Transaction Party incurs any Environmental Liability which has had or is likely to have a Material Adverse Effect. 12.2 EFFECT OF EVENT OF DEFAULT (a) Upon or at any time after the occurrence of an Event of Default, but subject to clause 18.2, the Agent may, and if so directed by the Majority Subscribers must, by notice to each Transaction Party declare that: (1) the Secured Moneys are immediately due and payable; or (2) the Aggregate Commitment is cancelled, or make each of the declarations contained in clause 12.2(a)(1) and clause 12.2(a)(2) respectively. (b) Each Transaction Party must upon receipt of a notice under clause 12.2(a) immediately repay in full the Secured Moneys. (c) The Transaction Documents may be enforced without notice to or consent by a Transaction Party or any other person even if the Agent or the Subscribers accept any part of the Secured Moneys after an Event of Default or there has been any other Event of Default. 12.3 REVIEW EVENT (a) A Review Event occurs if, after the date of this agreement: (1) NTL Incorporated ceases, directly or indirectly, to be beneficially entitled to at least 50% of the ordinary voting shares (on a fully diluted basis) in the Borrower; and (2) France Telecom SA is not, directly or indirectly, beneficially entitled to at least 50% of the ordinary voting shares (on a fully diluted basis) in the Borrower. (b) If a Review Event occurs: (1) the Borrower must give notice of the Review Event to the Agent; and (2) the Agent (acting on the instructions of all Subscribers) may within 60 days of such notice notify the Borrower that it wishes to review the terms and condition of the Facilities. (c) If the Agent gives notice under clause 12.3(b)(2) and the Agent and the Borrower have not agreed revised terms for the continuation of the Facilities within the 60 day period referred to in that clause then the - -------------------------------------------------------------------------------- page 58 67 NTL Subscription Agreement Transaction Parties must, within 6 months of the expiry of that 60 day period, repay the Secured Moneys in full. 12.4 MATERIAL DOCUMENT DEFAULT It will not be an Event of Default under clause 12.1(w)(2) if: (a) the failure by a Transaction Party to comply under the Material Document referred to in clause 12.1 (w)(2) (the RELEVANT DEFAULT) is capable of remedy; (b) the Material Document contains a grace period after notice to the relevant Transaction Party of the Relevant Default during which the Transaction Party may remedy the default before the Material Document is or may be terminated (CONTRACT GRACE PERIOD); (c) the Borrower complies with its obligation under clause 11.4(g) in respect of the Relevant Default before the expiry of the first half of the Contract Grace Period; (d) a Transaction Party is diligently pursuing a remedy of the Relevant Default during the first half of the Contract Grace Period; and (e) before the end of the first half of the Contract Grace Period the Agent receives evidence satisfactory to it that the Relevant Default has been cured to the satisfaction of the party to the relevant Material Document entitled to terminate the Material Contract at the expiry of the Contract Grace Period. 12.5 FINANCIAL RATIOS DEFAULT (a) Subject to clause 12.5(b), a breach of clause 11.21 will not be an Event of Default under clause 12.1(u) if the Borrower cures the breach to the satisfaction of the Agent within 5 Business Days of notice of the breach to the Borrower from the Agent. (b) The Borrower may not cure under clause 12.5(a) a breach of clause 11.21 for more than two consecutive Relevant Periods and may not cure under clause 12.5(a) more than 3 breaches of clause 11.21 in aggregate. - ------------------------------------------------------------------------------- 13 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION 13.1 INCREASED COSTS If a Finance Party determines that it or any of its holding companies is affected by any future, or any change in any present or future, law, regulation, order, treaty, official directive or request (with which, if not having the force of law, compliance is in accordance with the practice of responsible bankers and financial institutions in the jurisdiction concerned) including, but not limited to in respect of: (a) any reserve, liquidity, capital adequacy, capital allocation, special deposit or similar requirement; or (b) Tax (other than Excluded Tax in respect of that Finance Party or any of its holding companies) on or in respect of payments made or to be made to that Finance Party under a Transaction Document, - -------------------------------------------------------------------------------- page 59 68 NTL Subscription Agreement or a present or future interpretation or administration of any of them by a Governmental Agency, and that, as a result: (c) the effective cost to that Finance Party of making, funding or maintaining a Facility or its Pro Rata Share of the Principal Outstanding or performing any of its obligations under or in respect of the Transaction Documents is in any way directly or indirectly increased; or (d) any amount paid or payable to, or received or receivable by, that Finance Party or the effective return to that Finance Party under the Transaction Documents is in any way directly or indirectly reduced; or (e) that Finance Party or any of its holding companies makes, or is required to make, any payment or foregoes any interest or other return on or calculated by reference to: (1) any sum received or receivable by it under or in respect of the Transaction Documents in an amount which that Finance Party considers material; or (2) any capital or other amount which is or becomes directly or indirectly allocated by that Finance Party or any of its holding companies to its Commitment in an amount which that Finance Party considers material; or (f) that Finance Party or any of its holding companies is restricted in its capacity to enter into, or is prevented from entering into, any other transaction with any consequence referred to in clause 13.1(c), (d) or (e) or with any other cost or loss of return to that Finance Party or any of its holding companies, then, and in each such case: (g) when it becomes aware of the relevant result and has calculated or otherwise determined the relevant effects that Finance Party must promptly notify the Borrower of such event; and (h) on demand from time to time by that Finance Party in accordance with and subject to clause 13.2 the Borrower must pay to that Finance Party the amount which compensates that Finance Party for such increased cost, reduction, payment or foregone interest or other loss of return, except whether such increased cost, reduction, payment or foregone interest or other loss of return arises as a result of a self imposed change in the status of a Finance Party. 13.2 PROCEDURE FOR CLAIM (a) If a Finance Party makes a claim under clause 13.1(h) it must deliver to the Borrower a certificate specifying the event by reason of which it is entitled to make the claim and setting out in detail the basis of the computation of the claim; (b) In the absence of manifest error, a certificate by an Officer of a Finance Party is prima facie evidence of the amount of any claim under clause 13.1(h). (c) If a Finance Party and its holding companies act in good faith in all the circumstances it will not be a defence against a Finance Party that the cost, - -------------------------------------------------------------------------------- page 60 69 NTL Subscription Agreement reduction, payment, foregone amount or loss of return could have been avoided. (d) In determining amounts payable under clause 13.1 the Finance Party may use averaging and attribution methods commonly used by the Finance Party or any other methods it considers appropriate to determine the amount. (e) The obligations of the Borrower under clause 13.1 survive repayment of any relevant Funding Portion and the termination of this agreement. (f) Each Finance Party must use all reasonable endeavours to minimise the amount of any claim, but failure to do so does not release the Borrower of its obligations under this clause 13. 13.3 PREPAYMENT ON INCREASED COST (a) If the Borrower receives a demand under clause 13.1(h) in respect of a Finance Party, the Borrower may by notice in writing given to the Agent. (b) before 5.00pm (Sydney time) on the 30th day following the date of that demand notify the Agent that it wishes to prepay the amount of the Principal Outstanding to that Finance Party which is affected by the event or events referred to in the demand. (c) A notice from the Borrower under clause 13.3(a) is irrevocable and the Borrower must on the later of 60 days after giving the notice or on the last day of the then current Funding Period, and without the necessity for any demand, prepay to the Agent on account of the Finance Party the relevant amount of the Principal Outstanding and all interest accrued on or in respect of that amount. (d) Pending payment by the Borrower of any amount demanded by a Finance Party under clause 13.1(h), the obligations of each Subscriber in respect of the affected amount of Principal Outstanding under this agreement will be suspended, and, upon the Borrower giving a notice under clause 13.3(a) those obligations will terminate. 13.4 ILLEGALITY If any event occurs (including, but not limited to, any change in, or the introduction, implementation, operation or taking effect of, any law, regulation, treaty, order or official directive, or in their interpretation or application by any Governmental Agency) which makes it unlawful for a Subscriber to make, fund or maintain its Commitment or its Pro Rata Share of the Principal Outstanding or to perform its obligations under any Transaction Document then: (a) that Subscriber's obligations under the Transaction Documents are immediately suspended for the duration of such illegality or other effect; and (b) that Subscriber may, by notice to the Borrower terminate its obligations under the Transaction Documents, whereupon the Commitment of that Subscriber terminates; and (c) if required by the applicable event, or its effect, or if necessary to prevent or remedy a breach or to comply with any applicable law, regulation, - -------------------------------------------------------------------------------- page 61 70 NTL Subscription Agreement treaty, order or official directive the Borrower must immediately prepay to the Agent for the account of that Subscriber the Secured Moneys in respect of that Subscriber in full or, if in that Subscriber's opinion delay in prepayment does not compound such breach or affect such compliance, at the end of at least the longer of 30 days and the period ending on the next occurring Interest Payment Date (or such lesser period if the applicable law, regulation, treaty, order or official directive requires) upon prior notice to that effect from the Agent. - ------------------------------------------------------------------------------ 14 GUARANTEE 14.1 GUARANTEE The Guarantors jointly and severally and unconditionally and irrevocably guarantee to each Finance Party the payment of the Secured Moneys due to each Finance Party. 14.2 PAYMENT (a) If the Secured Moneys are not paid when due, each Guarantor must within 5 Business Days of demand from the Agent pay to the Agent for the account of the Finance Parties the Secured Moneys in the same manner and currency as the Secured Moneys are required to be paid. (b) A demand under clause 14.2(a) may be made at any time and from time to time. 14.3 SECURITIES FOR OTHER MONEYS Each Finance Party may apply any amounts received by it or recovered under: (a) any Collateral Security; and (b) any other document or agreement, which is a security for any of the Secured Moneys and any other moneys in such manner as it determines in its absolute discretion. 14.4 AMOUNT OF SECURED MONEYS (a) This clause 14 applies to the present and future amount from time to time of the Secured Moneys. (b) The obligations of each Guarantor under this clause 14 extend to any increase in the Secured Moneys as a result of: (1) any amendment, supplement, renewal or replacement of any Transaction Document to which a Transaction Party and any Finance Party is a party; or (2) the occurrence of any other thing. (c) Clause 14.4(b): (1) applies regardless of whether any Guarantor is aware of or consented to or is given notice of any amendment, supplement, renewal or replacement of any agreement to which a Transaction - -------------------------------------------------------------------------------- page 62 71 NTL Subscription Agreement Party and any Finance Party is a party or the occurrence of any other thing; and (2) does not limit the obligations of any Guarantor under this clause 14. 14.5 PROOF BY AGENT In the event of the liquidation of a Transaction Party, each Guarantor authorises each Finance Party to prove for all moneys which any Guarantor has paid or is or may be obliged to pay under any Transaction Document, any other document or agreement or otherwise in respect of the Secured Moneys. 14.6 AVOIDANCE OF PAYMENTS (a) If any payment, conveyance, transfer or other transaction relating to or affecting the Secured Moneys is: (1) void, voidable or unenforceable in whole or in part; or (2) is claimed to be void, voidable or unenforceable and that claim is upheld, conceded or compromised in whole or in part, the liability of each Guarantor under this clause 14 and any Power is the same as if: (3) that payment, conveyance, transfer or transaction (or the void, voidable or unenforceable part of it); and (4) any release, settlement or discharge made in reliance on any thing referred to in clause 14.6(a)(3), had not been made and each Guarantor must immediately take all action and sign all documents necessary or required by the Agent to restore to each Finance Party this clause 14 and any Encumbrance held by the Finance Parties immediately before the payment, conveyance, transfer or transaction. (b) Clause 14.6(a) applies whether or not any Finance Party knew, or ought to have known, of anything referred to in that clause 14.6(a). 14.7 INDEMNITY FOR AVOIDANCE OF SECURED MONEYS (a) If any of the Secured Moneys (or moneys which would have been Secured Moneys had they not been irrecoverable) are irrecoverable by any Finance Party: (1) from any Transaction Party; or (2) from a Guarantor on the footing of a guarantee, the Guarantors jointly and severally and unconditionally and irrevocably and, as a separate and principal obligation: (3) indemnify each Finance Party against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered, paid or incurred by that Finance Party in relation to the non- payment of those moneys; and (4) must pay to the Agent for the account of that Finance Party an amount equal to those moneys. - -------------------------------------------------------------------------------- page 63 72 NTL Subscription Agreement (b) Clause 14.7(a) applies to the Secured Moneys (or moneys which would have been Secured Moneys had they not been irrecoverable) which are or may be irrecoverable irrespective of whether: (1) they are or may be irrecoverable by reason of any event described in clause 14.12; (2) they are or may be irrecoverable by reason of any other fact or circumstance whatsoever; (3) the transactions or any of them relating to those moneys are void or illegal or avoided or otherwise unenforceable; and (4) any matters relating to the Secured Moneys are or should have been within the knowledge of any Finance Party. 14.8 NO OBLIGATION TO MARSHAL A Finance Party is not required to marshal or to enforce or apply under or appropriate, recover or exercise: (a) any Encumbrance, Guarantee or Collateral Security or other document or agreement held, at any time, by or on behalf of that or any other Finance Party; or (b) any money or asset which that Finance Party, at any time, holds or is entitled to receive. 14.9 NON-EXERCISE OF GUARANTORS' RIGHTS A Guarantor must not exercise any rights it may have inconsistent with this clause 14. 14.10 PRINCIPAL AND INDEPENDENT OBLIGATION (a) This clause 14 is: (1) a principal obligation and is not to be treated as ancillary or collateral to any other right or obligation; and (2) independent of and not in substitution for or affected by any other Collateral Security which any Finance Party may hold in respect of the Secured Moneys or any obligations of any Transaction Party or any other person. (b) This clause 14 is enforceable against a Guarantor: (1) without first having recourse to any Collateral Security; (2) whether or not any Finance Party has: (A) made demand upon any Transaction Party (other than any demand specifically required to be given, or notice required to be issued, to a Guarantor under clause 14.2 or any other provision of a Transaction Document); or (B) given notice to any Transaction Party or any other person in respect of any thing (other than any demand specifically required to be given, or notice required to be issued, to a - -------------------------------------------------------------------------------- page 64 73 NTL Subscription Agreement Guarantor under clause 14.2 or any other provision of a Transaction Document); or (C) taken any other steps against any Transaction Party or any other person; (3) whether or not any Secured Moneys is due; and (4) despite the occurrence of any event described in clause 14.12. 14.11 SUSPENSE ACCOUNT (a) Each Finance Party may apply to the credit of a suspense account: (1) any amounts received under this clause 14; (2) any dividends, distributions or other amounts received in respect of the Secured Moneys in any liquidation; and (3) any other amounts received from a Guarantor, a Transaction Party or any other person in respect of the Secured Moneys. (b) Each Finance Party may retain the amounts in the suspense account for as long as it determines it is reasonably necessary and will apply them in or towards satisfaction of the Secured Moneys as soon as it is satisfied, acting reasonably, that it is appropriate to do so. 14.12 UNCONDITIONAL NATURE OF OBLIGATIONS (a) This clause 14 and the obligations of each Guarantor under the Transaction Documents are not released or discharged or otherwise affected by anything which but for this provision might have that effect, including, but not limited to: (1) the grant to any Transaction Party or any other person of any time, waiver, covenant not to sue or other indulgence; (2) the release (including without limitation a release as part of any novation) or discharge of any Transaction Party or any other person; (3) the cessation of the obligations, in whole or in part, of any Transaction Party or any other person under any Transaction Document or any other document or agreement; (4) the liquidation of any Transaction Party or any other person; (5) any arrangement, composition or compromise entered into by any Finance Party, any Transaction Party or any other person; (6) any Transaction Document or any other document or agreement being in whole or in part illegal, void, voidable, avoided, unenforceable or otherwise of limited force or effect; (7) any extinguishment, failure, loss, release, discharge, abandonment, impairment, compound, composition or compromise, in whole or in part of any Transaction Document or any other document or agreement; (8) any Collateral Security being given to any Finance Party by any Transaction Party or any other person; - -------------------------------------------------------------------------------- page 65 74 NTL Subscription Agreement (9) any alteration, amendment, variation, supplement, renewal or replacement of any Transaction Document or any other document or agreement; (10) any moratorium or other suspension of any Power; (11) any Finance Party, or a Receiver or Attorney exercising or enforcing, delaying or refraining from exercising or enforcing, or being not entitled or unable to exercise or enforce any Power; (12) any Finance Party obtaining a judgment against any Transaction Party or any other person for the payment of any of the Secured Moneys; (13) any transaction, agreement or arrangement that may take place with any Finance Party, any Transaction Party or any other person; (14) any payment to any Finance Party, a Receiver or Attorney, including any payment which at the payment date or at any time after the payment date is in whole or in part illegal, void, voidable, avoided or unenforceable; (15) any failure to give effective notice to any Transaction Party or any other person of any default under any Transaction Document or any other document or agreement; (16) any legal limitation, disability or incapacity of any Transaction Party or of any other person; (17) any breach of any Transaction Document or any other document or agreement; (18) the acceptance of the repudiation of, or termination of, any Transaction Document or any other document or agreement; (19) any Secured Moneys being irrecoverable for any reason; (20) any disclaimer by any Transaction Party or any other person of any Transaction Document or any other document or agreement; (21) any assignment, novation, assumption or transfer of, or other dealing with, any Powers or any other rights or obligations under any Transaction Document or any other document or agreement; (22) the opening of a new account of any Transaction Party with any Finance Party or any transaction on or relating to the new account; (23) any prejudice (including, but not limited to, material prejudice) to any person as a result of: (A) any thing done, or omitted by any Finance Party, any Transaction Party or any other person; (B) any Finance Party, a Receiver, Attorney or any other person selling or realising any property the subject of a Collateral Security at less than the best price; (C) any failure or neglect by any Finance Party, a Receiver, Attorney or any other person to recover the Secured Moneys from any Transaction Party or by the realisation of any property the subject of a Collateral Security; or - -------------------------------------------------------------------------------- page 66 75 NTL Subscription Agreement (D) any other thing; (24) the receipt by any Finance Party of any dividend, distribution or other payment in respect of any liquidation; (25) the failure of any other Guarantor or any other person who is intended to become a co-surety or co-indemnifier of that Guarantor to execute this agreement or any other document; or (26) any other act, omission, matter or thing whatsoever whether negligent or not. (b) Clause 14.12(a) applies irrespective of: (1) the consent or knowledge or lack of consent or knowledge, of any Finance Party, any Transaction Party or any other person of any event described in clause 14.12(a); or (2) any rule of law or equity to the contrary. (c) For the avoidance of doubt clauses 14.12(b)(23) and 14.12(b)(26)f do not restrict any rights of a Transaction Party against a Finance Party where that Finance Party has been negligent or breached any of its obligations under a Transaction Document. 14.13 NO COMPETITION (a) Until the Secured Moneys have been fully paid and this clause 14 has been finally discharged, a Guarantor is not entitled to: (1) be subrogated to any Finance Party; (2) claim or receive the benefit of: (A) any Encumbrance, Guarantee or other document or agreement of which any Finance Party has the benefit; (B) any moneys held by any Finance Party; or (C) any Power; (3) subject to clause 14.13(b) either directly or indirectly to prove in, claim in competition with any Finance Party or receive the benefit of any distribution, dividend or payment arising out of or relating to the liquidation of any Transaction Party liable to pay the Secured Moneys; (4) make a claim or exercise or enforce any right, power or remedy (including, but not limited to, under an Encumbrance or Guarantee or by way of contribution) against any Transaction Party liable to pay the Secured Moneys; (5) accept, procure the grant of or allow to exist any Encumbrance in favour of a Guarantor from any Transaction Party liable to pay the Secured Moneys; (6) exercise or attempt to exercise any right of set-off against, or realise any Encumbrance taken from, any Transaction Party liable to pay the Secured Moneys; or - -------------------------------------------------------------------------------- page 67 76 NTL Subscription Agreement (7) raise any defence or counterclaim in reduction or discharge of its obligations under this clause 14. (b) If required by any Finance Party, a Guarantor must prove in any liquidation of any Transaction Party liable to pay the Secured Moneys for all moneys owed to the Guarantor. (c) All moneys recovered by a Guarantor from any liquidation or under any Encumbrance from any Transaction Party liable to pay the Secured Moneys must be received and held in trust by the Guarantor for the Finance Parties to the extent of the unsatisfied liability of the Guarantor under this clause 14. (d) A Guarantor must not do or seek, attempt or purport to do anything referred to in clause 14.13(a). 14.14 CONTINUING GUARANTEE This clause 14 is a continuing obligation of each Guarantor, despite: (a) any settlement of account; or (b) the occurrence of any other thing, and remains in full force and effect until: (c) all the Secured Moneys have been paid in full; and (d) this clause 14 has been finally discharged by all the Finance Parties. 14.15 VARIATION This clause 14 extends to cover the Transaction Documents as amended, varied or replaced, whether with or without the consent of any one or more of the Guarantors, including, but not limited to, any increase in the limit or maximum principal amount available under a Transaction Document. 14.16 JUDGMENTS A final judgment obtained against a relevant Transaction Party will be conclusive as against each Guarantor. 14.17 ADDITIONAL GUARANTORS The Borrower must ensure that any Subsidiary of the Borrower (other than an Excluded Subsidiary of the Borrower) must, within 30 Business Days after it becomes a Subsidiary of the Borrower or ceases to be an Excluded Subsidiary of the Borrower: (a) fully satisfy all the conditions set out in clause 14.18; (b) execute and deliver to the Agent a Guarantee Assumption Agreement; (c) execute and deliver to the Agent a fixed and floating charge over all of its assets in a form reasonably acceptable to the Agent; (d) duly stamp each document referred to in this clause 14.17; and (e) give to the Agent all duly completed forms, notices and other documents required to register or file with the appropriate Governmental Agency any document referred to in this clause 14.17. - -------------------------------------------------------------------------------- page 68 77 NTL Subscription Agreement 14.18 CONDITIONS The conditions referred to in clause 14.17(a) are: (a) PRE-FUNDING CERTIFICATE: before execution by a Guarantor of any document referred to in clause 14.17, the Agent receives a certificate in the form of, and specifying the matters in, schedule 3 in respect of that Guarantor signed by an Officer of that Guarantor together with all specified attachments and dated not more than 7 days before that Guarantor executes such a document; (b) DECLARATION AS TO SOLVENCY: before, but not earlier than 2 Business Days before execution by a Guarantor of any document referred to in clause 14.17, the Agent receives a certificate in relation to the Guarantor signed by a director of the Guarantor stating that, at the time of execution of those documents the Guarantor is solvent and will not become insolvent because those documents are executed or performed by the Guarantor; (c) AUTHORISATIONS: the Agent receives all Authorisations required for the execution of any document referred to in clause 14.17 and each Authorisation is in full force and effect and each statement contained in them is true and complete; and (d) RELEVANT LAWS: the execution, delivery and performance of a document referred to in clause 14.17 will not violate, breach, or result in a contravention of, any law, regulation or Authorisation. - ------------------------------------------------------------------------------- 15 INDEMNITIES 15.1 GENERAL INDEMNITY (a) The Borrower indemnifies each Finance Party against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment which that Finance Party, a Receiver (whether acting as agent of the Borrower or of a Finance Party) or an Attorney pays, suffers, incurs or is liable for, in respect of any of the following: (1) a Funding Portion required by a Funding Notice, not being made for any reason including, but not limited to, any failure by a Transaction Party to fulfil any condition precedent contained in clause 2, but excluding any default by that Finance Party; (2) any repayment or prepayment of all or part of a Funding Portion being made on a date other than the last day of the Funding Period for that Funding Portion; (3) the occurrence of any Potential Event of Default or Event of Default; (4) a Finance Party exercising its Powers consequent upon or arising out of the occurrence of any Potential Event of Default or Event of Default; (5) any payment made by the Security Trustee to the Commonwealth of Australia under the Commonwealth Tripartite Deed; (6) any payment made by a Subscriber to the Agent under clause 18.10; - -------------------------------------------------------------------------------- page 69 78 NTL Subscription Agreement (7) any statement in, conduct relying on or omission or alleged omission from: (A) any information memorandum or loan proposal, to the extent that the contents of such information memorandum or loan proposal have been provided or approved by the Borrower or on its behalf for the purpose for which it was or is used; or (B) any document or information prepared or authorised by the Borrower or on its behalf for the purpose for which the relevant document or information was or is used, or any claim in respect of any of the above (including legal costs on a full indemnity basis); (8) any failure by a Transaction Party to comply with any Environmental Law; (9) any Finance Party incurring any liability in respect of any Environmental Law as a result of it being a party to or exercising its Powers under a Transaction Document. (b) Without limitation to the indemnity contained in clause 15.1(a), that indemnity includes the amount determined by a Finance Party as being incurred by reason of the liquidation or re-employment of deposits or other funds acquired or contracted for by the Finance Party to fund or maintain its Commitment, its Pro Rata Share of the Principal Outstanding or the relevant Funding Portion and includes, but is not limited to, loss of margin. (c) Each Finance Party will reimburse the Borrower for any gains which the Finance Party makes in respect of any repayment or prepayment of all or part of a Funding Portion being made on a date other than the last day of the Funding Period for that Funding Portion net of any Taxes, costs, charges or expenses incurred by that Finance Party in relation to any such gain. 15.2 FOREIGN CURRENCY INDEMNITY If, at any time: (a) a Finance Party, a Receiver or an Attorney receives or recovers any amount payable by a Transaction Party for any reason including, but not limited to: (1) any judgment or order of any Governmental Agency; (2) any breach of any Transaction Document; (3) the liquidation or bankruptcy of the Transaction Party or any proof or claim in that liquidation or bankruptcy; or (4) any other thing into which the obligations of the Transaction Party may have become merged; and (b) the Payment Currency is not the Relevant Currency, - -------------------------------------------------------------------------------- page 70 79 NTL Subscription Agreement the Borrower indemnifies each Finance Party, Receiver or Attorney against any shortfall between the amount payable in the Relevant Currency and the amount actually or notionally received or recovered by each Finance Party, Receiver or Attorney after the Payment Currency is converted or translated into the Relevant Currency under clause 15.3. 15.3 CONVERSION OF CURRENCIES In making any currency conversion under clause 15.2, a Finance Party, Receiver or Attorney may itself or through its bankers purchase one currency with another, whether or not through an intermediate currency, whether spot or forward, in the manner and amounts and at the times it thinks fit. 15.4 CONTINUING INDEMNITIES AND EVIDENCE OF LOSS (a) Each indemnity of the a Transaction Party contained in this agreement is a continuing obligation of the Transaction Party and that Guarantor, despite: (1) any settlement of account; or (2) the occurrence of any other thing, and remains in full force and effect until: (3) all moneys owing, contingently or otherwise, under any of the Transaction Documents have been paid in full; (4) the Secured Moneys are fully and finally repaid; and (5) each Security in respect of all the Secured Property subject to each Security has been finally discharged. (b) Each indemnity of a Transaction Party contained in this agreement is an additional, separate and independent obligation of the Transaction Party and no one indemnity limits the generality of any other indemnity. (c) Each indemnity of a Transaction Party contained in this agreement survives the termination of any Transaction Document. (d) A certificate under the hand of an Officer of a Finance Party detailing the amount of any damage, loss, liability, cost, charge, expense, outgoing or payment covered by any indemnity in this agreement is sufficient evidence unless the contrary is proved. - ------------------------------------------------------------------------------- 16 TAX, COSTS AND EXPENSES 16.1 TAX (a) The Borrower must pay any Tax, other than an Excluded Tax in respect of any Finance Party, in respect of the execution, delivery, performance, release, discharge, amendment, enforcement or attempted enforcement or otherwise in respect of any of the following: (1) any Transaction Document; (2) any agreement or document entered into or signed under any Transaction Document; and - -------------------------------------------------------------------------------- page 71 80 NTL Subscription Agreement (3) any transaction contemplated under any Transaction Document or any agreement or document described in clause 16.1(a)(2). (b) The Borrower must pay any fine, penalty or other cost in respect of a failure to pay any Tax described in clause 16.1(a) except to the extent that the fine, penalty or other cost is caused by the Agent's failure to lodge money received from the Borrower within 10 Business Days before the due date for lodgement. (c) The Borrower indemnifies each Finance Party against any amount payable under clause 16.1(a) or 16.1(b) or both. 16.2 COSTS AND EXPENSES The Borrower must pay all costs and expenses (which, in the case of costs and expenses under clause 16.1(a) incurred where no Event of Default subsists, must be reasonable) of each Finance Party and any employee, Officer, agent or contractor of each Finance Party in relation to: (a) the negotiation, preparation, execution, delivery, stamping, registration, completion, variation and discharge of any Transaction Document or any agreement or document described in clause 16.1(a); (b) the enforcement, protection or waiver, or attempted or contemplated enforcement or protection, of any rights under any Transaction Document or any agreement or document described in clause 16.1(a); (c) the consent or approval of a Finance Party given under any Transaction Document or any agreement or document described in clause 16.1(a) (provided that in the case of legal costs and expenses, unless an Event of Default subsists, the Borrower is only required to pay the reasonable legal costs and expenses of one firm acting for all Finance Parties); and (d) any enquiry by any Governmental Agency involving the Borrower, including, but not limited to, any administration costs of each Finance Party in connection with the matters referred to in clause 16.2(b) and (d) and any legal costs and expenses and any professional consultant's fees for any of the above on a full indemnity basis. 16.3 GST If GST is or will be imposed on a supply made under or in connection with a Transaction Document by a Finance Party, the Finance Party may, to the extent that the consideration otherwise provided for that supply is not stated to include an amount in respect of GST on the supply: (a) (1) increase the consideration otherwise provided for that supply under the Transaction Document by the amount of that GST; or (2) otherwise recover from the recipient of the supply the amount of that GST; (b) that Finance Party must issue a Tax Invoice to the recipient of the supply no later than 7 days following payment of the GST inclusive of consideration for that supply. - -------------------------------------------------------------------------------- page 72 81 NTL Subscription Agreement - ------------------------------------------------------------------------------- 17 INTEREST ON OVERDUE AMOUNTS 17.1 PAYMENT OF INTEREST Each Transaction Party must pay interest on: (a) any of the Secured Moneys due and payable, but unpaid; and (b) on any interest payable but unpaid under clause 17. 17.2 ACCRUAL OF INTEREST The interest payable under this clause 17: (a) accrues from day to day from and including the due date for payment up to the actual date of payment, before and, as an additional and independent obligation, after any judgment or other thing into which the liability to pay the Secured Moneys becomes merged; and (b) may be capitalised at 30 day intervals. 17.3 RATE OF INTEREST The rate of interest payable under this clause 17 on any part the Secured Moneys is the higher of: (a) the Overdue Rate determined by the Agent: (1) on the date that part of the Secured Moneys becomes due and payable but is unpaid; and (2) on each date which is 30 days after the immediately preceding date on which the Overdue Rate was determined under this clause 17.3(a); and (b) the rate fixed or payable under a judgment or other thing referred to in clause 17.3(a). - ------------------------------------------------------------------------------- 18 RELATIONS BETWEEN THE AGENT AND THE SUBSCRIBERS 18.1 APPOINTMENT OF THE AGENT (a) Subject to clause 18.16, each Subscriber irrevocably appoints and authorises the Agent to: (1) enter into and execute the Transaction Documents (other than this agreement) for and on its behalf; and (2) act as its agent under the Transaction Documents with such Powers as are expressly delegated to the Agent by the terms of the Transaction Documents together with such other Powers as are reasonably incidental to those first-mentioned Powers. (b) The Agent only has those duties or responsibilities which are expressly specified in any Transaction Document or any other written agreement between the Agent and the Subscribers (any such agreement being regarded as a Transaction Document for the purposes of this clause 18). - -------------------------------------------------------------------------------- page 73 82 NTL Subscription Agreement 18.2 EVENT OF DEFAULT AND AGENT'S POWER (a) Subject to clause 18.2(b), if an Event of Default occurs the Agent may, in its discretion, and must if directed by the Majority Subscribers, exercise the option of the Agent under clause 12.2. (b) The Agent must demand that the Borrower repay the Secured Moneys when the Agent is entitled to do so under clause 2.5(d) (unless directed by all Subscribers not to do so) and must exercise the options of the Agent under clause 12.2(a)(1) and 12.2(a)(2) (unless directed not to do so by all Subscribers) if the Borrower does not comply with that demand. 18.3 DISCRETION OF THE AGENT (a) In exercising its Powers under the Transaction Documents the Agent must act in accordance with the instructions (if any) of the Majority Subscribers or, if expressly required by the terms of this agreement, on the instructions of all Subscribers. (b) When seeking instructions from the Subscribers, the Agent must specify in writing to all Subscribers (REQUEST) a period within which instructions must be provided (the period being the INSTRUCTION PERIOD) which must be a period of thirty days from the date of the Request or such other reasonable period as the Agent specifies in the Request (having regard to the number of Subscribers, the time required to liaise with the Subscribers, the credit requirements and customary procedures of the Subscribers, the subject matter and the urgency of the Request and any other matters that the Agent considers to be appropriate to take into account). (c) In the absence of any such instructions from a Subscriber at the end of the Instruction Period, that Subscriber will be deemed to have not approved those matters specified in the Request for the purpose only of determining whether instructions have been given by the Majority Subscribers. Any action taken by the Agent in accordance with this clause 18 are binding upon all the Subscribers. (d) Notwithstanding the foregoing the Agent is not obliged to take any action under any Transaction Document until it is first indemnified to its satisfaction in accordance with clause 18.10. (e) Except where any Transaction Document otherwise expressly provides or the consent, approval, agreement or determination of or by the Subscribers or Majority Subscribers is required, the Agent is not obliged to consult with the Subscribers before giving any consent, approval or agreement or making any determination under any Transaction Document. 18.4 BORROWER NOT CONCERNED TO ENQUIRE (a) The Borrower is not concerned to enquire as to whether any instructions have been given to the Agent by the Majority Subscribers or all of the Subscribers or as to the terms of those instructions. (b) As between the Borrower on the one hand and the Agent and the Subscribers on the other hand, all action taken by the Agent under the Transaction Documents is regarded as authorised by the Subscribers. - -------------------------------------------------------------------------------- page 74 83 NTL Subscription Agreement 18.5 LIABILITY OF THE AGENT (a) The Agent is not, by reason of any Transaction Document, to be regarded as a trustee for the benefit of any Subscriber, any Transaction Party or any other person, except that it will account to the Subscribers for any moneys coming into the hands of the Agent on account of the Subscribers or any of them. (b) Neither the Agent nor any Related Corporation of the Agent nor any of their respective directors, officers, employees, agents, Subsidiaries or successors is responsible to the Subscribers or any Transaction Party for: (1) any recitals, statements, representations or warranties contained in any Transaction Document, or in any certificate or other document referred to or provided for in, or received by any of them under, any Transaction Document; (2) the value, validity, effectiveness, genuineness, enforceability or sufficiency of any Transaction Document (other than as against the Agent) or any other certificate or document referred to or provided for in, or received by any of them under any Transaction Document; (3) any failure by any Transaction Party or any Subscriber to perform its obligations under any Transaction Document; or (4) any action taken or omitted to be taken by it or them under any Transaction Document or in connection with any Transaction Document except in the case of its or their own fraud or wilful misconduct or negligence. (c) The Agent is not bound by any waiver, amendment, supplement or modification of any Transaction Document unless it gives its prior written consent as Agent under the Transaction Documents. 18.6 DELEGATION The Agent may employ agents and attorneys. 18.7 AGENT ENTITLED TO RELY The Agent is entitled to rely upon any certificate, communication, notice or other document (including any facsimile transmission or telegram) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of solicitors, independent accountants and other experts selected by the Agent with reasonable care. 18.8 AGENT NOT REGARDED AS HAVING NOTICE OF EVENT OF DEFAULT (a) The Agent is not to be regarded as having knowledge of the occurrence of an Event of Default or Potential Event of Default unless the Agent: (1) is actually aware that any payment due by a Transaction Party under the Transaction Documents has not been made; or (2) has received notice from a Subscriber or a Transaction Party stating that an Event of Default or Potential Event of Default has occurred describing the same and stating that the notice is a "DEFAULT NOTICE". - -------------------------------------------------------------------------------- page 75 84 NTL Subscription Agreement (b) If the Agent receives such a Default Notice or otherwise becomes actually aware that an Event of Default or Potential Event of Default has occurred the Agent must, subject to clause 18.14, promptly notify the Subscribers. (c) If the Agent receives a Default Notice the Agent may deem any such Event of Default or Potential Event of Default to be continuing until it has received a further Default Notice from the party giving the original notice stating that the Event of Default or Potential Event of Default is no longer continuing and the Agent is entitled to rely on such second notice for all purposes under the Transaction Documents. 18.9 RIGHTS OF THE AGENT AS A SUBSCRIBER (a) With respect to its Commitment and to its Pro Rata Share of the Principal Outstanding and any other accommodation provided by it, the Agent, in its capacity as a Subscriber, has the same obligations and Powers under each Transaction Document as any other Subscriber and may exercise and is responsible for the same as though it were not acting as the Agent. (b) The Agent may (without having to account to any Subscriber) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any Transaction Party as if it were not acting as the Agent and may accept fees or other consideration from any of them or for services in connection with the Transaction Documents or otherwise without having to notify or account to the Subscribers. 18.10 INDEMNITY BY THE SUBSCRIBERS (a) Subject to clause 18.10(c), the Subscribers must severally reimburse the Agent (to the extent not reimbursed by any Transaction Party under any Transaction Document but without limiting the obligations of any Transaction Party) proportionately in accordance with their respective Pro Rata Shares for all costs, charges and expenses incurred by the Agent in connection with the enforcement of or in contemplation of, or otherwise in connection with, the enforcement of, or the preservation of any Powers under, or in exercising any Powers under, any Transaction Document. (b) Subject to clause 18.10(c), the Subscribers must severally indemnify the Agent (to the extent not reimbursed by any Transaction Party under any Transaction Document but without limiting the obligations of any Transaction Party) proportionately in accordance with their respective Pro Rata Shares against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (other than overheads) which the Agent pays, suffers, incurs or is liable for in respect of its acting as Agent under or in connection with Transaction Documents, the enforcement of or in contemplation of, or otherwise in connection with, the enforcement of, or the preservation of the Powers under, or in exercising any Powers under any Transaction Document. (c) No Subscriber is liable under this clause 18.10 to the extent the liability arises from the Agent's fraud or wilful misconduct or negligence. - -------------------------------------------------------------------------------- page 76 85 NTL Subscription Agreement 18.11 AGENT TO FORWARD COPIES (a) The Agent must forward to each Subscriber a copy of each report, notice or other document promptly after the Agent receives it from a Transaction Party under any Transaction Document. (b) The Agent is not obliged to review or check the accuracy or completeness of any report, notice or other document it forwards to any Subscriber or other person. 18.12 INDEPENDENT CREDIT DECISION BY THE SUBSCRIBERS (a) Each Subscriber acknowledges that it has, independently and without reliance on the Agent, the Security Trustee or any other Subscriber, and based on such documents and information as it has deemed appropriate, made its own investigation into the affairs and financial condition of each Transaction Party. (b) Each Subscriber must independently and without reliance upon the Agent, the Security Trustee or any other Subscriber, and based on such documents and information as it deems appropriate at the time, continue to make its own analyses and decisions in taking or not taking action under any Transaction Document. 18.13 NO MONITORING The Agent is not required to: (a) keep itself informed as to the performance or observance by any Transaction Party of any Transaction Document; or (b) to inspect the properties or books of any Transaction Party. 18.14 INFORMATION (a) Except for notices, reports and other documents and information expressly required to be furnished to the Subscribers by the Agent under any Transaction Document, the Agent has no duty or responsibility, but is authorised, to provide any Subscriber with any credit or other information concerning the affairs, financial condition or business of any Transaction Party (or any of its respective Subsidiaries or associated companies) which may come into the possession of the Agent. (b) Nothing in any Transaction Document obliges the Agent to disclose any information relating to any Transaction Party if such disclosure would or might in the opinion of the Agent constitute a breach of any law or duty of secrecy or confidence. 18.15 AGENT NOT RESPONSIBLE FOR OBLIGATIONS OF OTHER PARTIES The Agent has no responsibility to any party on account of the failure of any other party (other than the Agent) to perform its obligations under or in connection with any Transaction Document. - -------------------------------------------------------------------------------- page 77 86 NTL Subscription Agreement 18.16 RESIGNATION AND REMOVAL OF THE AGENT (a) Subject to the appointment and acceptance of a successor Agent as provided in this clause 18.16, the Agent may resign at any time by giving not less than 30 days' notice to the Subscribers and the Majority Subscribers may (with the prior written consent of the Borrower, such consent not to be unreasonably withheld or delayed), by giving not less than 30 days' notice to the Borrower and the Agent, remove the Agent from office. (b) Upon such notice of resignation or removal being given, the Majority Subscribers may appoint a successor Agent. (c) If no successor Agent either is appointed by the Majority Subscribers or accepts such appointment within 30 days after the retiring Agent gives notice of resignation or the Majority Subscribers give notice of the Agent's removal, then the retiring Agent may, on behalf of the Subscribers, appoint a successor Agent. (d) Upon the acceptance of any appointment as Agent, and execution of an undertaking to be bound as Agent under the Transaction Documents, by a successor Agent, the successor Agent succeeds to and becomes vested with all the Powers and duties of the retiring Agent, and the retiring Agent is discharged from its duties and obligations under the Transaction Documents. (e) After any retiring Agent's resignation or removal, the provisions of this agreement continue in effect in respect of any actions taken or omitted to be taken by it while it was acting as the Agent. 18.17 AMENDMENT OF TRANSACTION DOCUMENTS Each of the Subscribers authorises the Agent to agree with the other parties to any Transaction Document to any amendment to the Transaction Documents which will not increase the obligations of the Subscribers, change the terms of payment of the Principal Outstanding or any interest, Margin, fees or other amounts payable under any Transaction Document or amend this clause 18.17 and: (a) the Agent is satisfied that the amendment is made to correct a manifest error or an error of a minor nature or that the amendment is of a formal or technical nature only; or (b) the Majority Subscribers have, upon request by the Agent to the Subscribers, notified the Agent of their agreement to the amendment, and each Subscriber is bound by any such amendment so agreed to by the Agent as if it were party to the relevant amendment agreement. The Agent must notify all Subscribers of any such amendment. 18.18 INSTITUTION AND JOINING OF ACTIONS (a) If a Subscriber institutes any legal proceedings against a Transaction Party to recover sums owing to it under the Transaction Documents, it must promptly give notice to the Agent and each other Subscriber. (b) If a Subscriber does not accept an invitation to join in any action against a Transaction Party or does not share in the costs of any such action (in each - -------------------------------------------------------------------------------- page 78 87 NTL Subscription Agreement case having been given a reasonable opportunity to do so), its failure to do must be taken into account when determining any rateable sharing under this agreement and it is not entitled to share in any amount so recovered until all other Subscribers have received in full all moneys payable to them under the Transaction Documents. 18.19 IDENTITY OF SUBSCRIBERS (a) A Subscriber must notify the Agent of any assignment or novation of that Subscribers' rights, benefits or obligations under any Transaction Document. (b) The Agent may treat each Subscriber (or any assignee or Substitute Subscriber of which the Agent has actual notice) as the holder of the benefit of that Subscriber's participation under the Transaction Documents for all purposes, unless and until it receives notice under clause 18.19(a) to the contrary or it is a party to a substitution under clause 19 in respect of that Subscriber. - ------------------------------------------------------------------------------- 19 ASSIGNMENT AND SUBSTITUTION 19.1 ASSIGNMENT BY TRANSACTION PARTY A Transaction Party must not transfer or assign any of its rights or obligations under any Transaction Document except as otherwise permitted under any Transaction Document without the prior written consent of the Agent (acting on the instructions of all Subscribers). 19.2 ASSIGNMENT OR SUBSTITUTION BY SUBSCRIBERS Any Subscriber may at any time assign any of its rights or transfer by novation any of its rights and obligations under any Transaction Document to, any bank or financial institution or to any combination of banks and financial institutions if: (a) the Subscriber consults the Borrower in relation to the assignment or transfer (as the case may be); (b) the Subscriber pays an assignment fee of $2,500 to the Agent; (c) where the Subscriber is transferring by novation its rights and obligations under any Transaction Document the novation is effected in accordance with clause 19.3; (d) if the dealing is with part of the Commitment of that Subscriber it must be in a minimum amount of $10,000,000 and an integral multiple of $10,000,000 and so that its remaining Commitment is at least $20,000,000; (e) where the Subscriber is transferring part of its Commitment under a Facility (the FIRST FACILITY), the Subscriber transfers a proportion of its Commitment under the other Facility equivalent to the proportion of its Commitment which is being transferred under the First Facility to its total Commitment under the First Facility at that time; and (f) it transfers to the Substitute Subscriber all or the relevant part of its interest in the Debenture which corresponds with the amount of its Commitment - -------------------------------------------------------------------------------- page 79 88 NTL Subscription Agreement which is transferred, such transfer of all or the relevant part of its interest in the Debenture to be effected in accordance with the Debenture Trust Deed and on the terms and conditions set out in the Master Debenture, or in such other manner as the Security Trustee approves. 19.3 SUBSTITUTION CERTIFICATE (a) Subject to clause 19.2, if a Subscriber wishes to substitute a Substitute Subscriber it must notify the Agent not less than 5 Business Days before the substitution, of the following: (1) the name of the Substitute Subscriber; (2) the proportion of its Commitment to be assumed by the Substitute Subscriber, and the breakdown between the Tranche A Commitment and the Tranche B Commitment to be assumed; and (3) the proposed date of the substitution. (b) The Retiring Subscriber and the Substitute Subscriber must: (1) execute a substitution certificate in the form of annexure B in the Australian Capital Territory or in such other place as the Agent approves; and (2) deliver 4 counterparts to the Agent or otherwise effect a substitution in a form acceptable to the Agent. (c) The Agent is irrevocably authorised by all other parties to this agreement other than the Retiring Subscriber to execute on their behalf in the Australian Capital Territory or in such other place as the Agent approves a substitution certificate delivered to the Agent under clause 19.3(b). (d) When the Agent receives a substitution certificate under clause 19.3(b) it must: (1) execute all the counterparts on behalf of all the parties to this agreement other than the Retiring Subscriber; (2) notify the other Subscribers of the substitution; (3) retain one counterpart; (4) deliver one of the other counterparts to each of the Borrower, the Retiring Subscriber and the Substitute Subscriber. (e) When the Agent executes a substitution certificate the substituted rights and obligations no longer apply to the Retiring Subscriber and the Substitute Subscriber is bound by the Transaction Documents detailed in the substitution certificate. (f) While a Funding Notice is current a substitution may not be made without the consent of the Agent. 19.4 REFERENCES TO A SUBSCRIBER (a) If a Subscriber transfers its rights, benefits or obligations under the Transaction Documents in accordance with clauses 19.2 and 19.3 any reference in the Transaction Documents to that Subscriber (unless provided - -------------------------------------------------------------------------------- page 80 89 NTL Subscription Agreement otherwise) is a reference to that Subscriber and its transferee or Substitute Subscriber. (b) If a participant transfers all of its rights, benefits and obligations by novation then any reference to that Subscriber is a reference to its transferee or Substitute Subscriber alone. 19.5 REDUCTION OF COMMITMENTS If a transfer by novation is made by a Subscriber in accordance with clauses 19.2 and 19.3: (a) the Tranche A Commitment and the face value amount of the Debenture held by the transferor Subscriber in relation to the Tranche A Facility, and Tranche B Commitment and the face value amount of the Debenture held by the transferor Subscriber in relation to the Tranche B Facility (as the case may be) is reduced by the amount of the Tranche A Commitment and Tranche B Commitment (as the case may be) assumed by the transferee or Substitute Subscriber; (b) the Tranche A Commitment and the Tranche B Commitment (as the case may be) of the transferee or Substitute Subscriber is the amount it assumes; (c) a new schedule 2 must be prepared by the Agent and distributed to each of the Borrower and the Subscribers setting out the names, addresses and Commitments of the Subscribers in effect from the date of the transfer; and (d) the Security Trustee must amend the Register to reflect each transfer and the Debentures held by the transferor Subscriber and the transferee Subscriber after giving effect to the transfer and including the changes to the face value amounts and Paid Up Amounts of those Debentures, all in accordance with the Debenture Trust Deed. 19.6 ASSIST TRANSFER OR ASSIGNMENT At the request of the Agent or a Subscriber, each Transaction Party must do any thing including, but not limited to, executing any documents or amending any Transaction Document, to effect any transfer or assignment under this clause 19. 19.7 PARTICIPATION PERMITTED A Subscriber may grant by way of sub-participation (being a right to share in the financial effects of this agreement, without any rights a Transaction Party) all or part of the Subscriber's rights and benefits under this agreement to any other person without having to obtain the consent of or to notify any Transaction Party. 19.8 SECURITISATION PERMITTED (a) Subject to clause 19.8(b), a Subscriber may, without having to obtain the consent of or notify any Transaction Party, assign, transfer, sub-participate or otherwise deal with all or any part of its rights and benefits under this agreement to a trustee of a trust, company or other entity which in each case is established for the purposes of securitisation. - -------------------------------------------------------------------------------- page 81 90 NTL Subscription Agreement (b) Notwithstanding any assignment, transfer, sub-participation or other dealing by that Subscriber under clause 19.8(a): (1) that Subscriber remains bound by, and must continue to perform all its obligations under, this agreement and the Transaction Documents; (2) that Subscriber is the only person entitled to exercise any Power, and no assignee, transferee, sub-participant or other person who obtains an interest in any of the rights or benefits of that Subscriber under this agreement or the Transaction Documents pursuant to clause 19.8(a) of this agreement; and (3) any amount payable by the Borrower to that Subscriber under this agreement will, if paid by the Borrower to that Subscriber, operate as an effective discharge of the Borrower's obligation to make that payment. 19.9 LENDING OFFICE (a) A Subscriber may change its Lending Office at any time. (b) A Subscriber must promptly notify the Agent and the Borrower of any such change. 19.10 NO INCREASE IN COSTS If a Subscriber assigns or transfers any of its rights or obligations under any Transaction Document or changes its Lending Office each Transaction Party is not required to pay any net increase in the aggregate amount of costs, Taxes, fees or charges which: (a) are a direct consequence of the transfer or assignment or change of Lending Office; and (b) the Subscriber or its transferee or assignee was aware of or ought reasonably to have been aware of, at the time of the transfer or assignment or change of Lending Office. - ------------------------------------------------------------------------------- 20 SALE AND DISTRIBUTION OF THE DEBENTURES 20.1 ARRANGER AND SUBSCRIBER UNDERTAKINGS (a) The Arranger and each Subscriber: (1) must observe all applicable laws, rules and regulations in any jurisdiction in which it may offer or sell a Debenture. (2) must not offer, sell or deliver any Debenture or distribute any information memorandum prospectus, offering circular, advertisement or other offering material relating to a Debenture in any jurisdiction except under circumstances that will result in compliance with all applicable laws of the relevant jurisdiction; and (3) acknowledges that no information memorandum or other offering material has been, or will be, lodged with, or registered by, the - -------------------------------------------------------------------------------- page 82 91 NTL Subscription Agreement Australian Securities and Investments Commission or any other Governmental Agency, and no action has been taken or will be taken in any jurisdiction which would permit a public offering of a Debenture, or possession or distribution of any information memorandum or any other offering material in relation to a Debenture, in any jurisdiction where action for that purpose is required. (b) The Arranger and each Subscriber must not: (1) offer a Debenture for issue, or invite applications for the issue of a Debenture; (2) offer a Debenture for sale, or invite offers to purchase a Debenture, to a person that: (3) receives the offer or invitation in Australia unless the offer or invitation: (A) is an offer or invitation which does not need disclosure to investors under Chapter 6D of the Corporations Law pursuant to section 708 of the Corporations Law; and (B) is made in compliance with the Corporations Law, the Corporations Regulations and all other applicable laws and regulations; or (4) the Arranger or the Subscriber (as the case may be): (A) knows or has reasonable grounds to suspect is an Associate of the Borrower (other than in the capacity of a dealer, underwriter or manager in relation to the placement of the Debenture); or (B) has been notified by the Borrower as being a person that the Borrower knows or has reasonable grounds to suspect is an Associate of the Borrower (other than in the capacity of a dealer, underwriter or manager in relation to the placement of the Debenture). (c) The Arranger and each Subscriber represents and warrants that it has not done any of the things described in clause 20.1(b). (d) In this clause 20.1, references to a Debenture include a legal or equitable right or interest in, or an option to acquire, a Debenture. 20.2 PUBLIC OFFER PROVISIONS (a) The Arranger must: (1) offer the Initial Debentures for issue to at least 10 persons each of whom: (A) is carrying on a business of providing finance, or investing or dealing in securities in the course of operating in financial markets; and - -------------------------------------------------------------------------------- page 83 92 NTL Subscription Agreement (B) is not known or suspected by the Arranger (or by the Borrower and notified to the Arranger) to be an Associate of any of the other persons covered by clause 20.2(a)(1)(A); or (2) within 30 days of the issue of the Initial Debentures to the Arranger in their capacity as a dealer, manager or an underwriter in relation to the placement of the Initial Debentures, offer the Initial Debentures for sale in a way covered by clause 20.2(a)(1). (b) The Arranger and each Subscriber will, at the cost of the Borrower, provide to the Borrower, within 14 Business Days of receipt of a request from the Borrower, such information of which it is aware (unless that information is confidential) in relation to any Debenture as is reasonably required for the purposes of assisting the Borrower to demonstrate that the public offer test under section 128F of the Tax Act has been satisfied in relation to the issue of the Debentures. (c) The Arranger and each Subscriber will, at the cost of the Borrower, co-operate with, and use reasonable endeavours to assist, the Borrower with a view to ensuring that the Debentures are offered for sale in such a manner which will allow payments of interest or amounts in the nature of interest on the Debentures to be exempt from Australian withholding tax under section 128F the Tax Act. (d) Each Subscriber represents and warrants that at the date of this Agreement: (1) it is and will be acting as Subscriber in the course of carrying on a business of providing finance, or investing or dealing in securities in the course of operating in financial markets; and (2) except as disclosed to the Borrower, it is not, so far as it is aware and does not suspect that it is, an Associate of any other Subscriber. (e) If, at any time, the Borrower determines in good faith that Australian interest withholding tax is or will become payable in respect of any outstanding Debenture held by a Subscriber: (1) that Subscriber must, if requested by the Borrower and at the cost of the Borrower, take all reasonable steps to mitigate that result before the next date for payment of interest under the Debenture in respect of which Australian interest withholding tax is or will become payable; or (2) the Borrower may prepay the Principal Outstanding in respect of that Debenture under and in accordance with clause 3.6. 20.3 DEBENTURE TRUST DEED AND MASTER DEBENTURES (a) Each Subscriber agrees that it is bound by, and subject to, all the provisions of the Debenture Trust Deed and each Master Debenture which relate to or affect the rights or obligations of that Subscriber in its capacity as a Debenture Holder. (b) The Security Trustee covenants to comply with its obligations under the Debenture Trust Deed and each Master Debenture. - -------------------------------------------------------------------------------- page 84 93 NTL Subscription Agreement - ------------------------------------------------------------------------------- 21 SAVING PROVISIONS 21.1 NO MERGER OF SECURITY (a) Nothing in this agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects: (1) any Encumbrance in favour of any Finance Party at any time; (2) any indemnity in favour of any Finance Party contained in any Transaction Document; or (3) any right, power, authority, discretion or remedy which a Finance Party may have against a Transaction Party or any other person at any time. (b) No other Encumbrance or Transaction Document held by a Finance Party in any way prejudicially affects any right, power, authority, discretion or remedy of the Finance Parties under this agreement. 21.2 EXCLUSION OF MORATORIUM To the extent not excluded by law, a provision of any legislation which at any time directly or indirectly: (a) lessens or otherwise varies or affects in favour of a Transaction Party any obligations under this agreement or any Collateral Security; or (b) stays, postpones or otherwise prevents or prejudicially affects the exercise by any Finance Party of any Power, is negatived and excluded from this agreement and any Collateral Security and all relief and protection conferred on that Transaction Party by or under that legislation is also negatived and excluded. 21.3 CONFLICT Where any right, power, authority, discretion or remedy of a Finance Party, a Receiver or an Attorney under any Transaction Document is inconsistent with the powers conferred by applicable law then, to the extent not prohibited by that law, those conferred by applicable law are regarded as negatived or varied to the extent of the inconsistency. 21.4 CONSENTS (a) Whenever the doing of any thing by a Transaction Party is dependent upon the consent or approval of a Finance Party, the Finance Party may withhold its consent or approval or give it conditionally or unconditionally in its absolute discretion unless expressly stated otherwise in a Transaction Document. (b) Any conditions must be complied with by that Transaction Party. - -------------------------------------------------------------------------------- page 85 94 NTL Subscription Agreement 21.5 PRINCIPAL OBLIGATIONS This agreement and each Collateral Security is: (a) a principal obligation and is not ancillary or collateral to any other Encumbrance (other than another Collateral Security) or other obligation however created; and (b) independent of, and unaffected by any other Encumbrance or other obligation however created which any Finance Party may hold at any time in respect of the Secured Moneys. 21.6 NON-AVOIDANCE If any payment by a Transaction Party to a Finance Party is at any time avoided for any reason including, but not limited to, any legal limitation, disability or incapacity of or affecting the Transaction Party or any other thing, and whether or not: (a) any transaction relating to the Secured Moneys was illegal, void or substantially avoided; or (b) any thing was or ought to have been within the knowledge of any Finance Party, that Transaction Party: (c) as an additional, separate and independent obligation, indemnifies each Finance Party against that avoided payment; and (d) acknowledges that any liability of the Transaction Party under the Transaction Documents and any right or remedy of the Finance Parties under the Transaction Documents is the same as if that payment had not been made. 21.7 SET-OFF AUTHORISED If a Transaction Party has not paid any amount (including, but not limited to, principal, interest, fees, costs, expenses or Taxes, whether contingent or otherwise) at any time due and payable by it to any Finance Party in respect of a Transaction Document, that Transaction Party authorises each Finance Party: (a) to apply any credit balance in any currency in any account of that Transaction Party with any branch or office of the Finance Party in and towards satisfaction of that amount; (b) in the name of that Transaction Party or of the Finance Party, to do any act or thing including, but not limited to, any of the following: (1) the execution of any document; and (2) to effect any currency conversion, which may be required to make an application under clause 21.7(a) 21.8 CERTIFICATES OF AGENT A certificate signed by any Officer of the Agent stating: (a) the amount of the Secured Moneys due and payable; or - -------------------------------------------------------------------------------- page 86 95 NTL Subscription Agreement (b) the amount due and payable by a Transaction Party under this agreement; or (c) the amount of the Secured Moneys, whether currently due and payable or not, is as regards each Transaction Party prima facie evidence of that amount at the date stated on the certificate or failing that as at the date of that certificate. 21.9 NO RELIANCE OR OTHER OBLIGATIONS AND RISK ASSUMPTION Each Transaction Party acknowledges and confirms that: (a) it has not entered into any Transaction Document in reliance on any representation, warranty, promise or statement made by any Finance Party or any person on behalf of any Finance Party; (b) in respect of the transactions evidenced by the Transaction Documents, no Finance Party has any obligations other than those expressly set out in the Transaction Documents; and (c) in respect of interest rates or exchange rates, no Finance Party is liable for: (1) any movement in interest rates or exchange rates; or (2) any information, advice or opinion provided by any Finance Party or any person on behalf of any Finance Party, even if: (A) provided at the request of that Transaction Party (it being acknowledged by that Transaction Party that such matters are inherently speculative); (B) relied on by that Transaction Party; or (C) provided incorrectly or negligently. 21.10 POWER OF ATTORNEY In consideration of the Finance Parties agreeing to provide the accommodation referred to in this agreement and the Agent and each of its officers for the time being (each with power to appoint a substitute or substitutes) is irrevocably appointed the attorney of each Transaction Party to exercise any of the following powers at any time after the occurrence of an Event of Default: (a) to execute and deliver all documents; and (b) do all things (including the signing and lodging of proofs of debt and similar claims in the bringing and enforcing of legal proceedings, the compromise of disputes, the enforcement of each Transaction Document or any of them), which such attorney thinks requisite or desirable for giving effect to the provisions of each Transaction Document. 21.11 OPINION OF A FINANCE PARTY Where any Finance Party is required or entitled under this agreement to form or hold an opinion or view, this may be formed or held on its behalf by any person authorised by that Finance Party to act on its behalf in relation to this agreement or by its board of directors or by any of its Officers. - -------------------------------------------------------------------------------- page 87 96 NTL Subscription Agreement - -------------------------------------------------------------------------------- 22 GENERAL 22.1 CONFIDENTIAL INFORMATION (a) A Finance Party must not, disclose to any person any documents or records of, or information about, any Transaction Document, or the assets, business or affairs of any Transaction Party except: (1) to an assignee, novatee or sub-participant in favour of whom it proposes or wishes to assign or novate its rights or obligations under this agreement in accordance with clause 19 after consultation with the Borrower as required under clause 19.1(a) and where the disclosure is made on the basis that the assignee, novatee or sub-participant will comply with this clause 22.1 in the same way that the Finance Party is required to do so; (2) to any professional or other adviser of whatever nature consulted by it in relation to any of its rights or obligations under the Transaction Documents; (3) to the Reserve Bank of Australia, the Australian Tax Office or any Governmental Agency requiring disclosure of the information; (4) in connection with the enforcement of its rights under the Transaction Documents after an Event of Default has occurred and is continuing; (5) where the information is already in the public domain; (6) if required by law; or (7) otherwise with the prior written consent of the relevant Transaction Party. (b) A Finance Party must only use any documents or records of, or information about, any Transaction Document, or the assets, business or affairs of any Transaction Party for the purposes of, on in connection with the exercise of its Powers under, the Transaction Documents. 22.2 PERFORMANCE BY AGENT OF OBLIGATIONS If a Transaction Party defaults in fully and punctually performing any obligation contained or implied in any Transaction Document, the Agent may, without prejudice to any Power, do all things necessary or desirable, in the opinion of the Agent, to make good or attempt to make good that default to the satisfaction of the Agent. 22.3 TRANSACTION PARTY TO BEAR COST Any thing which must be done by a Transaction Party under any Transaction Document, whether or not at the request of any Finance Party, must be done at the cost of the Transaction Party. - -------------------------------------------------------------------------------- page 88 97 NTL Subscription Agreement 22.4 NOTICES (a) Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party to any Transaction Document: (1) must be in legible writing and in English addressed as shown below: (A) if to the Agent: Chase Securities Australia Limited Address: Level 25, Grosvenor Place 225 George Street SYDNEY NSW 2000 Attention: Yvonne Blunt Facsimile: 9251 3371; (B) if to the Arranger: c/o Chase Securities Australia Limited Address: Level 25, Grosvenor Place 225 George Street SYDNEY NSW 2000 Attention: Yvonne Blunt Facsimile: 9251 3371; (C) if to the Borrower: NTL Australia Pty Limited Address: Level 3 655 Pacific Highway ST LEONARDS NSW 2065 Attention: Company Secretary Facsimile: 9437 0510; and: Address: NTL Incorporated 110 East 59th Street 26th Floor New York NY 10022 USA Attention: General Counsel Facsimile: +1 212 906 8497 (D) if to a Guarantor, according to the details set out in schedule 2, (E) if to the Security Trustee: Chase Capital Markets Fiduciary Services Australia Limited Address: Level 35, 259 George Street Sydney NSW 2000 Attention: Institutional Trust Services Facsimile: 9247 4913 Telephone: 9250 4451, - -------------------------------------------------------------------------------- page 89 98 NTL Subscription Agreement with a copy to: To: The Chase Manhattan Bank Attention: Institutional Trust Services Address: 35/F One Exchange Square Central Hong Kong Facsimile: (852) 2841 6067 Telephone: (852) 2901 4176 and (F) if to a Subscriber, to its Lending Office, or as specified to the sender by any party by notice; (2) where the sender is a company, must be signed by an Officer or under the common seal of the sender; (3) is regarded as being given by the sender and received by the addressee: (A) if by delivery in person, when delivered to the addressee; (B) if by post, on delivery to the addressee; or (C) if by facsimile transmission, whether or not legibly received, when received by the addressee, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it is regarded as received at 9.00 am on the following Business Day; and (4) can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender. (b) A facsimile transmission is regarded as legible unless the addressee telephones the sender within 2 hours after the transmission is received or regarded as received under clause 22.4(a)(3) and informs the sender that it is not legible. (c) In this clause 22.4, a reference to an addressee includes a reference to an addressee's Officers, agents or employees or any person reasonably believed by the sender to be an Officer, agent or employee of the addressee. 22.5 GOVERNING LAW AND JURISDICTION (a) This agreement is governed by the laws of New South Wales. (b) Each Transaction Party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales. (c) Each Transaction Party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum. - -------------------------------------------------------------------------------- page 90 99 NTL Subscription Agreement (d) Each Transaction Party irrevocably waives any immunity in respect of its obligations under this agreement that it may acquire from the jurisdiction of any court or any legal process for any reason including, but not limited to, the service of notice, attachment before judgment, attachment in aid of execution or execution. 22.6 PROHIBITION AND ENFORCEABILITY (a) Any provision of, or the application of any provision of, any Transaction Document or any Power which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition. (b) Any provision of, or the application of any provision of, any Transaction Document which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction. 22.7 WAIVERS (a) Waiver of any right arising from a breach of this agreement or of any Power arising upon default under this agreement or upon the occurrence of an Event of Default must be in writing and signed by the party granting the waiver. (b) A failure or delay in exercise, or partial exercise, of: (1) a right arising from a breach of this agreement or the occurrence of an Event of Default; or (2) a Power created or arising upon default under this agreement or upon the occurrence of an Event of Default, does not result in a waiver of that right or Power. (c) A party is not entitled to rely on a delay in the exercise or non-exercise of a right or Power arising from a breach of this agreement or on a default under this agreement or on the occurrence of an Event of Default as constituting a waiver of that right or Power. (d) A party may not rely on any conduct of another party as a defence to exercise of a right or Power by that other party. (e) This clause may not itself be waived except by writing. 22.8 VARIATION A variation of any term of this agreement must be in writing and signed by the parties. 22.9 CUMULATIVE RIGHTS The Powers are cumulative and do not exclude any other right, power, authority, discretion or remedy of any Finance Party, Receiver or Attorney. - -------------------------------------------------------------------------------- page 91 100 NTL Subscription Agreement 22.10 ATTORNEYS Each of the attorneys executing this agreement states that the attorney has no notice of the revocation of the power of attorney appointing that attorney. - -------------------------------------------------------------------------------- page 92 101 NTL Subscription Agreement - -------------------------------------------------------------------------------- SCHEDULE 1 - GUARANTORS CLAUSE 1.1 (DEFINITIONS)
NAME ABN/ACN/ARBN/ ADDRESS AND SERVICE DETAILS - ------------------------------------ --------------- --------------------------- NTL Australia Holdings Pty Limited ACN 086 459 127 Level 3, 655 Pacific Highway ST LEONARDS NSW 2065 Attention: Company Secretary Facsimile: (02) 9437 0510
- -------------------------------------------------------------------------------- page 93 102 NTL Subscription Agreement - -------------------------------------------------------------------------------- SCHEDULE 2 - SUBSCRIBERS CLAUSE 1.1 (DEFINITIONS) PART A - TRANCHE A SUBSCRIBERS
NAME OF SUBSCRIBER ABN/ACN/ARBN LENDING OFFICE AND SERVICE TRANCHE A PLACE OF INCORPORATION DETAILS COMMITMENT BEFORE CONDITIONS SUBSEQUENT SATISFACTION DATE - --------------------------- ------------------------ ---------------------------- ---------------------- The Chase Manhattan Bank ARBN 074 112 011 Att: Steve Brimo/ Craig $8,333,333.34 Tuckwell Level 25 Grosvenor Place 225 George Street Sydney NSW 2000 Tel: 02 9250 4487/ 02 9250 4509 Fax: 02 9250 4529 Email: stephen.brimo@chase.com/ craig.tuckwell@chase.com Barclays Bank PLC Australian Branch ARBN 062 449 585 Att: Tracey Stratford $8,333,333.34 Operations Officer Level 24 400 George Street Sydney NSW 2000 Tel: 02 9220 6013 Fax: 02 9220 6090 Email: tracey.stratford@barcap.com BOS (International) Australia ACN 066 601 250 Att: Frank Calabrese $8,333,333.33 Limited Senior Relationship Manager Level 11 50 Carrington Street Sydney NSW 2000 Tel: 02 9248 2130 Fax: 02 9248 2199 Email: fcalabrese@bos.com.au
- -------------------------------------------------------------------------------- page 94 103 NTL Subscription Agreement Credit Lyonnais Singapore Branch Not applicable Att: Diana TAN / Kelly TAN $8,333,333.33 Manager - Loan Administration 3 Temasek Avenue #11-01 Centennial Tower SINGAPORE 039190 Tel: 65 333 6331/ 65 832 0718 Fax: 65 333 6332 National Australia Bank Limited ABN 12 004 044 937 Att: Glenn Garrett $8,333,333.33 Financial Analyst National Australia Bank Melbourne 3rd Floor South 271 Collins Street Melbourne Victoria 3000 Tel: 03 9659 7685 Fax: 03 9659 6927 Email: glenn_garrett@nag.national.com.au Westdeutsche Landesbank ACN 076 170 039 Att: Joanna Forsyth $8,333,333.33 Girozentrale Sydney Branch Executive, Global Structured Finance Level 29 60 Margaret Street Sydney NSW 2000 Tel: 02 9777 9930 Fax: 02 9777 8028 Email: joanna_forsyth@westlb.com.au
TRANCHE B SUBSCRIBERS
NAME OF SUBSCRIBER ABN/ACN/ARBN LENDING OFFICE AND SERVICE TRANCHE B PLACE OF INCORPORATION DETAILS COMMITMENT BEFORE CONDITIONS SUBSEQUENT SATISFACTION DATE - ---------------------------- ------------------------ ---------------------------- ---------------------- The Chase Manhattan Bank ARBN 074 112 011 Att: Steve Brimo/ Craig $25,000,000.00 Tuckwell Level 25 Grosvenor Place 225 George Street Sydney NSW 2000 Tel: 02 9250 4487/ 02 9250 4509 Fax: 02 9250 4529 Email: stephen.brimo@chase.com/ craig.tuckwell@chase.com
- -------------------------------------------------------------------------------- page 95 104 NTL Subscription Agreement Barclays Bank PLC Australian Branch ARBN 062 449 585 Att: Tracey Stratford $25,000,000.00 Operations Officer Level 24 400 George Street Sydney NSW 2000 Tel: 02 9220 6013 Fax: 02 9220 6090 Email: tracey.stratford@barcap.com BOS (International) Australia ACN 066 601 250 Att: Frank Calabrese $25,000,000.00 Limited Senior Relationship Manager Level 11 50 Carrington Street Sydney NSW 2000 Tel: 02 9248 2130 Fax: 02 9248 2199 Email: fcalabrese@bos.com.au Credit Lyonnais Singapore Branch Not applicable Att: Diana TAN / Kelly TAN $25,000,000.00 Manager - Loan Administration 3 Temasek Avenue #11-01 Centennial Tower SINGAPORE 039190 Tel: 65 333 6331/ 65 832 0718 Fax: 65 333 6332 National Australia Bank Limited ABN 12 004 044 937 Att: Glenn Garrett $25,000,000.00 Financial Analyst National Australia Bank Melbourne 3rd Floor South 271 Collins Street Melbourne Victoria 3000 Tel: 03 9659 7685 Fax: 03 9659 6927 Email: glenn_garrett@nag.national.com.au Westdeutsche Landesbank ACN 076 170 039 Att: Joanna Forsyth $25,000,000.00 Girozentrale Sydney Branch Executive, Global Structured Finance Level 29 60 Margaret Street Sydney NSW 2000 Tel: 02 9777 9930 Fax: 02 9777 8028 Email: joanna_forsyth@westlb.com.au
- -------------------------------------------------------------------------------- page 96 105 NTL Subscription Agreement PART B TRANCHE A SUBSCRIBERS
NAME OF SUBSCRIBER ABN/ACN/ARBN LENDING OFFICE AND SERVICE TRANCHE A COMMITMENT PLACE OF INCORPORATION DETAILS AFTER CONDITIONS SUBSEQUENT SATISFACTION DATE - -------------------------- ------------------------ ---------------------------- ----------------------- The Chase Manhattan Bank ARBN 074 112 011 Att: Steve Brimo/ Craig $25,000,000.00 Tuckwell Level 25 Grosvenor Place 225 George Street Sydney NSW 2000 Tel: 02 9250 4487/ 02 9250 4509 Fax: 02 9250 4529 Email: stephen.brimo@chase.com/ craig.tuckwell@chase.com Barclays Bank PLC Australian Branch ARBN 062 449 585 Att: Tracey Stratford $25,000,000.00 Operations Officer Level 24 400 George Street Sydney NSW 2000 Tel: 02 9220 6013 Fax: 02 9220 6090 Email: tracey.stratford@barcap.com BOS (International) Australia ACN 066 601 250 Att: Frank Calabrese $25,000,000.00 Limited Senior Relationship Manager Level 11 50 Carrington Street Sydney NSW 2000 Tel: 02 9248 2130 Fax: 02 9248 2199 Email: fcalabrese@bos.com.au Credit Lyonnais Singapore Branch Not applicable Att: Diana TAN / Kelly TAN $25,000,000.00 Manager - Loan Administration 3 Temasek Avenue #11-01 Centennial Tower SINGAPORE 039190 Tel: 65 333 6331/ 65 832 0718 Fax: 65 333 6332
- -------------------------------------------------------------------------------- page 97 106 NTL Subscription Agreement National Australia Bank Limited ABN 12 004 044 937 Att: Glenn Garrett $25,000,000.00 Financial Analyst National Australia Bank Melbourne 3rd Floor South 271 Collins Street Melbourne Victoria 3000 Tel: 03 9659 7685 Fax: 03 9659 6927 Email: glenn_garrett@nag.national.com.au Westdeutsche Landesbank ACN 076 170 039 Att: Joanna Forsyth $25,000,000.00 Girozentrale Sydney Branch Executive, Global Structured Finance Level 29 60 Margaret Street Sydney NSW 2000 Tel: 02 9777 9930 Fax: 02 9777 8028 Email: joanna_forsyth@westlb.com.aumailto:
TRANCHE B SUBSCRIBERS
NAME OF SUBSCRIBER ABN/ACN/ARBN LENDING OFFICE AND SERVICE TRANCHE B PLACE OF INCORPORATION DETAILS COMMITMENT AFTER CONDITIONS SUBSEQUENT SATISFACTION DATE - -------------------------- ------------------------ ---------------------------- ---------------------- The Chase Manhattan Bank ARBN 074 112 011 Att: Steve Brimo/ Craig $33,333,333.34 Tuckwell Level 25 Grosvenor Place 225 George Street Sydney NSW 2000 Tel: 02 9250 4487/ 02 9250 4509 Fax: 02 9250 4529 Email: stephen.brimo@chase.com/ craig.tuckwell@chase.com Barclays Bank PLC Australian Branch ARBN 062 449 585 Att: Tracey Stratford $33,333,333.34 Operations Officer Level 24 400 George Street Sydney NSW 2000 Tel: 02 9220 6013 Fax: 02 9220 6090 Email: tracey.stratford@barcap.com
- -------------------------------------------------------------------------------- page 98 107 NTL Subscription Agreement BOS (International) Australia ACN 066 601 250 Att: Frank Calabrese $33,333,333.33 Limited Senior Relationship Manager Level 11 50 Carrington Street Sydney NSW 2000 Tel: 02 9248 2130 Fax: 02 9248 2199 Email: fcalabrese@bos.com.au Credit Lyonnais Singapore Branch Not applicable Att: Diana TAN / Kelly TAN $33,333,333.33 Manager - Loan Administration 3 Temasek Avenue #11-01 Centennial Tower SINGAPORE 039190 Tel: 65 333 6331/ 65 832 0718 Fax: 65 333 6332 National Australia Bank Limited ABN 12 004 044 937 Att: Glenn Garrett $33,333,333.33 Financial Analyst National Australia Bank Melbourne 3rd Floor South 271 Collins Street Melbourne Victoria 3000 Tel: 03 9659 7685 Fax: 03 9659 6927 Email: glenn_garrett@nag.national.com.au Westdeutsche Landesbank ACN 076 170 039 Att: Joanna Forsyth $33,333,333.33 Girozentrale Sydney Branch Executive, Global Structured Finance Level 29 60 Margaret Street Sydney NSW 2000 Tel: 02 9777 9930 Fax: 02 9777 8028 Email: joanna_forsyth@westlb.com.au
- -------------------------------------------------------------------------------- page 99 108 NTL Subscription Agreement - -------------------------------------------------------------------------------- SCHEDULE 3 - PRE-FUNDING CERTIFICATE CLAUSES 2.1(a) AND 14.18(a) TO: [INSERT NAME OF AGENT] (AGENT) I [INSERT NAME] am a DIRECTOR/SECRETARY of each of [INSERT NAMES OF TRANSACTION PARTIES] (each a TRANSACTION Party). I refer to the subscription agreement (SUBSCRIPTION AGREEMENT) dated on or about [INSERT DATE] between NTL Australia Pty Limited (as BORROWER), each party listed in schedule 1 of that agreement (as GUARANTORS), and each party listed in schedule 2 of that agreement (as SUBSCRIBERS), the Agent, Chase Capital Markets Fiduciary Services Australia Limited (as SECURITY TRUSTEE) and Chase Securities Australia Limited (as ARRANGER) (SUBSCRIPTION AGREEMENT). A term defined in the Subscription Agreement has the same meaning when used in this Certificate. I certify as follows: - ------------------------------------------------------------------------------- 1 RELEVANT DOCUMENTS Attached to this Certificate are true, complete and up-to-date copies of each of the following: (a) CONSTITUTION: the constitution of each Transaction Party; (b) POWER OF ATTORNEY: a duly executed power of attorney granted by each Transaction Party authorising execution of the Transaction Documents to which it is a party; (c) MINUTES: extracts of minutes of a meeting of the directors of each relevant Transaction Party approving execution of the Transaction Documents to which it is a party and the granting of the power of attorney referred to in paragraph (b); (d) AUTHORISATIONS: those Authorisations (if any) necessary or desirable to be obtained by each Transaction Party in connection with the execution, delivery, performance, validity or enforceability of the Transaction Documents to which it is a party. - ------------------------------------------------------------------------------- 2 NO REVOCATION Each: (a) power of attorney referred to in clause 1(b); (b) resolution contained in the minutes referred to in clause 1(c); and (c) Authorisation referred to in clause 1(d), is in full force and effect and has not been amended, modified or revoked. - -------------------------------------------------------------------------------- page 100 109 NTL Subscription Agreement - -------------------------------------------------------------------------------- 3 OFFICERS The following signatures are the true signatures of the authorised officers who are authorised signatories of each Transaction Party:
NAME POSITION SIGNATURE ---------------------- ----------------------------- --------- (a) [INSERT NAME] [INSERT DETAILS OF POSITION] --------------------- (a) [INSERT NAME] [INSERT DETAILS OF POSITION] --------------------- (a) [INSERT NAME] [INSERT DETAILS OF POSITION] ---------------------
SIGNED: ___________________________________________ Officer DATED: - -------------------------------------------------------------------------------- page 101 110 NTL Subscription Agreement - -------------------------------------------------------------------------------- SCHEDULE 4 - DIRECTOR'S CERTIFICATE CLAUSES 2.1(f) (RELATED PARTY TRANSACTIONS AND SOLVENCY) TO: [INSERT NAME OF AGENT] (AGENT) I [INSERT NAME] am a DIRECTOR/SECRETARY of each of [INSERT NAMES OF TRANSACTION PARTIES] (each a TRANSACTION Party). I refer to the subscription agreement (SUBSCRIPTION AGREEMENT) dated on or about [INSERT DATE] between NTL Australia Pty Limited (as BORROWER), each party listed in schedule 1 of that agreement (as GUARANTORS), and each party listed in schedule 2 of that agreement (as SUBSCRIBERS), the Agent, Chase Capital Markets Fiduciary Services Australia Limited (as SECURITY TRUSTEE) and Chase Securities Australia Limited (as ARRANGER) (SUBSCRIPTION AGREEMENT). A term defined in the Subscription Agreement has the same meaning when used in this Certificate. I certify as follows: 1 I am authorised to give this certificate by each Transaction Party. 2 Each Transaction Party, before entering into any Transaction Document to which it is a party, has, in connection with the execution, delivery and performance of each such Transaction Document, fully complied with chapter 2E of the Corporations Law. 3 As at the date of execution of each Transaction Document each Transaction Party is solvent (as defined in Section 95A(1) of the Corporations Law) and will not become insolvent (as defined in Section 95A(2) of the Corporations Law) by entering into and performing its obligations under each Transaction Document to which is a party. Dated this day of - ------------------------------------------------ Signature of Director - ------------------------------------------------ Name of Director (please print) - -------------------------------------------------------------------------------- page 102 111 NTL Subscription Agreement - -------------------------------------------------------------------------------- SCHEDULE 5 - FUNDING NOTICE CLAUSE 4.2 (FUNDING NOTICE) [LETTERHEAD OF NTL AUSTRALIA PTY LIMITED] TO: CHASE SECURITIES AUSTRALIA LIMITED (AGENT) ATTENTION: [INSERT RELEVANT NAME] We refer to the subscription agreement dated on or about [INSERT DATE] between NTL Australia Pty Limited (as BORROWER), each party listed in schedule 1 of that agreement (as GUARANTORS), and each party listed in schedule 2 of that agreement (as SUBSCRIBERS), the Agent, Chase Capital Markets Fiduciary Services Australia Limited (as SECURITY TRUSTEE) and Chase Securities Australia Limited (as ARRANGER) (SUBSCRIPTION AGREEMENT). Under clause 4 of the Subscription Agreement: (a) we give you notice that we wish to draw on [INSERT DATE] (FUNDING DATE); (b) the aggregate amount to be drawn is $[INSERT AMOUNT]; (c) particulars of each Funding Portion are:
PRINCIPAL AMOUNT FUNDING PERIOD FACILITY (TRANCHE A OR TRANCHE B) ------------------ -------------- ---------------------------------
(d) The proceeds of each Funding Portion are to be used for [INSERT PROPOSED USAGE]. (e) We request that the proceeds be remitted to account number [INSERT NUMBER] [in the Australian Capital Territory]; (f) We represent and warrant that: (1) [(EXCEPT AS DISCLOSED IN PARAGRAPH (f)(3)) ]each representation and warranty in the Subscription Agreement is true, correct and not misleading as though it had been made at the date of this Funding Notice and the Funding Date specified above in respect of the facts and circumstances then subsisting; (2) [(EXCEPT AS DISCLOSED IN PARAGRAPH (f)(3)) ]no Event of Default or Potential Event of Default is subsisting or will result from the provision of any Funding Portion[; AND (3) [details of the exceptions to paragraphs (f)(1) and (f)(2) are as follows: [insert], and we [have taken/propose] the following remedial action [insert action]]; - -------------------------------------------------------------------------------- page 103 112 NTL Subscription Agreement - -------------------------------------------------------------------------------- Expressions defined in the Subscription Agreement have the same meaning when used in this Funding Notice. Dated: [INSERT DATE]. SIGNED for and on behalf of NTL AUSTRALIA PTY LIMITED: - ---------------------------------- ------------------------------------- Officer Attorney - ---------------------------------- ------------------------------------- Name (please print) Name (please print) - -------------------------------------------------------------------------------- page 104 113 NTL Subscription Agreement - -------------------------------------------------------------------------------- SCHEDULE 6 - COMPLIANCE CERTIFICATE Clause 11.1(2)(d) To: Chase Securities Australia Limited Level 25, Grosvenor Place 225 George Street Sydney NSW 2000 (as AGENT) From: NTL Australia Pty Limited 655 Pacific Highway St Leonards NSW 2065 COMPLIANCE CERTIFICATE AS AT [DATE] We refer to the subscription agreement dated on or about [INSERT DATE] between NTL Australia Pty Limited (as BORROWER), each party listed in schedule 1 of that agreement (as GUARANTORS), and each party listed in schedule 2 of that agreement (as SUBSCRIBERS), the Agent, Chase Capital Markets Fiduciary Services Australia Limited (as SECURITY TRUSTEE) and Chase Securities Australia Limited (as ARRANGER) (SUBSCRIPTION AGREEMENT). A term defined in the Subscription Agreement has the same meaning when used in this Compliance Certificate. We certify on behalf of the Borrower as follows: In relation to clause [**] of the Subscription Agreement, we confirm as follows in relation to the period ending [ ]: FINANCIAL UNDERTAKINGS (a) GEARING RATIO: The Gearing Ratio as at [INSERT DATE] was [ ]. (b) INTEREST COVER RATIO: The Interest Cover Ratio at as [INSERT DATE] was [ ]. (c) LEVERAGE RATIO: The Leverage Ratio as at [INSERT DATE] was [ ]. We represent and warrant that each representation and warranty in the Subscription Agreement is true, correct and not misleading as though it had been made on the date of this certificate in respect of the facts and circumstances existing on that date. Date: - ---------------------------------- -------------------------------- Director CFO - ---------------------------------- -------------------------------- Name: Name: - -------------------------------------------------------------------------------- page 105 114 NTL Subscription Agreement - -------------------------------------------------------------------------------- SCHEDULE 7 - GROUP STRUCTURE DIAGRAM [GROUP STRUCTURE DIAGRAM] - -------------------------------------------------------------------------------- page 106 115 NTL Subscription Agreement - -------------------------------------------------------------------------------- EXECUTED AS AN AGREEMENT: BORROWER: SIGNED for NTL AUSTRALIA PTY LIMITED by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) GUARANTOR: SIGNED for NTL AUSTRALIA HOLDINGS PTY LTD by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) SUBSCRIBERS: SIGNED for THE CHASE MANHATTAN BANK by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) - -------------------------------------------------------------------------------- page 107 116 NTL Subscription Agreement - -------------------------------------------------------------------------------- SIGNED for BARCLAYS BANK PLC AUSTRALIAN BRANCH by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) SIGNED for BOS (INTERNATIONAL) AUSTRALIA LIMITED by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) SIGNED for CREDIT LYONNAIS SINGAPORE BRANCH by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) SIGNED for NATIONAL AUSTRALIA BANK LIMITED by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) - -------------------------------------------------------------------------------- page 108 117 NTL Subscription Agreement - -------------------------------------------------------------------------------- SIGNED for WESTDEUTSCHE LANDESBANK GIROZENTRALE SYDNEY BRANCH by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) AGENT: SIGNED for CHASE SECURITIES AUSTRALIA LIMITED by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) SECURITY TRUSTEE: SIGNED by CHASE CAPITAL MARKETS FIDUCIARY SERVICES AUSTRALIA LIMITED by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) - -------------------------------------------------------------------------------- page 109 118 NTL Subscription Agreement - -------------------------------------------------------------------------------- ARRANGER: SIGNED for CHASE SECURITIES AUSTRALIA LIMITED by its attorney in the presence of: - ----------------------------------- --------------------------------------- Witness Attorney - ----------------------------------- --------------------------------------- Name (please print) Name (please print) - -------------------------------------------------------------------------------- page 110 119 NTL Subscription Agreement - -------------------------------------------------------------------------------- ANNEXURE A - GUARANTEE ASSUMPTION AGREEMENT CLAUSES 1.1 (DEFINITIONS) AND 14.17 (ADDITIONAL GUARANTORS) THIS DEED POLL is made on [INSERT DATE] by: [INSERT NAME OF GUARANTOR] [INSERT ABN/ACN/ARBN] of [INSERT ADDRESS OF GUARANTOR] (GUARANTOR) RECITALS A. Under a Subscription agreement (SUBSCRIPTION AGREEMENT) dated [ ] 2001 between NTL Australia Pty Limited (as BORROWER), each party listed in schedule 1 of that agreement (as GUARANTORS), and each party listed in schedule 2 of that agreement (as SUBSCRIBERS), the Agent, Chase Capital Markets Fiduciary Services Australia Limited (as SECURITY TRUSTEE) and Chase Securities Australia Limited (as ARRANGER); B. The Additional Guarantors did on [INSERT DATE(S)] respectively execute a Guarantee Assumption Agreement; C. The Guarantor wishes to guarantee to the Finance Parties the Secured Moneys. THIS DEED WITNESSES AS FOLLOWS - -------------------------------------------------------------------------------- 1 INTERPRETATION (a) In this deed poll words and phrases defined in the Subscription Agreement have the same meaning. (b) In this deed poll: ADDITIONAL GUARANTOR means any one of: [INSERT NAMES] EXISTING GUARANTOR means an Initial Guarantor or an Additional Guarantor; INITIAL GUARANTOR means each Guarantor which is a signatory to the Subscription Agreement. - -------------------------------------------------------------------------------- 2 GUARANTEE In consideration of, among other things: (a) forbearance by the Finance Parties to require repayment of the Secured Moneys in full; and (b) the payment by the Finance Parties to the Guarantor of $10.00 (receipt of which is acknowledged), - -------------------------------------------------------------------------------- page 111 120 NTL Subscription Agreement - -------------------------------------------------------------------------------- the Guarantor jointly and severally with each Existing Guarantor irrevocably and unconditionally guarantees to the Finance Parties the payment of the Secured Moneys upon the terms and conditions contained in the Subscription Agreement (including, but not limited to, clause 14 of the Subscription Agreement). - -------------------------------------------------------------------------------- 3 REPRESENTATIONS AND WARRANTIES (a) The Guarantor represents and warrants as set out in clause 10.1 of the Subscription Agreement. (b) Clauses 10.2 and 10.3 of the Subscription Agreement apply to this clause 3 as if set out in full. - -------------------------------------------------------------------------------- 4 STATUS OF GUARANTOR The Guarantor agrees that it irrevocably becomes a "Guarantor" as defined in, and for all purposes under, the Subscription Agreement as if named in and as a party to the Subscription Agreement, and accordingly is bound by the Subscription Agreement as a Guarantor. - -------------------------------------------------------------------------------- 5 GOVERNING LAW This deed poll is governed by the laws of New South Wales. - -------------------------------------------------------------------------------- 6 BENEFIT OF DEED POLL This deed poll is given in favour of and for the benefit of: (a) each Finance Party; (b) NTL Australia Pty Limited as Borrower; and (c) each Existing Guarantor, under the Subscription Agreement and their respective successors and permitted assigns. - -------------------------------------------------------------------------------- 7 ADDRESS FOR NOTICES The details for the Guarantor for service of notices are: ADDRESS: ATTENTION: FACSIMILE: - -------------------------------------------------------------------------------- page 112 121 NTL Subscription Agreement - -------------------------------------------------------------------------------- 8 ATTORNEYS Each of the attorneys executing this deed poll states that the attorney has no notice of the revocation of the power of attorney appointing that attorney. - -------------------------------------------------------------------------------- page 113 122 NTL Subscription Agreement - -------------------------------------------------------------------------------- EXECUTED AS A DEED POLL: SIGNED SEALED AND DELIVERED for [INSERT NAME OF GUARANTOR] by its attorney in the presence of: - ----------------------------------- -------------------------------- Witness Attorney - ----------------------------------- --------------------------------- Name (please print) Name (please print) - -------------------------------------------------------------------------------- page 114 123 NTL Subscription Agreement - -------------------------------------------------------------------------------- ANNEXURE B - SUBSTITUTION CERTIFICATE CLAUSE 19.3 (SUBSTITUTION CERTIFICATE) THIS AGREEMENT is made on [INSERT DATE] between the following parties: 1. [INSERT NAME OF RETIRING PARTICIPANT] [INSERT ABN/ACN/ARBN] [INSERT ADDRESS] (RETIRING SUBSCRIBER) 2. [INSERT NAME OF SUBSTITUTE PARTICIPANT] [INSERT ABN/ACN/ARBN] [INSERT ADDRESS] (SUBSTITUTE SUBSCRIBER) 3. [INSERT NAME OF AGENT] [INSERT ABN/ACN/ARBN] [INSERT ADDRESS] (AGENT) - -------------------------------------------------------------------------------- 1 INTERPRETATION 1.1 INCORPORATED DEFINITIONS A word or phrase (other than one defined in clause 1.2) defined in the Subscription Agreement has the same meaning in this agreement. 1.2 DEFINITIONS In this agreement: SUBSCRIPTION AGREEMENT means the subscription agreement dated [INSERT DATE] between NTL Australia Pty Limited (as borrower), each party listed in schedule 1 of that agreement (as GUARANTORS), and each party listed in schedule 2 of that agreement (as SUBSCRIBERS), the Agent, Chase Capital Markets Fiduciary Services Australia Limited (as SECURITY TRUSTEE) and Chase Securities Australia Limited (as ARRANGER); SUBSTITUTED COMMITMENT means the obligations under the Subscription Agreement of the Retiring Subscriber in respect of [INSERT PERCENTAGE] the [TRANCHE A/TRANCHE B] Commitment of the Retiring Subscriber and all other related obligations; SUBSTITUTION DATE means the date of counter-signature of this agreement by the Agent or [INSERT DATE] whichever is the later. 1.3 INTERPRETATION Clause 1.2 of the Subscription Agreement applies to this agreement as if set out in full in this agreement. - -------------------------------------------------------------------------------- page 115 124 NTL Subscription Agreement - -------------------------------------------------------------------------------- 2 SUBSTITUTION 2.1 EFFECT OF SUBSTITUTION With effect on and from the Substitution Date: (a) no party to the Transaction Documents has any further obligation to the Retiring Subscriber in relation to the Substituted Commitment; (b) the Agent for itself and for each other party to the Subscription Agreement other than the Retiring Subscriber acknowledges that the Retiring Subscriber is released from and has no further obligation in respect of any of them in relation to the Substituted Commitment and any Transaction Document to that extent; (c) the Agent for itself and each other party to the Subscription Agreement other than the Retiring Subscriber grants to the Substitute Subscriber rights which are identical to the rights which the Retiring Subscriber had in respect of the Substituted Commitment and any Transaction Document to that extent; and (d) the Substitute Subscriber assumes obligations towards each of the parties to the Transaction Documents which are identical to the obligations which the Retiring Subscriber was required to perform in respect of the Substituted Commitment before the acknowledgment set out in clause 2.1(b). 2.2 SUBSTITUTE SUBSCRIBER A SUBSCRIBER With effect on and from the Substitution Date: (a) the Substitute Subscriber is taken to be a party to the Transaction Documents with a Commitment equal to the Substituted Commitment and schedule 1 of the Subscription Agreement is amended accordingly; and (b) a reference in the Subscription Agreement to Subscriber includes a reference to the Substitute Subscriber. 2.3 PRESERVATION OF ACCRUED RIGHTS Despite anything contained in this agreement the Agent, the Retiring Subscriber and all other parties to the Subscription Agreement remain entitled to and bound by their respective rights and obligations in respect of the Substituted Commitment and any of their other rights and obligations under the Transaction Documents which have accrued up to the Substitution Date. 2.4 NATURE OF RIGHTS AND OBLIGATIONS In clause 2.1(c) and 2.1(d) a reference to "identical" rights or obligations is a reference to rights or obligations substantially identical in character to those rights or obligations rather than identical as to the person entitled to them or obliged to perform them. - -------------------------------------------------------------------------------- page 116 125 NTL Subscription Agreement - -------------------------------------------------------------------------------- 3 ACKNOWLEDGMENTS 3.1 COPIES OF TRANSACTION DOCUMENTS The Substitute Subscriber acknowledges that it has received a copy of the Transaction Documents together with the other information which it has required in connection with this agreement and the Transaction Documents. 3.2 ACKNOWLEDGMENT TO AGENT Without limiting the generality of clause 2, the Substitute Subscriber acknowledges and agrees as specified in clauses 18.5 and 18.12 of the Subscription Agreement which apply as if references to the Agent included the Retiring Subscriber and references to any Transaction Document included this agreement. - -------------------------------------------------------------------------------- 4 PAYMENTS 4.1 PAYMENTS BY AGENT With effect on and from the Substitution Date the Agent must make all payments due under the Subscription Agreement in connection with the Substituted Commitment to the Substitute Subscriber, without having any further responsibility to the Retiring Subscriber in respect of the same. 4.2 AS BETWEEN SUBSCRIBERS The Retiring Subscriber and the Substitute Subscriber must make directly between themselves the payments and adjustments which they agree with respect to accrued interest, fees, costs and other rights or other amounts attributable to the Substituted Commitment which accrue before the Substitution Date. - -------------------------------------------------------------------------------- 5 OUTSTANDING BILLS The Substitute Subscriber indemnifies the Retiring Subscriber against any liability, loss or damage of the Retiring Subscriber as acceptor, endorser or otherwise of any Reliquefaction Bills. - -------------------------------------------------------------------------------- 6 WARRANTY Each of the Retiring Subscriber and the Substitute Subscriber jointly and severally represent and warrant to the other parties that the requirements of clauses 19.2 and 19.3 of the Subscription Agreement have been complied with in relation to the Substituted Commitment. - -------------------------------------------------------------------------------- page 117 126 NTL Subscription Agreement - -------------------------------------------------------------------------------- 7 NOTICES The details of the Substitute Subscriber for the purpose of schedule 1 of the Subscription Agreement are as follows:
NAME LENDING OFFICE COMMITMENT ---------------------- ------------------------ ---------- Address: Attention: Facsimile:
- -------------------------------------------------------------------------------- 8 GENERAL Clause 22 of the Subscription Agreement applies to this agreement as if it were fully set out in this agreement. - -------------------------------------------------------------------------------- 9 ATTORNEYS Each of the attorneys executing this agreement states that the attorney has no notice of revocation of that attorney's power of attorney. - -------------------------------------------------------------------------------- EXECUTED AS AN AGREEMENT: SIGNED by [INSERT NAME OF RETIRING PARTICIPANT] in the presence of: - -------------------------------------- ----------------------------------- Witness - -------------------------------------- Name (please print) SIGNED by [INSERT NAME OF SUBSTITUTE PARTICIPANT] in the presence of: - -------------------------------------- ----------------------------------- Witness - -------------------------------------- Name (please print) - -------------------------------------------------------------------------------- page 118 127 NTL Subscription Agreement SIGNED by [INSERT NAME OF AGENT] in the presence of: - -------------------------------------- ----------------------------------- Witness - -------------------------------------- Name (please print) - -------------------------------------------------------------------------------- page 119 EX-10.4 6 y49999ex10-4.txt CREDIT AGREEMENT 1 Exhibit 10.4 C L I F F O R D LIMITED LIABILITY PARTNERSHIP C H A N C E CONFORMED COPY DATED 28 MARCH 2000 NTL INCORPORATED AS PARENT NTL CABLECOM HOLDING GmbH AS SHAREHOLDER CABLECOM (OSTSCHWEIZ) AG AS PRINCIPAL BORROWER CHASE MANHATTAN PLC AND MORGAN STANLEY SENIOR FUNDING, INC. AS ARRANGERS AND JOINT BOOK MANAGERS CHASE MANHATTAN INTERNATIONAL LIMITED AS AGENT AND OTHERS -------------------------------------------------------------- CHF4,100,000,000 CREDIT AGREEMENT RELATING TO THE ACQUISITION OF THE CABLECOM BUSINESS -------------------------------------------------------------- 2 CONTENTS
CLAUSE PAGE - ------ ---- 1. Definitions And Interpretation .............................. 1 2. The Facilities .............................................. 34 3. Utilisation Of The Original Term Facility ................... 35 4. Interest Periods For Original Term Advances ................. 36 5. Payment And Calculation Of Interest On Original Term Advances 37 6. Utilisation Of The Revolving Facility ....................... 39 7. Payment And Calculation Of Interest On Revolving Advances ... 41 8. Market Disruption And Alternative Interest Rates ............ 41 9. Notification ................................................ 42 10. Repayment Of The Original Term Facility ..................... 43 11. Repayment Of The Revolving Facility And Term-Out Option ..... 44 12. Cancellation And Prepayment ................................. 46 13. Mandatory Prepayment ........................................ 48 14. Taxes ....................................................... 52 15. Tax Receipts ................................................ 55 16. Increased Costs ............................................. 56 17. Illegality .................................................. 57 18. Mitigation .................................................. 58 19. Representations ............................................. 58 20. Financial Information ....................................... 67 21. Financial Condition ......................................... 71 22. Covenants ................................................... 77 23. Events Of Default ........................................... 86 24. Guarantee And Indemnity ..................................... 92 25. Commitment Commission And Fees .............................. 95 26. Costs And Expenses .......................................... 97 27. Default Interest And Break Costs ............................ 98 28. Borrowers' Indemnities ...................................... 99 29. Currency Of Account And Payment ............................. 99 30. Payments .................................................... 100 31. Set-Off ..................................................... 103
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CLAUSE PAGE 32. Sharing ..................................................... 103 33. The Agent, The Arrangers And The Banks ...................... 107 34. Assignments And Transfers ................................... 113 35. Additional Borrowers ........................................ 116 36. Additional Guarantors ....................................... 117 37. Permitted Facilities Provider ............................... 118 38. Calculations And Evidence Of Debt ........................... 118 39. Remedies And Waivers, Partial Invalidity .................... 119 40. Notices ..................................................... 120 41. Counterparts ................................................ 121 42. Amendments .................................................. 121 43. Governing Law ............................................... 123 44. Jurisdiction ................................................ 123 Schedule 1 THE ORIGINAL PARTIES .................................. 125 Part A The Obligors ......................................... 125 Part B The Operating Companies .............................. 127 Part C The Banks ............................................ 128 Schedule 2 FORM OF TRANSFER CERTIFICATE .......................... 130 Schedule 3 CONDITIONS PRECEDENT .................................. 133 Schedule 4 NOTICE OF DRAWDOWN .................................... 137 Schedule 5 FORM OF COMPLIANCE CERTIFICATE ........................ 139 Schedule 6 FORM OF BORROWER ACCESSION MEMORANDUM ................. 140 Schedule 7 FORM OF GUARANTOR ACCESSION MEMORANDUM ................ 142 Schedule 8 ADDITIONAL CONDITIONS PRECEDENT ....................... 144 Schedule 9 FORM OF RESIGNATION NOTICE ............................ 146 Schedule 10 MANDATORY COSTS ...................................... 147 Schedule 11 CONFIDENTIALITY UNDERTAKING .......................... 149 Schedule 12 EXISTING MORTGAGES ................................... 153 Schedule 13 FORM OF DEED OF ACCESSION ............................ 154
4 THIS AGREEMENT is made on 28 March 2000 BETWEEN (1) NTL INCORPORATED a company registered in Delaware,of 110 East 59th Street, New York NY10022, USA (the "PARENT"); (2) NTL CABLECOM HOLDING GmbH (the "SHAREHOLDER"); (3) CABLECOM (OSTSCHWEIZ) AG (the "PRINCIPAL BORROWER"); (4) THE COMPANIES listed in Part A of Schedule 1 as original borrowers (The Original Parties) in their capacity as borrowers hereunder (together with the Principal Borrower, the "ORIGINAL BORROWERS"); (5) THE COMPANIES listed in Part A of Schedule 1 as original guarantors (The Original Parties) in their capacity as guarantors hereunder (together with the Shareholder and the Principal Borrower, the "ORIGINAL GUARANTORS"); (6) CHASE MANHATTAN PLC and MORGAN STANLEY SENIOR FUNDING, INC. as arrangers of the Facility (the "ARRANGERS"); (7) CHASE MANHATTAN INTERNATIONAL LIMITED as agent for the Banks (the "AGENT"); and (8) THE BANKS (as defined below). IT IS AGREED as follows. 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS In this Agreement: "A DEBT" means the rights and obligations of the lender under the First Loan Agreement, such rights being subordinated by the Subordination Deed and pledged by the Subordinated NTL CV1 Debt Pledge. "ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a Guarantor Accession Memorandum. "ACCOUNTANTS' LETTER" means the letter from Ernst & Young in the agreed form, addressed to and capable of being relied upon by the Finance Parties, confirming that based upon projections provided by the Parent, which have not been audited by Ernst & Young, each Original Borrower will have: (a) projected income (including, if relevant, dividend receipts) sufficient to enable it to service, in full, all its projected indebtedness under the Facilities; and (b) sufficient taxable income to ensure full tax deductibility on all projected interest payments to be made by it under the Facilities, - 1 - 5 or, to the extent either (a) or (b) above will not be satisfied based upon such projections, identifying any relevant shortfalls and indicating how the Original Borrowers intend to address those shortfalls. "ACQUISITION" means the purchase by the Parent (or its directly wholly owned subsidiary) and the Principal Borrower of the Cablecom Business. "ACQUISITION AGREEMENT" means the transaction agreement dated as of 12 December 1999 between the Parent, the Vendor and the Vendor's shareholders, setting out the terms of the Acquisition, together with all schedules, exhibits and attachments to such agreement. "ACQUISITION AGREEMENT ASSIGNMENT" means the assignment agreement entered into by the Shareholder and the Principal Borrower, assigning their respective rights under the Acquisition Documents to the Agent (on behalf of the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and/or to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "ACQUISITION DATE" means the date on which the Acquisition is completed in accordance with clause 3.3 of the Acquisition Agreement. "ACQUISITION DOCUMENTS" means the Acquisition Agreement and all documents executed pursuant thereto on or before the Acquisition Date, the assignment agreements between certain members of the NTL Inc. Holding Group and the Principal Borrower (assigning certain rights of the Parent under the Acquisition Agreement to the Shareholder and the Principal Borrower) and each other document (if any) relating to the transactions contemplated in the Acquisition Agreement and identified by the Agent and the Principal Borrower in writing as an Acquisition Document. "ACQUISITION EVENT OF DEFAULT" means any circumstance constituting an Event of Default under any of the following Clauses: (a) Clause 23.1 (Failure to Pay); (b) Clause 23.2 (Misrepresentation) (to the extent such relates to an Acquisition Repeated Representation); (c) Clause 23.7 (Insolvency and Rescheduling) to Clause 23.10 (Failure to Comply with Final Judgment) (inclusive), as if references therein to "any member of the Restricted Group" were references to the Parent, each other member of the NTL Inc. Holding Group, the Principal Borrower and CC AG; or (d) Clause 23.15 (Illegality). "ACQUISITION POTENTIAL EVENT OF DEFAULT" means any event which would become (with the passage of time, the giving of notice, the making of any determination hereunder or any combination thereof) an Acquisition Event of Default. - 2 - 6 "ACQUISITION RECOVERY PROCEEDS" means the proceeds of any payment made by the Vendor, the Vendor's shareholders or the Vendor's (or the Vendor's shareholders') affiliates, employees, officers or advisers under or in relation to the Acquisition Documents including (without limitation) the proceeds of any payment in respect of: (a) a claim for breach of contract or warranty, misrepresentation or a claim under an indemnity; or (b) an adjustment to the Net Purchase Price (as defined in the Acquisition Agreement) in accordance with either an adjustment to the net assets of the Cablecom Business and/or the number of subscribers comprised in the Cablecom Business, in accordance with clause 2.2.5 and clause 2.2.6 respectively of the Acquisition Agreement; (c) clause 6.2.1(b) of the Acquisition Agreement, relating to the number of subscribers of the Cablecom Business; or (d) clause 4.7 of the Acquisition Agreement, relating to a payment out of an escrow amount into which dividends of the Cablecom Business have been paid. "ACQUISITION REMEDY" means the application of Acquisition Recovery Proceeds towards: (a) the discharge of a liability, charge or claim made upon any member of the NTL Inc. Holding Group or the Group, where the Vendor or the Vendor's shareholders are obliged under the Acquisition Documents to indemnify or otherwise reimburse the relevant member of the NTL Inc. Holding Group or the Group for such a liability, charge or claim; or (b) reimbursing a member of the NTL Inc. Holding Group or the Group for monies disbursed in connection with discharging any liability, charge or claim referred to in paragraph (a) above; or (c) replacing, reinstating and/or repairing assets of the Cablecom Business where the loss of, or damage to, such assets gave rise to a claim for breach of contract or warranty, misrepresentation or a claim under an indemnity under the Acquisition Documents. "ACQUISITION REPEATED REPRESENTATIONS" means each of the representations set out in Clause 19.1 (Status) to Clause 19.4 (Execution of the Finance Documents), sub-clause 19.16.1 of Clause 19.16 (No NTL Note Defaults), Clause 19.21 (No Material Defaults), Clause 19.28 (Ownership of the Principal Borrower), Clause 19.30 (Consents and Approvals) (excluding sub-clause 19.30.1 thereof), Clause 19.31 (Security Interest) and Clause 19.33 (Good Title to Assets). "ADDITIONAL BORROWER" means any company which has become an Additional Borrower in accordance with Clause 35 (Additional Borrowers). - 3 - 7 "ADDITIONAL GUARANTOR" means any company which has become an Additional Guarantor in accordance with Clause 36 (Additional Guarantors). "ADDITIONAL MERGERS" means mergers of the Principal Borrower with other members of the Restricted Group where, in respect of each such merger: (a) the Principal Borrower is the surviving entity, having all the rights and obligations which the merged entity and the Principal Borrower itself had immediately prior to such a merger taking effect; and (b) the merger is effected pursuant to documentation, and in accordance with any Swiss legal or procedural requirements, approved or deemed applicable by the Agent's Swiss counsel. "ADDITIONAL OBLIGOR" means an Additional Borrower or Additional Guarantor. "ADDITIONAL SUBORDINATED DEBT" means any loan by the Shareholder or any member of the NTL Inc. Holding Group to a member of the Restricted Group, where: (a) the Agent has been given at least five Business Days prior written notice that such a loan is to be made; (b) the lender's rights under such a loan have been subordinated by an agreement or deed approved by the Agent, such an agreement or deed permitting repayments of principal, payments of interest and any other payments to the lender only to the extent that such payments amount to Permitted Distributions under paragraph (b) of the definition thereof; and (c) if either (i) requested by the Agent (acting reasonably) or (ii) the amount of such a loan, when aggregated with the amount of all other Additional Subordinated Debt owed by members of the Restricted Group at the time such a loan is made and in respect of which the relevant lenders' rights have not been assigned to the Agent (or the Finance Parties) and/or the Permitted Facilities Provider is equal to or greater than CHF25,000,000, the lender's rights under such a loan have been assigned to the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities by an agreement or deed approved by the Agent. "ADVANCE" means a Revolving Advance, an Original Term Advance or a Term-out Advance. "ANNUALISED EBITDA" has the meaning given to it in Clause 21 (Financial Condition). "AUTHORISED SIGNATORY" means, in relation to the Parent, NTL SPV LLC (as the general partner of NTL CV1), an Obligor or proposed Obligor, any person who is duly - 4 - 8 authorised (in such manner as may be reasonably acceptable to the Agent) to act on behalf of such person and in respect of whom the Agent has received a certificate signed by a director or another Authorised Signatory of the Parent, NTL SPV LLC or, as the case may be, such Obligor or proposed Obligor setting out the name and signature of such person and confirming such person's authority to act. "AVAILABLE COMMITMENT" means, in relation to a Bank at any time, the aggregate of its Available Term Commitment and Available Revolving Commitment. "AVAILABLE EXCESS CASH FLOW" means, at any time, the aggregate Excess Cash Flow generated in respect of each financial year of the Principal Borrower, commencing with the financial year ended 31 December 2003, less the amount of such Excess Cash Flow (in respect of each financial year) which is required to be used (with respect to such financial year) to prepay the Loan in accordance with Clause 13.1 (Mandatory Prepayment from Excess Cash Flow) PROVIDED THAT any amount falling within this definition of Available Excess Cash Flow may not be distributed or otherwise spent more than once. "AVAILABLE REVOLVING COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, its Revolving Commitment at such time LESS its share of the Revolving Advances which are then outstanding, PROVIDED THAT such amount shall not be less than zero. "AVAILABLE REVOLVING FACILITY" means, at any time, the aggregate amount of the Available Revolving Commitments adjusted, in the case of any proposed drawdown, so as to take into account: (a) any reduction in the Revolving Commitment of a Bank pursuant to the terms hereof; (b) any Revolving Advance which, pursuant to any other drawdown, is to be made; and (c) any Revolving Advance which is due to be repaid, on or before the proposed drawdown date. "AVAILABLE TERM COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, its Term Commitment at such time LESS the aggregate of its share of the Original Term Advances which are then outstanding. "AVAILABLE TERM FACILITY" means, at any time, the aggregate amount of the Available Term Commitments adjusted, in the case of any proposed drawdown, so as to take into account any reduction in the Term Commitment of a Bank on or before the proposed drawdown date pursuant to the terms hereof. - 5 - 9 "AVERAGE REVENUE CONTRIBUTION" means, in respect of any asset at any time: A + B - - - 2 where: A = the revenue generated by, or attributable (whether in whole or in part) to, such asset during the immediately preceding financial year of the Principal Borrower, expressed as a percentage of the total consolidated revenue of the Restricted Group for such a financial year; and B = the revenue generated by, or attributable (whether in whole or in part) to, such asset during the financial year of the Principal Borrower preceding that referred to in A above, expressed as a percentage of the total consolidated revenue of the Restricted Group for such financial year. "B DEBT" means the rights and obligations of the lender under the Second Loan Agreement. "BANK" means any financial institution: (a) named in Part C of Schedule 1 (The Original Parties); or (b) which has become a party hereto in accordance with Clause 34.4 (Assignments by Banks) or Clause 34.5 (Transfers by Banks), and which has not ceased to be a party hereto in accordance with the terms hereof. "BORROWERS" means each of the Original Borrowers and each Additional Borrower, PROVIDED THAT such company has not been released from its rights and obligations hereunder in accordance with Clause 35.3 (Resignation of a Borrower). "BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the form set out in Schedule 6 (Form of Borrower Accession Memorandum). "BUDGET" means a budget delivered by the Principal Borrower to the Agent pursuant to Clause 20.5 (Budgets). "BUSINESS DAY" means a day (other than a Saturday or Sunday) which is not a public holiday and on which banks generally are open for business in London and Zurich. "BUSINESS PLAN" means the financial model including profit and loss accounts, balance sheets and cash flow projections, in agreed form, relating to the Restricted Group (for these purposes assuming completion of the Acquisition). "BV1" means Nogenta Swiss Acquisition Holding 1 B.V., a limited liability company incorporated in The Netherlands and (following the completion of the Hivedown) being a wholly owned subsidiary of NTL CV1. - 6 - 10 "CABLECOM BUSINESS" means: (a) the Principal Borrower; (b) the Cablecom Subsidiaries and the minority interests of the Cablecom Subsidiaries; (c) the other assets and liabilities of the Vendor acquired by, or (as the case may be) transferred to, the Principal Borrower, CC AG or, as the case may be, the Cablecom Subsidiaries pursuant to the Acquisition Documents and the Hivedown; and (d) prior to the completion of the Initial Mergers, CC AG and its subsidiaries. "CABLECOM SUBSIDIARIES" means the direct and indirect subsidiaries of the Vendor acquired by the Principal Borrower pursuant to the Acquisition Documents and the Hivedown. "CC AG" means Cablecom AG. "C DEBT" means the rights and obligations of the lender under the Third Loan Agreement, such rights being subordinated by the Subordination Deed and pledged by the Subordinated NTL CV1 Debt Pledge. "COMMITMENT" means, in relation to a Bank at any time, the aggregate of its Term Commitment and its Revolving Commitment. "COMPLIANCE CERTIFICATE" means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate). "CONFIDENTIALITY UNDERTAKING" means the confidentiality undertaking set out in Schedule 11 (Confidentiality Undertaking) or such other form of confidentiality undertaking as may be agreed between the Parent, the Principal Borrower and the Agent. "CONSOLIDATED PRO-FORMA DEBT SERVICE" has the meaning given to it in Clause 21 (Financial Condition). "CONVERSION SUBSIDIARIES" means the members of the Restricted Group identified in the Reorganisation Summary as being entities who will be converted into Swiss limited liability companies ("GmbH"s) as part of the Reorganisation. "DEED OF ACCESSION" means a deed substantially in the form set out in Schedule 13 (Form of Deed of Accession). "DISPUTE" means any dispute referred to in Clause 43 (Jurisdiction). "DISCLOSURE LETTER" means the letter, in the agreed form, dated on or before the date of this Agreement from the Principal Borrower to the Agent (on behalf of the Finance - 7 - 11 Parties) setting out various matters to be excluded from certain representations and covenants in this Agreement. "EBITDA" has the meaning given to it in Clause 21 (Financial Condition). "EMU" means Economic and Monetary Union as contemplated in the Treaty on European Union. "EMU LEGISLATION" means legislative measures of the European Union for the introduction of, changeover to or operation of the euro in one or more member states, being in part legislative measures to implement EMU. "ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other encumbrance 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 discharge of any sum owed or payable to any person or (c) any other type of preferential arrangement (including any title transfer and retention arrangement) having a similar effect. "ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any person pursuant to any Environmental Law. "ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which any member of the Restricted Group conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants. "ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and other authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Restricted Group conducted on or from the properties owned or used by the relevant member of the Restricted Group. "ESCROW ACCOUNT" means an escrow account, bearing interest at a commercially reasonable rate in relation to the given circumstances, held with the Agent (or any financial institution acceptable to the Agent) in the name of the Shareholder or a member of the Restricted Group which is opened after the date hereof (as the same may be redesignated, substituted or replaced from time to time) which is pledged, charged or assigned to the Agent (or the Finance Parties) pursuant to a Security Document to secure all amounts due under the Finance Documents and into which certain monies are paid pursuant to Clause 13 (Mandatory Prepayment). "EVENT OF DEFAULT" means any circumstance described as such in Clause 23 (Events of Default). "EXCESS CASH FLOW" has the meaning given to it in Clause 21 (Financial Condition). "EXISTING INDEBTEDNESS" means the indebtedness of the Cablecom Business outstanding on the Acquisition Date. - 8 - 12 "EXISTING MORTGAGES" means the Swiss law mortgages ("Hypotheken") set out in Schedule 12 (Existing Mortgages) granted by certain members of the Restricted Group, subsisting on the date of this Agreement and relating only to those assets identified in Schedule 12 (Existing Mortgages). "FACILITIES" means the Original Term Facility, the Revolving Facility and the Term-Out Facility. "FACILITY OFFICE" means, in relation to the Agent, the office identified with its signature below or such other office as it may select by notice and, in relation to any Bank, the office notified by it to the Agent in writing prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) or such other office as it may from time to time select by notice to the Agent. "FINANCE DOCUMENTS" means this Agreement, any Borrower Accession Memorandum, any Guarantor Accession Memorandum, any fee letters delivered pursuant to Clause 25 (Commitment Commission and Fees), the Security Documents, the Hedging Agreements, the Subordination Deed (and any other subordination agreements or deeds executed in relation to any Additional Subordinated Debt) and any other document designated as such by agreement between the Agent and the Principal Borrower. "FINANCE PARTIES" means the Agent, the Arrangers, the Banks and any Hedge Counterparties. "FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of: (a) Indebtedness for Borrowed Money; (b) any documentary or standby letter of credit facility or performance bond facility; (c) any interest rate swap, currency swap, forward foreign exchange transaction, cap, floor, collar or option transaction or any other treasury transaction or any combination thereof or any other transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and the amount of the Financial Indebtedness in relation to any such transaction shall be calculated by reference to the mark-to-market valuation of such transaction at the relevant time); and (d) (without double counting) any guarantee or indemnity for any of the items referred to in paragraphs (a) to (c) above. "FINANCIAL QUARTER" has the meaning given to it in Clause 21 (Financial Condition). "FIRST LOAN AGREEMENT" means the loan agreement, in the agreed form, entered into between NTL SPV Inc. as lender and the Principal Borrower as borrower, setting out the terms on which the indebtedness owed by the Principal Borrower in respect of the First Sale and Purchase Agreement remains outstanding. - 9 - 13 "FIRST SALE AND PURCHASE AGREEMENT" means the share sale and purchase agreement, in the agreed form, entered into in relation to the Hivedown, between NTL SPV Inc. as seller and the Principal Borrower as buyer of Cablecom (Zentralschweiz) AG, Cablecome (Bern) AG, Cablecom Signal Olten AG and Kilchenmann Holding AG, the consideration payable by the Principal Borrower being represented by the A Debt. "GROUP" means the Shareholder and its subsidiaries from time to time. "GROUP STRUCTURE CHART" means the group structure chart in agreed form: (a) showing the NTL Inc. Holding Group; (b) showing all members of the Group; (c) showing any person in which any Group member has an interest in the issued share capital or equivalent ownership interest of such person; (d) showing the jurisdiction of incorporation or establishment of each person within paragraph (a), paragraph (b) or paragraph (c) above; (e) showing all Intra-Group Loans existing as at the Acquisition Date and the Subordinated Funding; (f) confirming that, on the Acquisition Date, all members of the NTL Inc. Holding Group (other than the Parent) are wholly-owned subsidiaries of the Parent; and (g) confirming that all members of the Restricted Group are wholly-owned subsidiaries of the Principal Borrower (or specifying the percentage shareholdings of any members of the Restricted Group which are not such wholly-owned subsidiaries). "GUARANTORS" means each of the Original Guarantors and each Additional Guarantor, PROVIDED THAT such company has not been released from its rights and obligations hereunder in accordance with Clause 36.3 (Resignation of a Guarantor). "GUARANTOR ACCESSION MEMORANDUM" means a memorandum substantially in the form set out in Schedule 7 (Form of Guarantor Accession Memorandum). "HEDGE COUNTERPARTY" means a Bank or an affiliate of a Bank who (a) is, at the time it enters into a Hedging Agreement rated at least A by Standard and Poor's Rating Corporation and A2 by Moody's Investors Services, Inc. and (b) has agreed to enter into a Hedging Agreement. "HEDGING AGREEMENTS" means each of the agreements entered into or to be entered into between certain Borrowers and Hedge Counterparties for the purpose of hedging interest rate liabilities in accordance with Clause 22.26 (Hedging). "HEDGING BANK" means a Bank who either is, or becomes, a Hedge Counterparty or who has an affiliate which is, or becomes, a Hedge Counterparty. - 10 - 14 "HEDGING LIABILITIES" means all present and future sums and actual or contingent liabilities and obligations payable, owing, due or incurred by any Borrower to any Hedge Counterparty pursuant to the terms of any Hedging Agreement, as determined by the relevant Hedge Counterparty (acting reasonably) and agreed by the Agent. "HIVEDOWN" means, in respect of that part of the Cablecom Business acquired by NTL SPV Inc. the transfer of such in accordance with the structure chart and step plan set out in schedule 4 to the Accountants' Letter, so that such part of the Cablecom Business is (at the end of the series of transactions set out therein) owned by the Shareholder and the Principal Borrower. "INDEBTEDNESS FOR BORROWED MONEY" means 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; (d) any amount raised pursuant to any issue of shares which are expressed to be redeemable (other than shares redeemable after 30 September 2010); (e) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with generally accepted accounting principles in the relevant jurisdiction, be treated as a finance or capital lease; (f) the amount of any liability in respect of any advance or deferred purchase agreement if the primary reason for entering into such agreement is to raise finance; (g) receivables sold or discounted (other than on a non-recourse basis); (h) any agreement or option to re-acquire an asset if the primary reason for entering into such agreement or option is to raise finance; (i) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; and (j) (without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above. "INFORMATION MEMORANDUM" means the document concerning the Cablecom Business and the Parent which, at the request and on behalf of the Parent, has been prepared in relation to this transaction, approved by the Parent and distributed by the Arrangers to selected banks during February 2000 (as the same may be updated on or before the Syndication Date). - 11 - 15 "INITIAL MERGERS" means the mergers of the Principal Borrower with: (a) Kilchenmann Holding AG after Kilchenmann Kabelfernsehen AG is merged into it; (b) Cablecom (Zentralschweiz) AG, Cablecom (Mittelland) AG, Cablecom (Bern) AG, and Cablecom Signal Olten AG; and (c) thereafter, with CC AG, in each case (i) with the Principal Borrower being the surviving entity, having all the rights and obligations which each of the above merged entities and the Principal Borrower itself had immediately prior to such mergers taking effect and (ii) pursuant to documentation, and in accordance with any Swiss legal or procedural requirements, approved or deemed applicable by the Agent's Swiss counsel. "INITIAL SHARE PLEDGES" means the Swiss law pledges over the shares of certain members of the Restricted Group (as agreed between the Agent and the Principal Borrower), such pledges being granted in favour of the Finance Parties as security for the obligations of the Obligors under the Finance Documents and/or the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "INSTRUCTING GROUP" means: (a) before any Advances have been made, a Bank or Banks whose Commitments amount in aggregate to more than sixty-six and two thirds per cent. of the Total Commitments; and (b) thereafter, a Bank or Banks to whom in aggregate more than sixty-six and two thirds per cent. of the Loan is (or, immediately prior to its repayment, was then) owed. "INTELLECTUAL PROPERTY" means all patents, trade marks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered, and the benefit of all licences, applications and rights to use such intellectual property now or hereafter belonging to any member of the Group. "INTEREST PERIOD" means, save as otherwise provided herein: (a) any of those periods mentioned in Clause 4.1 (Original Term Advance Interest Periods) or Clause 11.4 (Term-Out Advance Interest Periods); and (b) in relation to an Unpaid Sum, any of those periods mentioned in Clause 27.1 (Default Interest Periods). - 12 - 16 "INTRA-GROUP LOAN ASSIGNMENTS" means the assignment agreements entered into by: (a) the Principal Borrower, in respect of the Intra-Group Loan owed to it by Cablecom Suisse Romande SA and Cablecom Engineering SA following the completion of paragraph (a) of the definition of the Reorganisation; and (b) any Obligor, in respect of an Intra-Group Loan by such an Obligor to another Obligor, in each case in favour of the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and/or the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "INTRA-GROUP LOANS" means any loan (a) between the Shareholder and members of the Restricted Group and (b) between members of the Restricted Group. "KEY SITES" means the digital master headend sites located at Zurich-Leimbach, Winterthur and St. Gallen. "LEGAL OPINIONS" means the legal opinions delivered to the Agent pursuant to Clause 2.3 (Conditions Precedent), Clause 35.2 (Borrower Conditions Precedent) or, as the case may be, Clause 36.2 (Guarantor Conditions Precedent). "LIBOR" means, in relation to any amount to be advanced to or owing by an Obligor under the Finance Documents on which interest for a given period is to accrue: (a) the percentage rate per annum equal to the offered quotation which appears on the page of the Telerate Screen which displays the British Bankers Association Interest Settlement Rate for Swiss Francs (being currently "3750") or the currency of any Unpaid Sum for such period as of 11.00 a.m. on the Quotation Date for such period or, if such page or such service shall cease to be available, such other page or such other service for the purpose of displaying the British Bankers Association Interest Settlement Rate for Swiss Francs (or the currency of such Unpaid Sum) as the Agent, after consultation with the Banks and the Principal Borrower, shall select; or (b) if no quotation for Swiss Francs (or the currency of such Unpaid Sum) and the relevant period is displayed under (a) above and the Agent has not selected an alternative service on which a quotation is displayed, the arithmetic mean (rounded upwards to five decimal places) of the rates (as notified to the Agent) at which each of the Reference Banks was offering to prime banks in the London interbank market deposits in Swiss Francs (or the currency of such Unpaid Sum) for such period as of 11.00 a.m. on the Quotation Date for such period. "LICENCES" means: (a) telecommunication licences, under the Telecommunication Act; - 13 - 17 (b) broadcasting and transmission licences ("Weiterverbreitungs- Konzessionen"), under the Radio and Television Act; and (c) Telecommunication Act permits. "LOAN" means, at any time, the aggregate of the Original Term Loan and the Revolving Loan (or, after the Revolving Termination Date, the Term-Out Loan). "MANDATORY COST RATE" means the rate determined in accordance with Schedule 10 (Mandatory Costs). "MARGIN" means, for all Advances, the percentage rate per annum determined in accordance with Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin). "MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of the Restricted Group taken as a whole or (b) the ability of an Obligor to perform its material obligations under the Finance Documents to which it is a party. "MATERIAL COMMERCIAL CONTRACTS" means any agreements, contracts or licences entered into or granted to any member of the Restricted Group which are reasonably likely to be material to the business or prospects of the Restricted Group taken as a whole. "MAXIMUM PERMITTED INTRA-GROUP LOANS" has, in relation to an Obligor, the meaning given to it in sub-clause 20.2.2 of Clause 20.2 (Quarterly Statements). "MORTGAGES" means the Swiss law mortgages, in the agreed form, over the Key Sites, to be granted by certain Obligors in favour of the Finance Parties as security for the obligations of the Obligors under the Finance Documents and/or the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "NET AVERAGE REVENUE CONTRIBUTIONS" means, at any time: (a) the aggregate of the Average Revenue Contributions of all assets disposed of under paragraph (f) of the definition of Permitted Disposals, less (b) the aggregate of the estimated Average Revenue Contributions of all assets acquired by members of the Restricted Group either in exchange for, or out of the proceeds of the disposal of, assets disposed of under paragraph (f) of the definition of Permitted Disposals (such estimated Average Revenue Contributions to be reasonably agreed between the Principal Borrower and the Agent on the basis of the revenues such acquired assets could have reasonably been expected to have generated for the two financial years of the Principal Borrower immediately preceding the date of their acquisition, had such assets - 14 - 18 been owned by the relevant member of the Restricted Group throughout those two financial years). "NOTICE OF DRAWDOWN" means a notice substantially in the form set out in Schedule 4 (Notice of Drawdown). "NOTICE PERIOD" means the period commencing ten Business Days before the last day of the current Interest Period or Term of an existing Advance and ending 10.00 a.m. three Business Days before the last day of the current Interest Period or Term of an existing Advance or, as the case may be, the period commencing ten Business Days before the proposed date for the making of an Advance and ending 10.00 a.m. three Business Days before the proposed date for the making of the Advance. "NOTIFICATION TIME" means 5.30 p.m. on the day three Business Days before the first day of an Interest Period or Term. "NTL CV1" means Cable Connect Switzerland 1 C.V., a limited partnership ("Commanditaive Vennoolschap") established under Dutch law between NTL SPV Inc. as a limited partner and NTL SPV LLC as a general partner. "NTL HOLDINGS INC." means a newly incorporated company which, as part of the acquisition by the Parent of the cable business of Cable and Wireless Communications plc, it is proposed will acquire 100 per cent. of the issued share capital of the Parent. "NTL INC. GROUP" means the Parent or, after the acquisition of the Parent by NTL Holdings Inc., NTL Holdings Inc. and each of the Parent's or, as the case may be, NTL Holdings Inc.'s subsidiaries (other than any member of the NTL Inc. Holding Group (other than the Parent) or the Group). "NTL INC. HOLDING GROUP" means the Parent (or, after the acquisition of the Parent by NTL Holdings Inc., NTL Holdings Inc.) and the Shareholder's other holding companies. "NTL NOTES" means, to the extent such have been issued in either domestic or international capital markets, the bonds, notes or similar public debt instruments issued by members of the NTL Inc. Group or, as the case may be, members of the NTL Inc. Holding Group (in each case where such members of the NTL Inc. Group or NTL Inc. Holding Group are incorporated in any state of the United States of America) and outstanding at or at any time after the date of this Agreement. "NTL SPV INC." means NTL Switzerland SPV, Inc., a newly incorporated Delaware company, being a wholly owned subsidiary of the Parent. "NTL SPV LLC" means NTL Switzerland Holdings SPV LLC, a newly formed Delaware limited liability corporation, being a wholly owned subsidiary of NTL SPV Inc. "OBLIGORS" means the Borrowers and the Guarantors. - 15 - 19 "OPERATING COMPANIES" means the members of the Restricted Group named in Part B of Schedule 1 (The Original Parties). "ORIGINAL FINANCIAL STATEMENTS" means: (a) in relation to the Cablecom Business, the audited pro-forma combined financial statements of the companies which constitute the Cablecom Business on the Acquisition Date, for the financial year ended 31 December 1999 based on the Vendor's audited consolidated financial statements for its financial year ended 31 December 1999; (b) in relation to each Obligor (other than the Shareholder), its audited financial statements for its financial year ended 31 December 1998; (c) in relation to each Obligor (other than the Shareholder), its audited balance sheet as at 31 December 1999; and (d) in relation to any Additional Obligor, its audited financial statements delivered pursuant to Schedule 8 (Additional Conditions Precedent). "ORIGINAL OBLIGORS" means the Original Borrowers and the Original Guarantors. "ORIGINAL TERM ADVANCE" means an advance (as from time to time consolidated, divided or reduced by repayment) made or to be made by the Banks under the Original Term Facility. "ORIGINAL TERM AVAILABILITY PERIOD" means, in relation to the Original Term Facility, the period from and including the date hereof to and including the earlier of (a) 31 October 2000 and (b) the first Business Day on which the Available Term Commitment of each of the Banks is zero. "ORIGINAL TERM FACILITY" means the Swiss Franc term loan facility granted to the Borrowers in this Agreement. "ORIGINAL TERM LOAN" means, at any time, the aggregate principal amount of outstanding Original Term Advances at such time. "ORIGINAL TERM REPAYMENT DATE" means each of the dates specified in Clause 10.1 (Original Term Loan Repayment Instalments), PROVIDED THAT if such date is not a Business Day, it shall be deemed to be the next succeeding Business Day. "PARTICIPATING MEMBER STATE" means each member state of the European Union which has adopted the euro as its lawful currency at the relevant time. "PERMITTED ACQUISITIONS" means any of the following: (a) acquisitions of (or of any interests in) companies, partnerships, consortia, joint ventures or other arrangements made by the Shareholder or a newly incorporated subsidiary of the Shareholder referred to in paragraph (b) below, - 16 - 20 where the relevant company, partnership, consortium, joint venture or other arrangement: (i) engages in, or the business, licence, revenues or assets of such a company, partnership, consortium, joint venture or other arrangement relate to, the operation of a telecommunications and/or cable and/or television and/or telephone network or system or the provision of such services; and (ii) operates primarily within Switzerland, the European Union or any other country in Europe; (b) the purchase, subscription for, or other acquisition of any shares by: (i) the Shareholder in a newly incorporated company which becomes a subsidiary of the Shareholder, where such subsidiary's primary purpose is to make acquisitions within paragraph (a) above; or (ii) any member of the Restricted Group in a newly incorporated Swiss company which becomes a subsidiary of that member of the Restricted Group, where such subsidiary's only activity is to make acquisitions within paragraph (d) and/or paragraph (e) below; (c) acquisitions comprising the purchase, subscription for, or other acquisition of any new shares in: (i) any Obligor by any other Obligor, where (a) such acquiring Obligor is and remains the immediate holding company of the Obligor issuing the new shares and (b) such shares are made subject to a Share Pledge; or (ii) any member of the Restricted Group by another member of the Restricted Group which is not an Obligor; (d) acquisitions of (or of any interests in) (A) companies, partnerships, consortia, joint ventures or other arrangements or (B) businesses, licences, revenues or assets made by any member of the Restricted Group, where: (i) the aggregate consideration for such acquisitions under this paragraph (d) does not exceed CHF50,000,000; (ii) the acquired company, partnership, consortium, joint venture or other arrangement or the acquired business, licence, revenues or asset (a) engages in or, as the case may be, relates to the operation of a telecommunications and/or cable and/or television and/or telephone network or system or the provision of such services and (b) primarily operates or, as the case may be, is located within Switzerland; and - 17 - 21 (iii) the Financial Indebtedness of any acquired company which becomes a member of the Restricted Group, outstanding immediately after the acquisition, comprises only Permitted Financial Indebtedness; (e) acquisitions made by any member of the Restricted Group, where: (i) if such acquisition is an acquisition of a company, partnership, consortium, joint venture or other person, the acquired entity has, for its most recent financial year, positive earnings before interest, depreciation, amortisation and tax (calculated on the same basis as EBITDA); (ii) the consideration for such acquisition is financed out of Subordinated Funding and/or Available Excess Cash Flow; (iii) the acquired company, partnership, consortium, joint venture or other arrangement or the acquired business, licence, revenues or asset (a) engages in or, as the case may be, relates to the operation of a telecommunications and/or cable and/or television and/or telephone network or system or the provision of such services and (b) primarily operates or, as the case may be, is located within Switzerland; and (iv) the Financial Indebtedness of any acquired company which becomes a member of the Restricted Group, outstanding immediately after the acquisition, comprises only Permitted Financial Indebtedness; (f) acquisitions comprising the acquisition of any assets, revenues or, licences of, or the business or any interest therein of: (i) any member of the Restricted Group who is not an Obligor by another member of the Restricted Group who is not an Obligor; or (ii) any Obligor by another Obligor, where the disposal of such an asset, revenue, licence or business is a Permitted Disposal under paragraph (e) of the definition thereof; and (g) acquisitions of any shares, assets, revenues or licences of, or the business or any interest therein of, a member of the Restricted Group by another member of the Restricted Group, where such an acquisition is made to effect the Reorganisation or an Additional Merger. "PERMITTED DISPOSALS" means any disposal: (a) made in the ordinary and usual course of business; - 18 - 22 (b) on arm's length commercial terms of an asset by a member of the Restricted Group who is not an Obligor; (c) for cash on arm's length commercial terms of any surplus or obsolete assets no longer required for the efficient operation of the business of the Restricted Group; (d) of cash, where such a disposal is not otherwise prohibited by the Finance Documents; (e) by an Obligor to another Obligor, provided that: (i) if the relevant assets are subject to an Encumbrance pursuant to a Security Document, they remain so or become subject to a similar Encumbrance in favour of the Finance Parties in the hands of the acquiring Obligor; and (ii) the acquiring Obligor is a Guarantor, and the Principal Borrower demonstrates (to the reasonable satisfaction of the Agent) that the freely distributable reserves of the acquiring Obligor, immediately following such a disposal, will be at least equal to the freely distributable reserves of the disposing Obligor; (f) on (A) arm's length commercial terms for cash consideration or (B) in exchange for similar assets located in Switzerland (or, in the case of a disposal by a member of the Restricted Group incorporated in Austria, located in Austria) which the Agent (acting reasonably) determines to be of a comparable or superior quality, provided that in each case: (i) the Net Average Revenue Contributions at no time exceed 15 per cent; and (ii) the proceeds of any disposal under (A) of this paragraph (f) are applied in accordance with Clause 13.2 (Mandatory Prepayment from Asset Disposals); (g) of an interest in real property by way of a lease or licence granted by a member of the Restricted Group to another member of the Restricted Group on arm's length commercial terms; (h) by a member of the Restricted Group who is not an Obligor to another member of the Restricted Group who is not an Obligor; and (i) necessary to effect the Reorganisation or an Additional Merger. - 19 - 23 "PERMITTED DISTRIBUTIONS" means: (a) the payment or declaration of any dividend, return on capital, repayment of capital contributions or other distribution or payment in respect of share capital by any member of the Restricted Group other than: (i) by the Principal Borrower and, prior to the Initial Mergers, CC AG; or (ii) by a member of the Restricted Group who is an Obligor to another member of the Restricted Group who is not an Obligor; and (b) the payment or declaration of any dividend, return on capital, repayment of capital contributions or other distribution or payment in respect of share capital by the Principal Borrower, or the repayment of principal or payment of interest on Subordinated Funding by the Principal Borrower or any other member of the Restricted Group, in each case where: (i) no Event of Default is continuing; and (ii) such payment, dividend, distribution or, as the case may be, repayment is funded out of Available Excess Cash Flow. "PERMITTED ENCUMBRANCE" means: (a) any Encumbrance relating to the Existing Mortgages, to the extent such Encumbrances relate only to the assets identified in Schedule 12 (Existing Mortgages); (b) any Encumbrance over or affecting any asset acquired by a member of the Restricted Group after the date hereof and subject to which such asset is acquired, if: (i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Restricted Group; and (ii) the Financial Indebtedness secured by such Encumbrance at all times falls within paragraph (k) of the definition of Permitted Financial Indebtedness; (c) any Encumbrance over or affecting any asset of any company which becomes a member of the Restricted Group after the date hereof, where such Encumbrance is created prior to the date on which such company becomes a member of the Restricted Group, if: (i) such Encumbrance was not created in contemplation of the acquisition of such company; and - 20 - 24 (ii) the Financial Indebtedness secured by such Encumbrance at all times falls within paragraph (k) of the definition of Permitted Financial Indebtedness; (d) any netting or set-off arrangement entered into by any member of the Restricted Group in the normal course of its banking arrangements for the purpose of netting its debit and credit balances; (e) any right of set-off or any title transfer or retention of title arrangement entered into by any member of the Restricted Group in the normal course of its trading activities on the counterparty's standard or usual terms (where such terms reasonably accord with the terms generally adopted in the market to which such a trading activity relates); (f) any lien arising by operation of law or by a contract having a similar effect and in each case arising or entered into in the normal course of business, if such lien is discharged within thirty days of arising; (g) any Encumbrance created pursuant to, arising under or evidenced by the Security Documents; (h) any Encumbrance created by any arrangements referred to in paragraph (e) or paragraph (f) of the definition of Indebtedness for Borrowed Money; (i) any Encumbrance arising pursuant to an order of attachment, an injunction restraining the disposal of assets or any similar legal process in each case arising in connection with court proceedings being diligently conducted by the relevant Obligor in good faith; (j) any Encumbrance over cash deposited as security for the relevant Obligor's obligations in respect of a performance bond, guarantee, standby letter of credit or similar facility entered into by such an Obligor in the ordinary course of business; (k) any Encumbrance securing Permitted Financial Indebtedness within paragraph (j) of the definition of Permitted Financial Indebtedness (other than (save for the assignment of receivables granted by Cablecom (Bern) AG and referred to in sub-clause 22.11.4 of Clause 22.11 (Security)) an Encumbrance by way of assignment over receivables assigned by the Receivables and Receivables Account Assignment); and (l) any Encumbrance over receivables (other than an Encumbrance by way of an assignment over receivables assigned by the Receivables and Receivables Account Assignment) entered into by any member of the Restricted Group in the normal course of its banking arrangements in favour of any Swiss bank with whom it maintains accounts PROVIDED THAT (a) such Encumbrance is in existence on the date of this Agreement, (b) that Encumbrance does not secure any outstanding indebtedness of the relevant member of the Restricted Group - 21 - 25 to the relevant bank, (c) the relevant member of the Group is entitled to have such Encumbrance discharged by the relevant bank and (d) such Encumbrance is discharged within 20 Business Days of the date of this Agreement. "PERMITTED FACILITIES" means the Secured Permitted Facilities and any other bank facilities made available to members of the Group (on normal commercial terms) PROVIDED THAT the aggregate indebtedness of all members of the Group in respect of the Secured Permitted Facilities and such other bank facilities at no time exceeds CHF40,000,000 (or its equivalent). "PERMITTED FACILITIES PROVIDER" means the financial institution (if any) which has become the Permitted Facilities Provider in accordance with Clause 37 (Permitted Facilities Provider). "PERMITTED FINANCIAL INDEBTEDNESS" means any Financial Indebtedness: (a) arising under or permitted pursuant to the Finance Documents; (b) in respect of the Subordinated NTL CV1 Debt; (c) in respect of any Additional Subordinated Debt; (d) arising under Permitted Treasury Transactions; (e) of the Shareholder, where: (i) such Financial Indebtedness does not oblige or permit the Shareholder to make any interest payments at any time prior to the date five years after the date hereof (any interest accruing during such a five year period being capitalised with the principal amount outstanding); (ii) such Financial Indebtedness does not have any scheduled repayments or other amortisations prior to 30 September 2010 and has a final maturity date on or after 30 September 2010; and (iii) the proceeds of such Financial Indebtedness are applied by the Shareholder towards Subordinated Funding; (f) arising under Permitted Loans and Guarantees; (g) secured by the Existing Mortgages PROVIDED THAT the amount of Financial Indebtedness secured by each Existing Mortgage does not exceed the relevant amount set out in Schedule 12 (Existing Mortgages); (h) falling within paragraph (e) of the definition of Indebtedness for Borrowed Money ("FINANCE LEASE DEBT") which, when aggregated with any other Finance Lease Debt incurred or by each member of the Restricted Group does not exceed CHF5,000,000 (or its equivalent); - 22 - 26 (i) arising under Permitted Facilities; (j) in respect of Existing Indebtedness PROVIDED THAT such Existing Indebtedness is refinanced by an Original Term Advance within 30 days of the date of this Agreement; and (k) not falling within paragraphs (a) to (j) above PROVIDED THAT the aggregate amount does not exceed CHF10,000,000 (or its equivalent) . "PERMITTED JOINT VENTURE" means either the disposal of shares in the Shareholder or any member of the NTL Inc. Holding Group to, or the issue of further shares by the Shareholder or any member of the NTL Inc. Holding Group to, a company or a subsidiary of a company: (a) which engages primarily in the operation of a telecommunications network; and (b) rated at least A by Standard and Poor's Rating Corporation and A2 by Moody's Investors Services, Inc. "PERMITTED LOANS AND GUARANTEES" means any of the following: (a) trade credit or indemnities granted in the ordinary course of business on usual and customary terms; (b) Intra-Group Loans made by a member of the Restricted Group who is not an Obligor to any other member of the Restricted Group who is not an Obligor; (c) Intra-Group Loans made by a member of the Restricted Group who is not an Obligor to a member of the Restricted Group who is an Obligor, where the rights of the lending member of the Restricted Group have been (a) subordinated to the rights of the Finance Parties under the Finance Documents and (b) assigned to the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities, in each case by agreements or deeds approved by the Agent; (d) Intra-Group Loans made by one Obligor to another Obligor, where: (i) in respect of each relevant borrower Obligor, the aggregate amount of such Intra-Group Loans to that Obligor which are outstanding, at the time of the delivery by the Principal Borrower of a certificate in respect of that borrower Obligor in accordance with sub-clause 20.2.2 of Clause 20.2 (Quarterly Statements), do not exceed the Maximum Intra-Group Loans for that borrower Obligor set out in such a certificate or are (within 10 Business Days of the delivery of such certificate) reduced to an amount no greater than - 23 - 27 the Maximum Intra-Group Loans for that Obligor as set out in such a certificate; (ii) the rights of the lending Obligor under such an Intra-Group Loan have been assigned to the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities by an agreement or deed approved by the Agent; and (iii) if such an Intra-Group Loan is made by the Shareholder it constitutes either Subordinated NTL CV1 Debt or Additional Subordinated Debt; (e) the Intra-Group Loans owed by Cablecom Suisse Romande SA and Cablecom Engineering AG to the Principal Borrower following the completion of paragraph (a) of the definition of the Reorganisation; (f) loans made to employees of any members of the Restricted Group, to a maximum aggregate amount of CHF100,000; (g) Intra-Group Loans existing at the date hereof which do not fall within paragraph (d) above and which have been disclosed in the Disclosure Letter; and (h) any other Intra-Group Loans approved by the Agent (acting on the instructions of an Instructing Group, acting reasonably). "PERMITTED TREASURY TRANSACTIONS" means: (a) the Treasury Transactions entered into in accordance with Clause 22.26 (Hedging); and (b) any other foreign exchange transactions for spot or forward delivery entered into in the ordinary course of business (and not for investment or speculative purposes) to hedge currency exposures incurred by members of the Restricted Group. "POTENTIAL EVENT OF DEFAULT" means any event which would become (with the passage of time, the giving of notice, the making of any determination hereunder or any combination thereof) an Event of Default. "PROPORTION" means, in relation to a Bank: (a) whilst no Advances are outstanding, the proportion borne by its Commitment to the Total Commitments (or, if the Total Commitments are then zero, by its Commitment to the Total Commitments immediately prior to their reduction to zero); or - 24 - 28 (b) whilst at least one Advance is outstanding, the proportion borne by its share of the Loan to the Loan. "QUALIFYING LENDER" means a financial institution which qualifies as a bank pursuant to the laws of its jurisdiction of incorporation and which carries on a genuine banking activity as per explanatory note of the Swiss Federal Tax Administration No. S-02.128 (1.2000). "QUOTATION DATE" means, in relation to any period for which an interest rate is to be determined under the Finance Documents, the day on which quotations would ordinarily be given by prime banks in the London Interbank Market for deposits in Swiss Francs (or the currency of any Unpaid Sum) for delivery on the first day of that period, PROVIDED THAT, if, for any such period, quotations would ordinarily be given on more than one date, the Quotation Date for that period shall be the last of those dates. "RADIO AND TELEVISION ACT" means the Swiss Radio and Television Act ("Bundesgesetz uber Radio und Fernsehen", "RTVB") of 21 June 1991 and all of the ordinances implementing such. "RECEIVABLE ACCOUNTS" means, with respect of each member of the Restricted Group, the bank account(s) into which all the receivables (if any) due to such member of the Restricted Group are paid and such other bank accounts identified in the Receivables and Receivables Accounts Assignment. "RECEIVABLES AND RECEIVABLES ACCOUNTS ASSIGNMENT" means the assignment agreement(s) entered into by the Operating Companies, assigning each Operating Company's rights to all current and future receivables due to it from its trade debtors or subscribers, all current and future monetary claims due or owing to it and its rights in respect of its Receivable Accounts to the Agent (on behalf of the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and/or to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "REFERENCE BANKS" means the principal London offices of Bank of America, N.A., Paribas and The Chase Manhattan Bank or such other bank or banks as may from time to time be agreed between the Principal Borrower and the Agent acting on the instructions of an Instructing Group. "RELEVANT PERIOD" has the meaning given to it in Clause 21 (Financial Condition). "REORGANISATION" means: (a) the transfers, for deferred consideration, by the Principal Borrower of the entire issued share capital of (i) Coditel SA to Cablecom Suisse Romande SA and (ii) Cablecom Media AG to Cablecom Engineering SA; (b) the Initial Mergers; and - 25 - 29 (c) thereafter, the conversion of the Conversion Subsidiaries from joint stock companies ("AG"s) to limited liability companies ("GmbH"s) and the granting of the Reorganisation Share Pledges, in each case in accordance with the Reorganisation Summary. "REORGANISATION SHARE PLEDGES" means: (a) an Austrian law pledge over the shares in Cablecom KabelKommunication GmbH; and (b) Swiss law pledges in the agreed form over the shares in the Conversion Subsidiaries, such pledges being granted in favour of the Finance Parties and the Permitted Facilities Provider as security for the obligations of the Obligors under the Finance Documents and the documentation relating to the Secured Permitted Facilities. "REORGANISATION SUMMARY" means the step plan, in the agreed form, setting out the consents, authorisations and approvals and steps to be taken by the Shareholder and certain members of the Restricted Group to implement the Reorganisation. "REPAYMENT DATE" means, in relation to any Revolving Advance, the last day of the Term thereof. "REPEATED REPRESENTATIONS" means each of the representations set out in Clause 19.1 (Status) to Clause 19.6 (Audited Financial Statements), Clause 19.8 (No Material Adverse Change), Clause 19.11 (Legal and Beneficial Owner), sub-clause 19.16.1 of Clause 19.16 (No NTL Note Defaults), Clause 19.21 (No Material Defaults), Clause 19.23 (Budgets), Clause 19.24 (Other Information) (excluding sub-clause 19.24.1 thereof), Clause 19.27 (Encumbrances and Financial Indebtedness) and Clause 19.30 (Consents and Approvals) (excluding sub-clause 19.30.1 thereof) to Clause 19.33 (Good Title to Assets). "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 nonpayment of any stamp duty or other tax may be void, defences of set-off or counterclaim and similar principles; (b) anything analogous to any of the matters set out in paragraph (a) above under any laws of any applicable jurisdiction; and (c) anything disclosed by any of the Legal Opinions. - 26 - 30 "RESIGNATION NOTICE" means a notice substantially in the form set out in Schedule 9 (Form of Resignation Notice). "RESTRICTED GROUP" means the Principal Borrower, the Principal Borrower's subsidiaries from time to time and, prior to the completion of the Initial Mergers, CC AG. "RESTRICTED OBLIGATIONS" means any obligations of a Swiss Obligor under (a) Clause 24 (Guarantee and Indemnity) and/or the Security Documents and (b) Clause 14 (Taxes), in each case in respect of: (a) a holding company of that Swiss Obligor; and/or (b) a subsidiary of a holding company of that Swiss Obligor, who is not that Swiss Obligor or a subsidiary of that Swiss Obligor. "REVOLVING ADVANCE" means an advance made or to be made by the Banks under the Revolving Facility. "REVOLVING COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, the amount set opposite its name under the heading "REVOLVING COMMITMENT" in Part C of Schedule 1 (The Original Parties). "REVOLVING FACILITY" means the Swiss Franc revolving loan facility granted to the Borrowers in this Agreement. "REVOLVING LOAN" means, at any time, the aggregate principal amount of the outstanding Revolving Advances at such time. "REVOLVING TERMINATION DATE" means 30 June 2003. "ROLLOVER ADVANCE" means a Revolving Advance which is used to refinance a maturing Revolving Advance and which is the same amount as such maturing Revolving Advance and is to be drawn on the day such maturing Revolving Advance is to be repaid. "SECOND LOAN AGREEMENT" means the loan agreement, in the agreed form, entered into between NTL SPV Inc. as lender and BV1 as borrower, setting out the terms on which the indebtedness owed by BV1 in respect of the Second Sale and Purchase Agreement remains outstanding. "SECOND SALE AND PURCHASE AGREEMENT" means the share sale and purchase agreement, in the agreed form, entered into in relation to the Hivedown, between NTL SPV Inc. as seller and BV1 as buyer of part of NTL SPV Inc.'s interest in CC AG and its entire interest in the Principal Borrower, the consideration payable by BV1 being represented by the B Debt. - 27 - 31 "SECURED PERMITTED FACILITIES" means any bank facilities (if any) made available by the Permitted Facilities Provider to members of the Restricted Group pursuant to documentation in the agreed form. "SECURITY" means the security from time to time constituted by or pursuant to the Security Documents and the guarantees provided hereunder. "SECURITY DOCUMENTS" means each of the following documents in agreed form delivered to the Agent in accordance with either Clause 2.3 (Conditions Precedent) or Clause 22.30 (The Reorganisation and Mortgages): (a) the Share Pledges; (b) the Receivables and Receivables Accounts Assignment; (c) the Subordinated NTL CV1 Debt Pledge; (d) the Acquisition Agreement Assignment; (e) the Mortgages; and (f) the Intra-Group Loan Assignments, together with any other document entered into by any member of the Group creating or evidencing an Encumbrance granted in favour of the Agent or, as the case may be, the Finance Parties for all or any part of the obligations of the Obligors or any of them under any of the Finance Documents and/or granted in favour of the Permitted Facilities Provider for all or any part of the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "SECURITY PARTIES" means the Finance Parties and the Permitted Facilities Provider. "SECURITY PROCEEDS" means all receipts or recoveries by the Agent (or by any of the Finance Parties or by the Permitted Facilities Provider) pursuant to, or upon enforcement of, the Security and all other monies which are by the terms of any of the Finance Documents to be applied in accordance with Clause 30.7 (Application of Security Proceeds), after deducting (to the extent not already deducted or retained prior to such receipt or recovery by the Agent or, as the case may be, any other Security Party): (a) all sums which are by law or contract payable to any receiver of the assets subject to the Security; (b) all sums which the Agent is required by the terms of any of the Security Documents to pay to any other person before distributing any such receipts or recoveries to any of the Security Parties and/or discharging any of the obligations secured by the Security Documents; and (c) all sums which the Agent is by law required to pay to any person in priority to the Security Parties. - 28 - 32 "SENIOR DEBT" has the meaning given to it in Clause 21 (Financial Condition). "SHARE PLEDGES" means the Initial Share Pledges and, following the Reorganisation, the Reorganisation Share Pledges. "SUBORDINATED NTL CV1 DEBT" means the indebtedness owed by the Principal Borrower to NTL CV1 in respect of the A Debt and the C Debt, such indebtedness being subordinated by the Subordination Deed and pledged by the Subordinated NTL CV1 Debt Pledge. "SUBORDINATED NTL CV1 DEBT PLEDGE" means the pledge agreement in the agreed form between NTL SPV LLC (as the general partner of NTL CV1) and the Agent (on behalf of the Finance Parties), pursuant to which NTL CV1 pledges its rights in respect of the Subordinated NTL CV1 Debt to the Finance Parties as security for the obligations of the Obligors under the Finance Documents. "SUBORDINATED FUNDING" means: (a) the subscription by the Shareholder or any member of the NTL Inc. Holding Group, for new equity capital of either the Principal Borrower or, prior to the completion of the Initial Mergers, CC AG; (b) the Subordinated NTL CV1 Debt; and (c) any Additional Subordinated Debt. "SUBORDINATION DEED" means the subordination deed in the agreed form between the Agent (for itself and for and on behalf of the other Finance Parties) and NTL SPV LLC (as the general partner of NTL CV1), pursuant to which the Subordinated NTL CV1 Debt is subordinated to the Principal Borrower's obligations under the Finance Documents and any documentation relating to the Secured Permitted Facilities. "SWISS OBLIGOR" means an Obligor incorporated under the laws of Switzerland. "SYNDICATION DATE" means the earlier of (i) the day specified by the Arrangers, after having given five Business Days' prior notice to the Shareholder, as the day on which primary syndication of the Facilities is completed and (ii) 30 June 2000. "TELECOMMUNICATION ACT" means the Swiss Telecommunications Act ("Fernmeldegesetz FMG") of 30 April 1997, together with all of the ordinances implementing such. "TERM" means, save as otherwise provided herein, in relation to any Revolving Advance, the period for which such Revolving Advance is borrowed, as specified in the Notice of Drawdown relating thereto. "TERM ADVANCE" means an Original Term Advance or a Term-Out Advance. - 29 - 33 "TERM COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, the amount set opposite its name under the heading "TERM COMMITMENT" in Part C of Schedule 1 (The Original Parties). "TERM FACILITIES" means the Original Term Facility and the Term-Out Facility. "TERM-OUT ADVANCE" means an advance (as from time to time reduced by repayment) under the Term-Out Facility arising from the conversion of Revolving Advances outstanding on the Revolving Termination Date. "TERM-OUT FACILITY" means the Revolving Facility as converted into a Swiss Franc term loan facility in accordance with Clause 11 (Repayment of the Revolving Facility and Term-Out Option). "TERM-OUT LOAN" means, at any time, the aggregate principal amount of outstanding Term-Out Advances at such time. "TERM-OUT REPAYMENT DATE" means each of the dates specified in Clause 11.10 (Term-Out Loan Repayment Instalments) PROVIDED THAT if such date is not a Business Day it shall be deemed to be the next succeeding Business Day. "THIRD LOAN AGREEMENT" means the loan agreement, in the agreed form, entered into between BV1 as lender and the Principal Borrower as borrower, setting out the terms on which the indebtedness owed by the Principal Borrower in respect of the Third Sale and Purchase Agreement remains outstanding. "THIRD SALE AND PURCHASE AGREEMENT" means the share sale and purchase agreement, in the agreed form, entered into in relation to the Hivedown, between BV1 as seller and the Principal Borrower as buyer of Cablecom (Mittelland) AG, the consideration payable by the Principal Borrower being represented by the C Debt. "TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks' Commitments. "TRANSFER CERTIFICATE" means a certificate substantially in the form set out in Schedule 2 (Form of Transfer Certificate) or in such other form as may be agreed between the Principal Borrower and the Agent signed by a Bank and a Transferee under which: (a) such Bank seeks to procure the transfer to such Transferee of all or a part of such Bank's rights, benefits and obligations under the Finance Documents upon and subject to the terms and conditions set out in Clause 34.3 (Assignments and Transfers by Banks); and (b) such Transferee undertakes to perform the obligations it will assume as a result of delivery of such certificate to the Agent as contemplated in Clause 34.5 (Transfers by Banks). "TRANSFER DATE" means, in relation to any Transfer Certificate, the date for the making of the transfer as specified in such Transfer Certificate. - 30 - 34 "TRANSFEREE" means a person to which a Bank seeks to transfer by novation all or part of such Bank's rights, benefits and obligations under the Finance Documents. "TREASURY TRANSACTION" means any currency or interest purchase, cap or collar agreement, forward rate agreements, interest rate or currency future or option contract, foreign exchange or currency purchase or sale agreement, interest rate swap, currency swap or combined interest rate and currency swap agreement and any other similar agreement. "UNPAID SUM" means the unpaid balance of any of the sums referred to in Clause 27.1 (Default Interest Periods). "VENDOR" means Cablecom Holding AG. 1.2 INTERPRETATION Any reference in this Agreement to: the "AGENT", an "ARRANGER", any "HEDGE COUNTERPARTY", the "PERMITTED FACILITIES PROVIDER" or any "BANK" shall be construed so as to include it and any subsequent successors and permitted transferees in accordance with their respective interests; an "AFFILIATE" of a person shall be construed as a reference to a subsidiary of that person or a holding company of that person or any other subsidiary or holding company of that holding company; "AGREED FORM" in relation to any document means a form which is initialled by each of the Agent and the Principal Borrower for the purposes of identification (as such form may be amended from time to time by agreement between such parties) or a document executed on or before the Acquisition Date by the Principal Borrower and the Agent or, if not so executed or initialled, is in form and substance reasonably satisfactory to the Agent; "ASSETS" includes present and future properties, revenues and rights of every description; "CONTINUING", in relation to an Event of Default, shall be construed as a reference to an Event of Default which has not been waived in writing or remedied and, in relation to a Potential Event of Default, one which has not been remedied within the relevant grace period or waived in accordance with the terms hereof; "DISPOSAL" includes any sale, lease, transfer or other disposal; the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of an amount denominated in another currency (the "SECOND CURRENCY") is a reference to the amount of the first currency which could be purchased with the amount of the second currency at the spot rate of exchange quoted by the Agent at or about 11.00 a.m. on such date for the purchase of the first currency with the second currency; - 31 - 35 a "HOLDING COMPANY" of a company or corporation shall be construed as a reference to any company or corporation of which the first-mentioned company or corporation is a subsidiary; "INDEBTEDNESS" shall be construed so as to include any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; a "LAW" shall be construed as any law (including common or customary law), statute, constitution, decree, judgment, treaty, regulation, directive, bye-law, order or any other legislative measure of any government, supranational, local government, statutory or regulatory body or court; a "MONTH" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that: (a) if any such numerically corresponding day is not a Business Day, such period shall end on the immediately succeeding Business Day to occur in that next succeeding calendar month or, if none, it shall end on the immediately preceding Business Day; and (b) if there is no numerically corresponding day in that next succeeding calendar month, that period shall end on the last Business Day in that next succeeding calendar month, (and references to "MONTHS" shall be construed accordingly); a "PERSON" shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing; "REPAY" (or any derivative form thereof) shall, subject to any contrary indication, be construed to include "PREPAY" (or, as the case may be, the corresponding derivative form thereof) and vice versa; a "SUBSIDIARY" of a company or corporation shall be construed as a reference to any company or corporation: (a) which is controlled, directly or indirectly, by the first-mentioned company or corporation; (b) more than half the issued share capital of which is beneficially owned, directly or indirectly, by the first-mentioned company or corporation; or (c) which is a subsidiary of another subsidiary of the first-mentioned company or corporation - 32 - 36 and, for these purposes, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body; a "SUCCESSOR" shall be construed so as to include an assignee or successor in title of such party and any person who under the laws of its jurisdiction of incorporation or domicile has assumed the rights and obligations of such party under this Agreement or to which, under such laws, such rights and obligations have been transferred; "TAX" shall be construed so as to include any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); "VAT" shall be construed as a reference to value added tax including any similar tax which may be imposed in place thereof from time to time; a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be construed as a reference to any company or corporation which has no other members except that other company or corporation and that other company's or corporation's wholly-owned subsidiaries or persons acting on behalf of that other company or corporation or its wholly-owned subsidiaries; and the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors. 1.3 CURRENCY SYMBOLS 1.3.1 "CHF" and "SWISS FRANCS" denote lawful currency of Switzerland. 1.3.2 "EURO" means the single currency of the European Union as constituted by the treaty on European Union and as referred to in EMU Legislation and "EURO UNIT" means the currency unit of the euro as defined in the EMU Legislation. 1.4 AGREEMENTS AND STATUTES Any reference in this Agreement to: 1.4.1 this Agreement or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, varied, novated or supplemented; and 1.4.2 a statute or treaty shall be construed as a reference to such statute or treaty as the same may have been, or may from time to time be, amended or, in the case of a statute, re-enacted. - 33 - 37 1.5 HEADINGS Clause and Schedule headings are for ease of reference only. 1.6 TIME Any reference in this Agreement to a time of day shall, unless a contrary indication appears, be a reference to London time. 1.7 THIRD PARTY RIGHTS A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. 2. THE FACILITIES 2.1 GRANT OF THE FACILITIES The Banks grant to the Borrowers, upon the terms and subject to the conditions hereof: 2.1.1 a Swiss Franc term loan facility in an aggregate amount of CHF2,700,000,000; and 2.1.2 a Swiss Franc revolving loan facility in an aggregate amount of CHF1,400,000,000 (such facility being convertible into the Term-Out Facility). 2.2 PURPOSE AND APPLICATION The Facilities are intended for the following purposes: 2.2.1 the Original Term Facility is intended (a) to finance the acquisition by the Principal Borrower of that part of the Cablecom Business not acquired by NTL SPV Inc. and transferred to the Shareholder and the Principal Borrower pursuant to the Hivedown, (b) to refinance the existing indebtedness (other than Permitted Financial Indebtedness) of the Borrowers and (c) to finance, in an amount of up to CHF30,000,000, working capital of the Borrowers; 2.2.2 the Revolving Facility is intended to finance operating expenses, working capital and other capital expenditure of the Borrowers and for the Borrowers' general corporate financing requirements; and 2.2.3 the Term-Out Facility is intended to refinance Revolving Advances outstanding on the Revolving Termination Date, and, accordingly, each Borrower shall apply all amounts raised by it hereunder in or towards satisfaction of the consideration for such acquisition, refinancings, operating expenses, working capital requirements, capital expenditure or (as the case may be) its general corporate financing requirements and none of the Finance Parties shall be obliged to concern themselves with such application. 2.3 CONDITIONS PRECEDENT Save as the Banks may otherwise agree, none of the Borrowers may deliver any Notice of Drawdown unless the Agent has confirmed to the Principal Borrower and the Banks - 34 - 38 that it has received all of the documents and other evidence listed in Schedule 3 (Conditions Precedent) and that each is, in form and substance, satisfactory to the Agent. The Agent shall notify the Principal Borrower and the Banks promptly upon being so satisfied. 2.4 BANKS' OBLIGATIONS SEVERAL The obligations of each Bank are several and the failure by a Bank to perform its obligations hereunder shall not affect the obligations of an Obligor towards any other party hereto nor shall any other party be liable for the failure by such Bank to perform its obligations hereunder. 2.5 BANKS' RIGHTS SEVERAL The rights of each Bank are several and any debt arising hereunder at any time from an Obligor to any of the other parties hereto shall be a separate and independent debt. Each such party shall be entitled to protect and enforce its individual rights arising out of this Agreement independently of any other party (so that it shall not be necessary for any party hereto to be joined as an additional party in any proceedings for this purpose). 3. UTILISATION OF THE ORIGINAL TERM FACILITY 3.1 DRAWDOWN CONDITIONS FOR ORIGINAL TERM ADVANCES An Original Term Advance will be made by the Banks to a Borrower if: 3.1.1 during the Notice Period, or such other period as the Agent (acting on the instructions of all of the Banks) may agree, the Agent has received a completed Notice of Drawdown from such Borrower; 3.1.2 the proposed date for the making of such Original Term Advance is a Business Day within the Original Term Availability Period; 3.1.3 the proposed amount of such Original Term Advance is (a) (if less than the Available Term Facility) an amount equal to or greater than CHF50,000,000 (or such lesser amount as the Principal Borrower and the Agent may agree in respect of an Original Term Advance to be utilised to refinance Existing Indebtedness) or (b) equal to the amount of the Available Term Facility; 3.1.4 excluding Original Term Advances utilised to refinance Existing Indebtedness (the maximum number of which shall be agreed between the Principal Borrower and the Agent), there would not, immediately after the making of such Original Term Advance, be more than four Original Term Advances outstanding; 3.1.5 neither of the events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause 8.1 (Market Disruption) shall have occurred; and - 35 - 39 3.1.6 on and as of the proposed date for the making of such Original Term Advance: (a) in the case of Original Term Advances made on the Acquisition Date, (i) no Acquisition Event of Default or Acquisition Potential Event of Default is continuing and (ii) the Acquisition Repeated Representations are true in all material respects; or (b) in all other cases, (i) no Event of Default or Potential Event of Default is continuing and (ii) the Repeated Representations are true in all material respects. 3.2 EACH BANK'S PARTICIPATION IN ORIGINAL TERM ADVANCES Each Bank will participate through its Facility Office in each Original Term Advance made pursuant to Clause 3.1 (Drawdown Conditions for Original Term Advances) in the proportion borne by its Available Term Commitment to the Available Term Facility immediately prior to the making of that Original Term Advance. 3.3 REDUCTION OF AVAILABLE TERM COMMITMENT If a Bank's Available Term Commitment is reduced in accordance with the terms hereof after the Agent has received the Notice of Drawdown for an Original Term Advance and such reduction was not taken into account in the Available Term Facility, then the amount of that Original Term Advance shall be reduced accordingly. 4. INTEREST PERIODS FOR ORIGINAL TERM ADVANCES 4.1 ORIGINAL TERM ADVANCE INTEREST PERIODS The period for which an Original Term Advance is outstanding shall be divided into successive periods each of which (other than the first, which shall begin on the day such Original Term Advance is made) shall start on the last day of the preceding such period. 4.2 ORIGINAL TERM ADVANCE INTEREST PERIOD DURATION The duration of each Interest Period in respect of an Original Term Advance shall, save as otherwise provided herein, be one, two, three or six months or such other period as the Agent (acting on the instructions of all of the Banks) may agree, in each case as the Borrower to which such Original Term Advance is made may during the Notice Period, or such other period as the Agent may agree, by written notice to the Agent select (or, as the case may be, request and agree), PROVIDED THAT: 4.2.1 if such Borrower fails to give such notice of its selection in relation to an Interest Period, the duration of that Interest Period shall, subject to subclauses 4.2.2 , 4.2.3 and 4.2.4, be three months; 4.2.2 any Interest Period in respect of an Original Term Advance which begins at the same time as any other Interest Period in respect of an Original Term Advance borrowed by the same Borrower shall end at the same time as that other Interest Period; - 36 - 40 4.2.3 any Interest Period which would otherwise end during the month preceding, or extend beyond, an Original Term Repayment Date shall, if necessary to ensure that sufficient Original Term Advances mature on that Original Term Repayment Date to allow the relevant scheduled repayment of the Original Term Loan to be made, be of such duration that it shall end on that Original Term Repayment Date; and 4.2.4 prior to the Syndication Date, Interest Periods shall be one month or, if less, such duration necessary to end on the Syndication Date or such other period as the Arrangers and the Principal Borrower may agree. 4.3 CONSOLIDATION OF ORIGINAL TERM ADVANCES If two Interest Periods relating to Original Term Advances end at the same time and such Original Term Advances have been made to the same Borrower then, on the last day of those Interest Periods, the Original Term Advances to which they relate shall be consolidated into and treated as a single Original Term Advance. 4.4 DIVISION OF ORIGINAL TERM ADVANCES The Borrower to which an Original Term Advance is made may, by not less than five Business Days' prior written notice to the Agent, direct that such Original Term Advance shall, at the beginning of any Interest Period relating thereto, be divided into (and thereafter, save as otherwise provided herein, treated in all respects as) two or more Original Term Advances in such amounts (in aggregate, equalling the amount of the Original Term Advance being so divided) as shall be specified by such Borrower in such notice, PROVIDED THAT such Borrower shall not be entitled to make such a direction if: 4.4.1 as a result of so doing, there would, excluding Original Term Advances utilised to refinance Existing Indebtedness, be more than four outstanding Original Term Advances; or 4.4.2 any Original Term Advance thereby coming into existence would be of an amount less than CHF50,000,000. 5. PAYMENT AND CALCULATION OF INTEREST ON ORIGINAL TERM ADVANCES 5.1 PAYMENT OF INTEREST On the last day of each Interest Period of an Original Term Advance (and, if the duration of an Interest Period exceeds six months, on the expiry of each period of six months during such Interest Period) the Borrower to whom such Original Term Advance has been made shall pay accrued interest on such Original Term Advance. 5.2 CALCULATION OF INTEREST The rate of interest applicable to an Original Term Advance from time to time during an Interest Period relating thereto shall be the rate per annum which is the sum of: 5.2.1 the Margin at such time; - 37 - 41 5.2.2 the Mandatory Cost Rate; and 5.2.3 LIBOR. 5.3 MARGIN RATCHET From the date of this Agreement until the date 12 months after the Acquisition Date, the Margin will be 2.50 per cent. per annum. Thereafter, in accordance with the provisions of Clause 5.4 (Margin Changes) and subject to Clause 5.5 (Default Margin), the Margin shall be the percentage rate per annum determined by the ratio of Senior Debt to Annualised EBITDA in respect of the most recent Financial Quarter in accordance with the table set out below.
RATIO OF SENIOR DEBT TO ANNUALISED MARGIN EBITDA (PER CENT. PER ANNUM) - ---------------------------------- --------------------- Greater than 6.0:1 2.50 Equal to or less than 6.0:1 but greater than 5.0:1 2.00 Equal to or less than 5.0:1 but greater than 4.0:1 1.75 Equal to or less than 4.0:1 but greater than 3.0:1 1.25 Equal to or less than 3.0:1 0.75
5.4 MARGIN CHANGES Any reduction or increase to the Margin provided for by Clause 5.3 (Margin Ratchet) shall take effect in relation to all existing Advances and future Advances, in each case with effect from the date the Agent receives the Principal Borrower's Compliance Certificate in accordance with Clause 20.4 (Compliance Certificates) for its most recent Financial Quarter. Any change in the Margin applicable to an existing Advance shall only relate to the remainder of the current Interest Period or Term of such an Advance. 5.5 DEFAULT MARGIN The Margin shall be 2.50 per cent. per annum from the date determined by the Agent (acting reasonably) (in writing) as being the date on which an Event of Default or Potential Event of Default has occurred or come into existence until the date specified by the Agent (in writing) as being the date on which it has been demonstrated to its satisfaction (acting reasonably) that such Event of Default or Potential Event of Default is no longer continuing. The Agent shall promptly notify the other parties hereto of any determination that an Event of Default or Potential Event of Default has occurred or exists or, as the case may be, that it has been demonstrated to its reasonable satisfaction that such is no longer continuing. - 38 - 42 6. UTILISATION OF THE REVOLVING FACILITY 6.1 DRAWDOWN CONDITIONS FOR REVOLVING ADVANCES A Revolving Advance will be made by the Banks to a Borrower if: 6.1.1 the Available Term Facility is or will be, at the proposed date for the making of such Revolving Advance, zero; 6.1.2 during the Notice Period the Agent has received a completed Notice of Drawdown from such Borrower; 6.1.3 the proposed date for the making of such Revolving Advance is a Business Day falling one month or more before the Revolving Termination Date; 6.1.4 the proposed date for the making of such Revolving Advance is not less than five Business Days after the date upon which the previous Revolving Advance (if any) was made; 6.1.5 the proposed amount of such Revolving Advance is (a) if less than the Available Revolving Facility an amount equal to or greater than CHF50,000,000 or (b) equal to the amount of the Available Revolving Facility; 6.1.6 there would not, immediately after the making of such Revolving Advance, be more than six Revolving Advances outstanding; 6.1.7 (save in relation to a Rollover Advance) the Principal Borrower provides the Agent with a certificate signed by an Authorised Signatory of the Principal Borrower, confirming (and setting out the calculations enabling such a confirmation to be given) that: (a) in respect of such a proposed Revolving Advance to be made before the consolidated financial statements of the Restricted Group for the Financial Quarter ended on 30 June 2000 have been delivered to the Agent, the ratio of Senior Debt of the Restricted Group to Annualised EBITDA of the Restricted Group will be no greater than 20.00:1 (where Senior Debt is calculated as at the Acquisition Date, immediately following the completion of the Acquisition and adjusted to take any outstanding Advances and the proposed Revolving Advance into account, and Annualised EBITDA is calculated in accordance with paragraph (a) of the definition thereof); (b) in respect of a proposed Revolving Advance to be made after the consolidated financial statements of the Restricted Group for the Financial Quarter ended on 30 June 2000 have been delivered to the Agent, having adjusted the last consolidated financial statements of the Restricted Group delivered to the Agent pursuant to Clause 20.2 (Quarterly Statements) to take the proposed Revolving Advance into account, the ratio of Senior Debt of the Restricted Group to Annualised - 39 - 43 EBITDA of the Restricted Group applicable at the immediately preceding Quarter Date (as specified in sub-clause 21.1.1 of Clause 21 (Financial Condition)) will continue to be satisfied; (c) in respect of a proposed Revolving Advance to be made on or after 30 June 2001, having adjusted the Consolidated Finance Charges of the Restricted Group for the Relevant Period ended on the last Quarter Date to include the interest that would have been payable on the proposed Revolving Advance had it been outstanding throughout such a Relevant Period, the ratio of the Consolidated Finance Charges of the Restricted Group to EBITDA applicable at the immediately preceding Quarter Date (as specified in sub-clause 21.1.2 of Clause 21 (Financial Condition)) will continue to be satisfied; and (d) in respect of such a Revolving Advance to be made on or after 31 March 2003, having made the adjustment to the Consolidated Finance Charges of the Restricted Group referred to in paragraph (c) above for the Relevant Period ended on the last Quarter Date, the ratio of Annualised EBITDA to Consolidated Pro Forma Debt Service applicable at the immediately preceding Quarter Date (as specified in sub-clause 21.1.3 of Clause 21 (Financial Condition)) will continue to be satisfied; 6.1.8 the proposed Term of the Revolving Advance requested is a period of one, two, three or six months or such other period as the Agent (acting on the instructions of all of the Banks) may agree in each case ending on or before the Revolving Termination Date PROVIDED THAT prior to the Syndication Date only periods of one month (or, if less, such duration necessary to ensure that such Term shall end on the Syndication Date) or such other period specified by the Arrangers may be requested; 6.1.9 (save in relation to a Rollover Advance) neither of the events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause 8.1 (Market Disruption) shall have occurred; and 6.1.10 on and as of the proposed date for the making of such Revolving Advance: (a) (save in relation to a Rollover Advance) no Event of Default or Potential Event of Default is continuing; and (b) the Repeated Representations are true in all material respects. 6.2 EACH BANK'S PARTICIPATION IN REVOLVING ADVANCES Each Bank will participate through its Facility Office in each Revolving Advance made pursuant to this Clause 6 in the proportion borne by its Available Revolving Commitment to the Available Revolving Facility immediately prior to the making of that Revolving Advance. - 40 - 44 6.3 REDUCTION OF AVAILABLE REVOLVING COMMITMENT If a Bank's Revolving Commitment is reduced in accordance with the terms hereof after the Agent has received the Notice of Drawdown for a Revolving Advance and such reduction was not taken into account in the Available Revolving Facility, then the amount of that Revolving Advance shall be reduced accordingly. 7. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES 7.1 PAYMENT OF INTEREST On the Repayment Date relating to each Revolving Advance and, if the Term of such Revolving Advance exceeds six months, on the expiry of each period of six months during such Term, the Borrower to whom such Revolving Advance has been made shall pay accrued interest on that Revolving Advance. 7.2 CALCULATION OF INTEREST The rate of interest applicable to a Revolving Advance from time to time during its Term shall be the rate per annum which is the sum of: 7.2.1 the Margin at such time; 7.2.2 the Mandatory Cost Rate; and 7.2.3 LIBOR. 7.3 MARGIN The Margin for Revolving Advances shall be determined in accordance with Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin). 8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES 8.1 MARKET DISRUPTION If, in relation to any Advance: 8.1.1 LIBOR is to be determined by reference to Reference Banks and at or about 11.00 a.m. on the Quotation Date for the relevant Interest Period or Term none or only one of the Reference Banks supplies a rate for the purpose of determining LIBOR for the relevant Interest Period or Term; or 8.1.2 before the close of business in London on the Quotation Date for such Advance the Agent has been notified by a Bank or each of a group of Banks to whom in aggregate fifty per cent. or more of such Advance is owed (or, in the case of an undrawn Advance, if made, would be owed) that the LIBOR rate does not accurately reflect the cost of funding its participation in such Advance, then, the Agent shall notify the Principal Borrower, the relevant Borrower and the Banks of such event and, notwithstanding anything to the contrary in this Agreement, Clause 8.2 (Substitute Interest Period and Interest Rate) shall apply to such Advance (if it is a Term Advance which is already outstanding or a Rollover Advance). If sub- - 41 - 45 clause 8.1.1 or 8.1.2 applies to a proposed Advance (other than a Rollover Advance), such Advance shall not be made. 8.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE If sub-clause 8.1.1 of Clause 8.1 (Market Disruption) applies to an Advance, the duration of the relevant Interest Period or Term shall be one month or, if less, such that it shall end on the next succeeding Original Term Repayment Date (in the case of an Original Term Advance), the next succeeding Term-Out Repayment Date (in the case of a Term-Out Advance) or the Revolving Termination Date (in the case of a Rollover Advance). If either sub-clause 8.1.1 or 8.1.2 of Clause 8.1 (Market Disruption) applies to an Advance, the rate of interest applicable to each Bank's portion of such Advance during the relevant Interest Period or Term shall (subject to any agreement reached pursuant to Clause 8.3 (Alternative Rate)) be the rate per annum which is the sum of: 8.2.1 the Margin at such time; 8.2.2 the Mandatory Cost Rate; and 8.2.3 the rate per annum notified to the Agent by such Bank 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 Bank of funding from whatever sources it may reasonably select its portion of such Advance during such Interest Period or Term. 8.3 ALTERNATIVE RATE If either of those events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause 8.1 (Market Disruption) occurs in relation to an Advance, then if the Agent or the Principal Borrower so requires, the Agent and the Principal Borrower shall enter into negotiations with a view to agreeing a substitute basis (i) for determining the rates of interest from time to time applicable to the Advances and/or (ii) upon which the Advances may be maintained (whether in Swiss Francs or some other currency) thereafter and any such substitute basis that is agreed shall take effect in accordance with its terms and be binding on each party hereto, PROVIDED THAT the Agent may not agree any such substitute basis without the prior consent of each Bank (which is not to be unreasonably withheld). 9. NOTIFICATION 9.1 ADVANCES The Agent shall, no later than the Notification Time before the first day of an Interest Period or Term (or, in respect of Original Term Advances to be made on the Acquisition Date, no later than the Acquisition Date) notify each Bank of: 9.1.1 the Facility that is to be utilised and the name of the Borrower; 9.1.2 the proposed amount of the relevant Advance; - 42 - 46 9.1.3 the proposed length of the relevant Interest Period or Term; and 9.1.4 the aggregate principal amount of the relevant Advance allocated to such Bank pursuant to Clause 3.2 (Each Bank's Participation in Original Term Advances), Clause 6.2 (Each Bank's Participation in Revolving Advances) or Clause 11.3 (Each Bank's Participation in Term-Out Advances). 9.2 INTEREST RATE DETERMINATION The Agent shall promptly notify the relevant Borrower and the Banks of each determination of LIBOR, the Mandatory Cost Rate and the Margin. 9.3 CHANGES TO ADVANCES OR INTEREST RATES The Agent shall promptly notify the relevant Borrower and the Banks of any change to (a) the proposed length of an Interest Period or Term or (b) any interest rate occasioned by the operation of Clause 8 (Market Disruption and Alternative Interest Rates). 10. REPAYMENT OF THE ORIGINAL TERM FACILITY 10.1 ORIGINAL TERM LOAN REPAYMENT INSTALMENTS The Principal Borrower shall procure (and each Borrower which has drawn an Original Term Advance shall repay its share of the Original Term Loan in order to ensure) that the Original Term Loan is repaid in instalments on each Original Term Repayment Date set out in the table below. The amount to be repaid shall be equal to the percentage of the Original Term Loan as at the close of business in London on the last day of the Original Term Availability Period as set out in the table below.
ORIGINAL TERM PERCENTAGE OF ORIGINAL ORIGINAL TERM PERCENTAGE OF ORIGINAL REPAYMENT DATE TERM LOAN (%) REPAYMENT DATE TERM LOAN (%) - -------------- ---------------------- --------------- ---------------------- 31 March 2004 1.0 30 September 2007 4.5 30 June 2004 1.0 31 December 2007 4.5 30 September 2004 1.0 31 March 2008 5.5 31 December 2004 1.0 30 June 2008 5.5 31 March 2005 1.75 30 September 2008 5.5 30 June 2005 1.75 31 December 2008 5.5 30 September 2005 1.75 31 March 2009 6.25 31 December 2005 1.75 30 June 2009 6.25 31 March 2006 3.75 30 September 2009 6.25 30 June 2006 3.75 31 December 2009 6.25 30 September 2006 3.75 31 March 2010 9.0 31 December 2006 3.75 31 March 2007 4.5 30 June 2007 4.5 Total 100%
10.2 SELECTION OF ORIGINAL TERM ADVANCES If, in relation to an Original Term Repayment Date, the aggregate amount of the Original Term Advances exceeds the amount of the Original Term Loan to be repaid, the Principal Borrower (on its own behalf and on behalf of each other Borrower to whom an Original Term Advance has been made) may, by not less than three Business - 43 - 47 Days' prior notice to the Agent, select which of those Original Term Advances will be wholly or partially repaid, PROVIDED THAT: 10.2.1 the Principal Borrower may not make any such selection if, as a result, more than one such Original Term Advance would fall to be partially repaid; and 10.2.2 if the Principal Borrower fails to give such notice, the Agent shall select the Original Term Advances to be wholly or partially repaid 11. REPAYMENT OF THE REVOLVING FACILITY AND TERM-OUT OPTION 11.1 REPAYMENT OF REVOLVING ADVANCES Each Borrower to which a Revolving Advance has been made shall repay the Revolving Advance made to it in full on the Repayment Date relating thereto. 11.2 CONVERSION OF REVOLVING ADVANCES Each Revolving Advance which is not repaid on the Revolving Termination Date shall automatically be converted into a Term-Out Advance under the Term-Out Facility repayable in accordance with Clause 11.10 (Term-Out Loan Repayment Instalments). On the Revolving Termination Date the Available Revolving Commitment of each Bank shall be cancelled and reduced to zero. 11.3 EACH BANK'S PARTICIPATION IN TERM-OUT ADVANCES Each Bank will participate through its Facility Office in each Term-Out Advance in an amount equal to its participation in the Revolving Advance(s) so converted. 11.4 TERM-OUT ADVANCE INTEREST PERIODS The period for which a Term-Out Advance is outstanding shall be divided into successive periods each of which (other than the first, which shall begin on the Revolving Termination Date) shall start on the last day of the preceding such period. 11.5 TERM-OUT ADVANCE INTEREST PERIOD DURATION The duration of each Interest Period in respect of a Term-Out Advance shall, save as otherwise provided herein, be one, two, three or six months or such other period as the Agent (acting on the instructions of all of the Banks) may agree, in each case as the Borrower to which such Term-Out Advance is made may during the Notice Period by written notice to the Agent select (or, as the case may be, request and agree) PROVIDED THAT: 11.5.1 if such Borrower fails to give such notice of its selection in relation to an Interest Period, the duration of that Interest Period shall, subject to subclauses 11.5.2 and 11.5.3, be three months; 11.5.2 any Interest Period which begins at the same time as any other Interest Period and relates to a Term-Out Advance borrowed by the same Borrower shall end at the same time as that other Interest Period; and 11.5.3 any Interest Period which would otherwise end during the month preceding, or extend beyond, a Term-Out Repayment Date shall, if necessary to ensure that - 44 - 48 sufficient Term-Out Advances mature on that Term-Out Repayment Date to allow the relevant scheduled repayment of the Term-Out Loan to be made, be of such duration that it shall end on that Term-Out Repayment Date. 11.6 CONSOLIDATION OF TERM-OUT ADVANCES If two or more Interest Periods relating to Term-Out Advances end at the same time and are made to the same Borrower, then, on the last day of those Interest Periods, the Term-Out Advances to which they relate shall be consolidated into and treated as a single Term-Out Advance. 11.7 DIVISION OF TERM-OUT ADVANCES The Borrower to which a Term-Out Advance is made may, by not less than three Business Day's prior notice to the Agent, direct that such Term-Out Advance shall, at the beginning of any Interest Period relating thereto, be divided into (and thereafter, save as otherwise provided herein, treated in all respects as) two or more Term-Out Advances in such amounts (in aggregate, equalling the amount of the Term-Out Advance being so divided) as shall be specified by such Borrower in such notice, PROVIDED THAT such Borrower shall not be entitled to make such a direction if: 11.7.1 as a result of so doing, there would be more than six outstanding Term-Out Advances; or 11.7.2 any Term-Out Advance thereby coming into existence would be of an amount of less than CHF50,000,000. 11.8 PAYMENT OF INTEREST On the last day of each Interest Period of a Term-Out Advance (and, if the duration of an Interest Period exceeds six months, on the expiry of each period of six months during such Interest Period) the Borrower to whom such Term-Out Advance has been made shall pay accrued interest on such Term-Out Advance. 11.9 CALCULATION OF INTEREST The rate of interest applicable to a Term-Out Advance from time to time during an Interest Period relating thereto shall be the rate per annum which is the sum of: 11.9.1 the Margin at such time; 11.9.2 the Mandatory Cost Rate; and 11.9.3 LIBOR. The Margin for Term-Out Advances shall be determined in accordance with Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin). 11.10 TERM-OUT LOAN REPAYMENT INSTALMENTS The Principal Borrower shall procure (and each Borrower which has drawn a Term-Out Advance shall repay its share of the Term-Out Loan in order to ensure) that the Term-Out Loan is repaid in instalments on each Term-Out Repayment Date set out in the table below. The amount to be repaid shall be equal to the percentage of the Term- - 45 - 49 Out Loan as at the close of business in London on the Revolving Termination Date as set out in the table below.
TERM-OUT REPAYMENT PERCENTAGE OF TERM-OUT TERM-OUT REPAYMENT PERCENTAGE OF TERM-OUT DATE LOAN (%) DATE LOAN (%) - ------------------ ---------------------- ------------------ ---------------------- 31 March 2004 1.0 30 September 2007 4.5 30 June 2004 1.0 31 December 2007 4.5 30 September 2004 1.0 31 March 2008 5.5 31 December 2004 1.0 30 June 2008 5.5 31 March 2005 1.75 30 September 2008 5.5 30 June 2005 1.75 31 December 2008 5.5 30 September 2005 1.75 31 March 2009 6.25 31 December 2005 1.75 30 June 2009 6.25 31 March 2006 3.75 30 September 2009 6.25 30 June 2006 3.75 31 December 2009 6.25 30 September 2006 3.75 31 March 2010 9.0 31 December 2006 3.75 31 March 2007 4.5 30 June 2007 4.5 Total 100%
11.11 SELECTION OF TERM-OUT ADVANCES If, in relation to a Term-Out Repayment Date, the aggregate amount of the Term-Out Advances exceeds the amount of the Term-Out Loan to be repaid, the Principal Borrower (on its own behalf and on behalf of each other Borrower to whom a Term-Out Advance has been made) may, by not less than three Business Days' prior notice to the Agent, select which of those Term-Out Advances will be wholly or partially repaid, provided that: 11.11.1 the Principal Borrower may not make any such selection if, as a result, more than one such Term-Out Advance would fall to be partially repaid; and 11.11.2 if the Principal Borrower fails to give such notice, the Agent shall select the Term-Out Advance to be wholly or partially repaid. 12. CANCELLATION AND PREPAYMENT 12.1 CANCELLATION OF THE ORIGINAL TERM FACILITY The Principal Borrower may, by giving to the Agent not less than five Business Days' prior written notice to that effect, cancel the whole or any part (being an amount equal to or greater than CHF50,000,000) of the Available Term Facility. Any such cancellation shall reduce the Term Commitments of the Banks rateably. 12.2 PREPAYMENT OF THE ORIGINAL TERM LOAN Subject to the provisions of Clause 27.4 (Break Costs), the Borrower to which an Original Term Advance has been made may, if it has given to the Agent not less than five Business Days' prior written notice to that effect, prepay the whole of any Original Term Advance or any part of any Original Term Advance (being an amount equal to or greater than CHF50,000,000) at any time after the last day of the Original Term Availability Period. Any prepayment so made after the last day of the Original Term Availability Period shall reduce pro rata the remaining Original Term Loan repayment - 46 - 50 instalments the Borrowers are obliged to make in accordance with Clause 10.1 (Original Term Loan Repayment Instalments). 12.3 PREPAYMENT OF THE TERM-OUT LOAN Subject to the provisions of Clause 27.4 (Break Costs), the Borrower to which a Term-Out Advance has been made may, if it has given to the Agent not less than five Business Days' prior written notice to that effect, prepay the whole of any Term-Out Advance or any part of any Term-Out Advance (being an amount equal to or greater than CHF50,000,000). Any prepayment so made shall reduce pro rata the remaining Term-Out Loan repayment instalments the Borrowers are obliged to make in accordance with Clause 11.10 (Term-Out Loan Repayment Instalments). 12.4 CANCELLATION OF THE REVOLVING FACILITY The Principal Borrower may, by giving to the Agent not less than five Business Days' prior written notice to that effect, cancel the whole or any part (being an amount equal to or greater than CHF50,000,000) of the Available Revolving Facility. Any such cancellation shall reduce the Available Revolving Commitment and the Revolving Commitment of each Bank rateably. 12.5 PREPAYMENT OF THE REVOLVING LOAN Subject to the provisions of Clause 27.4 (Break Costs), the Borrower to which a Revolving Advance has been made may, by giving to the Agent not less than five Business Days prior written notice to that effect, prepay the whole or any part of a Revolving Advance (being an amount such that such Revolving Advance will be reduced by an amount equal to or greater than CHF50,000,000). 12.6 NOTICE OF CANCELLATION OR PREPAYMENT Any notice of cancellation or prepayment given by a Borrower pursuant to this Clause 12 shall be irrevocable, shall specify the date upon which such cancellation or prepayment is to be made and the amount of such cancellation or prepayment and, in the case of a notice of prepayment, shall oblige the relevant Borrower to make such prepayment on such date. 12.7 REPAYMENT OF A BANK'S SHARE OF THE LOAN If: 12.7.1 any sum payable to any Bank by an Obligor is required to be increased pursuant to Clause 14.1 (Tax Gross-up); or 12.7.2 any Bank claims indemnification from the Obligors under Clause 14.2 (Tax Indemnity), the Agent claims indemnification from the Obligors under Clause 14.2 (Tax Indemnity) in respect of payment received by it and paid by it to a Bank under the Finance Documents or any Bank claims indemnification from the Principal Borrower under Clause 16.1 (Increased Costs); or 12.7.3 any Bank gives notice to the Principal Borrower in accordance with the provisions of Clause 14.6 (Bank Notification), - 47 - 51 the Principal Borrower may, whilst such circumstance continues, give the Agent at least five Business Days' prior written notice (which notice shall be irrevocable) of its intention to procure the repayment of such Bank's share of the Loan. On the last day of each then current Interest Period or Term, or at any other time subject to the provisions of Clause 27.4 (Break Costs), each Borrower to which an Advance has been made shall repay such Bank's portion of the Advance to which such Interest Period or Term relates. Any repayment of an Original Term Advance so made after the last day of the Original Term Availability Period shall reduce pro rata the remaining obligations under Clause 10.1 (Original Term Loan Repayment Instalments). Any repayment of a Term-Out Advance shall reduce pro rata the remaining obligations under Clause 11.10 (Term-Out Loan Repayment Instalments). 12.8 NO FURTHER ADVANCES A Bank for whose account a repayment is to be made under Clause 12.7 (Repayment of a Bank's Share of the Loan) shall not be obliged to participate in the making of Advances on or after the date upon which the Agent receives the Principal Borrower's notice of its intention to procure the repayment of such Bank's share of the Loan, and such Bank's Available Term Commitment and Available Revolving Commitment shall be reduced to zero. 12.9 NO OTHER REPAYMENTS The Borrowers shall not repay all or any part of the Loan except at the times and in the manner expressly provided for in this Agreement. 12.10 NO REBORROWING OF THE TERM FACILITIES None of the Borrowers shall be entitled to reborrow any amount of a Term Facility which is repaid. 13. MANDATORY PREPAYMENT 13.1 MANDATORY PREPAYMENT FROM EXCESS CASH FLOW The Principal Borrower shall ensure that, within ten Business Days of delivery of the most recent annual consolidated financial statements of the Restricted Group pursuant to Clause 20.1 (Annual Statements) (and commencing with the financial statements delivered in respect of the financial year ended 31 December 2003), 50 per cent. of Excess Cash Flow for the financial year to which such financial statements relate is paid to the Agent and applied in repayment of the Loan in accordance with Clause 13.5 (Application of Proceeds), unless the ratio of Senior Debt to EBITDA for that financial year is less than 3.0:1. 13.2 MANDATORY PREPAYMENT FROM ASSET DISPOSALS The Principal Borrower shall ensure that the net proceeds of any disposal of any asset by any member of the Restricted Group, where such a disposal falls within paragraph (f)(A) of the definition of "Permitted Disposals", are paid to the Agent and applied in repayment of the Loan in accordance with Clause 13.5 (Application of Proceeds) unless the Principal Borrower can show to the satisfaction of the Agent (acting reasonably) that: - 48 - 52 13.2.1 such disposal was on arms' length terms and the net proceeds are to be reinvested in similar assets of a comparable or superior quality located in Switzerland or applied towards the Restricted Group's capital expenditure within a period of 365 days from the date of receipt of such net disposal proceeds by the relevant member of the Restricted Group; or 13.2.2 such net disposal proceeds, when aggregated with the net disposal proceeds received by members of the Restricted Group in respect of disposals falling within paragraph f(A) of the definition of "Permitted Disposals" made in the immediately preceding twelve month period (other than (i) disposals in respect of which the net proceeds have been or are to be applied in repayment of the Loan in accordance with Clause 13.5 (Application of Proceeds) or of which the net proceeds have otherwise been applied in repayment of the Loan in accordance with this Agreement and (ii) disposals in respect of which the net proceeds have been applied or are to be applied in accordance with subclause 13.2.1), do not exceed CHF15,000,000 or its equivalent. The Principal Borrower shall procure that, where the aggregate of the net proceeds from disposals falling within sub-clause 13.2.1 exceed CHF15,000,000, the net proceeds in excess thereof are deposited in the Escrow Account. The member of the Restricted Group that disposed of the relevant assets shall be entitled, during the 365 day period commencing with the receipt of such proceeds of disposal into the Escrow Account, to withdraw sums from the Escrow Account only to the extent that it is reasonably able to demonstrate that such sums will be reinvested or applied in accordance with the provisions of sub-clause 13.2.1. Any sums not so withdrawn during such 365 day period shall thereafter be paid to the Agent and applied in repayment of the Loan in accordance with Clause 13.5 (Application of Proceeds). 13.3 MANDATORY PREPAYMENT FROM ACQUISITION RECOVERY PROCEEDS The Principal Borrower and Shareholder shall ensure that Acquisition Recovery Proceeds received by the Shareholder or any member of the Restricted Group, above an aggregate minimum threshold of Acquisition Recovery Proceeds of CHF20,000,000 (the "MINIMUM THRESHOLD"), are paid to the Agent and applied in repayment of the Loan in accordance with Clause 13.5 (Application of Proceeds) unless the Principal Borrower can show to the satisfaction of the Agent (acting reasonably) that: 13.3.1 the first CHF130,000,000 aggregate amount of Acquisition Recovery Proceeds received above the Minimum Threshold have been, or will promptly upon receipt be, deposited in the Escrow Account in accordance with the provisions of Clause 13.4 (Payment of Acquisition Recovery Proceeds into Escrow Account); and 13.3.2 all Acquisition Recovery Proceeds falling within sub-clause 13.3.1 are to be applied towards an Acquisition Remedy within a period of 365 days from the date of receipt of such Acquisition Recovery Proceeds by the Shareholder or the relevant member of the Restricted Group. - 49 - 53 Any Acquisition Recovery Proceeds received above the first CHF150,000,000 aggregate amount of Acquisition Recovery Proceeds shall be paid to the Agent and applied in repayment of the Loan in accordance with Clause 13.5 (Application of Proceeds). 13.4 PAYMENT OF ACQUISITION RECOVERY PROCEEDS INTO ESCROW ACCOUNT The Principal Borrower and Shareholder shall ensure that any Acquisition Recovery Proceeds to be applied towards an Acquisition Remedy in accordance with sub-clause 13.3.2 of Clause 13.3 (Mandatory Prepayment from Acquisition Recovery Proceeds) are deposited in the Escrow Account. The Shareholder or the relevant member of the Restricted Group that received the Acquisition Recovery Proceeds shall be entitled, during the aforementioned 365 day period, to withdraw sums from the Escrow Account only to the extent that it is reasonably able to demonstrate that such sums will be applied towards an Acquisition Remedy. Any sums not so withdrawn during such 365 day period shall thereafter be paid to the Agent and applied in repayment of the Loan in accordance with Clause 13.5 (Application of Proceeds). 13.5 APPLICATION OF PROCEEDS 13.5.1 Any amounts paid to the Agent in accordance with Clause 13.1 (Mandatory Prepayment from Excess Cash Flow) to Clause 13.4 (Payment of Acquisition Recovery Proceeds into Escrow Account) shall be retained in the Escrow Account for application on one or more Repayment Dates or the last day of Interest Periods in respect of Original Term Advances or Term-Out Advances, as the case may be, until such time as such amounts have been applied in full in repayment of the Loan in accordance with this Clause 13.5. 13.5.2 Subject to sub-clause 13.5.3 below, any amounts paid to the Agent in accordance with Clause 13.1 (Mandatory Prepayment from Excess Cash Flow) to Clause 13.4 (Payment of Acquisition Recovery Proceeds into Escrow Account) shall, on the dates indicated in sub-clause 13.5.1 above, be applied as follows: (a) prior to the Revolving Termination Date, (i) first, in prepayment of the Original Term Loan (satisfying pro rata the obligations under Clause 10.1 (Original Term Loan Repayment Instalments)) and, if such a prepayment is made prior to the last day of the Original Term Availability Period, together with a corresponding cancellation of the Available Term Facility, (ii) secondly, in prepayment of the Revolving Loan (and a corresponding cancellation of the Available Revolving Facility), in an amount equal to the balance not applied in accordance with (i) above and (iii) thirdly, if any excess remains thereafter, in payment of such excess to the relevant member of the Group and in cancellation of the remaining Available Revolving Facility by an equal amount, in each case in accordance with the provisions of Clause 12 (Cancellation and Prepayment); and - 50 - 54 (b) after the Revolving Termination Date, (i) first, in prepayment of the Original Term Loan (satisfying pro rata the obligations under Clause 10.1 (Original Term Loan Repayment Instalments)), (ii) secondly, in prepayment of the Term-Out Loan (satisfying pro rata the obligations under Clause 11.10 (Term-Out Loan Repayment Instalments)) and (iii) thirdly, if any excess remains thereafter, in payment of such excess to the relevant member of the Group. 13.5.3 If the application of such amounts received by the Agent would at any time amount to an unlawful distribution by a member of the Restricted Group to its shareholders and such amounts cannot otherwise be lent by the member of the Restricted Group entitled to such amounts to sufficient Borrowers to allow the requirements of this Clause 13 to be satisfied, then the Agent will retain any monies which cannot be applied in accordance with this Clause 13 in the Escrow Account until such time that those monies can be so applied or all amounts outstanding under the Finance Documents have been repaid in full. 13.6 MANDATORY PREPAYMENT DUE TO CHANGE IN CONTROL 13.6.1 If any person, or group of persons acting in concert, which does not at the date hereof have control of the Parent or, after the acquisition of the Parent by NTL Holdings Inc., of NTL Holdings Inc. acquires control of the Parent or, after the aforementioned acquisition, of NTL Holdings Inc.: (a) the Principal Borrower shall give notice of that event to the Agent promptly upon becoming aware thereof; (b) if the Agent (acting on the instructions of an Instructing Group) gives notice to such effect, the Available Term Commitment (if any) and the Available Revolving Commitment (if any) of each Bank shall immediately be cancelled and reduced to zero; and (c) if the Agent (acting on the instructions of an Instructing Group) gives notice to such effect, the Loan shall become immediately due and payable and shall be repaid by the relevant Borrowers together with accrued interest and all other amounts payable by the Borrowers under the Finance Documents within seven days of the date of such notice. 13.6.2 For the purpose of this Clause 13.6: "CONTROL" means: (a) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: (i) cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Parent or, as the case may be, NTL Holdings Inc.; or - 51 - 55 (ii) appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent or, as the case may be, NTL Holdings Inc.; or (iii) give directions with respect to the operating and financial policies of the Parent or, as the case may be, NTL Holdings Inc. which the directors or other equivalent officers of the Parent or, as the case may be, NTL Holdings Inc. are obliged to comply with; or (b) the holding of more than one-half of the issued share capital of the Parent or, as the case may be, NTL Holdings Inc. (excluding any part of that issued share capital that carries no voting rights or right to participate beyond a specified amount in a distribution of either profits or capital). "ACTING IN CONCERT" means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in the Parent or NTL Holdings Inc., to obtain or consolidate control of the Parent or, as the case may be, NTL Holdings Inc. 13.6.3 This Clause 13.6 will not apply, and the Available Commitments will not be cancelled and the Loan will not become due and payable, in the event that France Telecom S.A. or any of its affiliates acquires control of either the Parent or, after the acquisition of the Parent by NTL Holdings Inc., of NTL Holdings Inc. 14. TAXES 14.1 TAX GROSS-UP All payments to be made by an Obligor to any Bank under the Finance Documents shall be made free and clear of and without deduction for or on account of tax unless such Obligor is required to make such a payment subject to the deduction or withholding of tax, in which case the sum payable by such Obligor (in respect of which such deduction or withholding is required to be made) shall, subject to Clause 24.10 (Swiss Withholding Tax) and Clause 14.5 (Excluded Claims), be increased to the extent necessary to ensure that such Bank receives a sum net of any deduction or withholding equal to the sum which it would have received had no such deduction or withholding been made or required to be made. 14.2 TAX INDEMNITY Without prejudice to Clause 14.1 (Tax Gross-up) but subject to Clause 24.10 (Swiss Withholding Tax), if the Agent or (as a result of the introduction of, or change in or in the interpretation, administration or application of, any law or regulation or order or governmental rule or double taxation agreement or any published practice or concession of any relevant taxing authority after the date hereof) an Obligor or any Bank (a) is required to make any payment of or on account of tax on or in relation to - 52 - 56 any sum received or receivable under the Finance Documents (including any sum deemed for purposes of tax to be received or receivable by the Agent or such Bank whether or not actually received or receivable) or (b) has any liability in respect of any such payment asserted, imposed, levied or assessed against it, the Obligors (jointly and severally) shall, within five Business Days of demand by the Agent, promptly indemnify the Agent or Bank which suffers a loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, PROVIDED THAT this Clause 14.2 shall not apply to: 14.2.1 any tax imposed on and calculated by reference to the net income, profits or gains actually received or receivable by the Agent or such Bank (but, for the avoidance of doubt, not including any sum deemed for purposes of tax to be received or receivable by the Agent or such Bank but not actually receivable) by the jurisdiction in which the Agent or such Bank is incorporated or, if different, the jurisdiction (or jurisdictions) in which the Agent or such Bank is treated as resident for tax purposes; or 14.2.2 any tax imposed on and calculated by reference to the net income, profits or gains of the Facility Office of the Agent or such Bank actually received or receivable by the Agent or such Bank (but, for the avoidance of doubt, not including any sum deemed for purposes of tax to be received or receivable by the Agent or such Bank but not actually receivable) by the jurisdiction in which its Facility Office is located; or 14.2.3 any tax imposed on the Agent, as a result of the failure by a Bank to satisfy on the due date of a payment of interest either of the conditions set out in subclauses 14.3.1 and 14.3.2 of Clause 14.3 (Banks' Tax Status Confirmation); or 14.2.4 any tax imposed on a Bank which would not have arisen but for a payment by such Bank, with reference to this Agreement and in respect of sums received or receivable under the Finance Documents. 14.3 BANKS' TAX STATUS CONFIRMATION Each Bank confirms in favour of the Agent (on the date hereof or, in the case of a Bank which becomes a party hereto pursuant to a transfer or assignment, on the date on which the relevant transfer or assignment becomes effective) that either: 14.3.1 it is not resident for tax purposes in the United Kingdom and is beneficially entitled to its share of the Loan and the interest thereon; or 14.3.2 it is a bank as defined for the purposes of Section 349 of the Income and Corporation Taxes Act 1988 and is beneficially entitled to its share of the Loan and the interest thereon, and each Bank shall promptly notify the Agent if there is any change in its position from that set out above. - 53 - 57 14.4 CLAIMS BY BANKS AND THE AGENT A Bank intending to make a claim pursuant to Clause 14.2 (Tax Indemnity) shall notify the Agent of the event giving rise to the claim, whereupon the Agent shall notify the Principal Borrower and the other Borrowers thereof. If the Agent intends to make a claim pursuant to Clause 14.2 (Tax Indemnity) it shall notify the Principal Borrower and the other Borrowers of the event giving rise to the claim. 14.5 EXCLUDED CLAIMS If any Bank is not or ceases to be a Qualifying Lender, no Obligor shall be liable to pay to that Bank under Clause 14.1 (Tax Gross-Up) any amount in respect of taxes levied or imposed in excess of the amount it would have been obliged to pay if that Bank had been or had not ceased to be a Qualifying Lender PROVIDED THAT this Clause 14.5 shall not apply (and each Obligor shall be obliged to comply with its obligations under Clause 14.1 (Tax Gross-Up)) if: 14.5.1 after the date hereof, there shall have been any introduction of, or change in or in the interpretation, administration or application of, any law or regulation or order or governmental rule or double taxation agreement or any published practice or concession of any relevant taxing authority and as a result thereof such Bank ceases to be a Qualifying Lender; or 14.5.2 such Bank is not or ceases to be a Qualifying Lender as a result of the actions of or omission to act by any Obligor; or 14.5.3 the relevant Obligor would be required to make a deduction or withholding in respect of tax irrespective of whether the Bank is or is not a Qualifying Lender. 14.6 BANK NOTIFICATION Each Bank (other than a Bank which became a Bank in accordance with sub-clause 34.7.2 of Clause 34.7 (Qualifying Lenders)) shall, as soon as reasonably practicable after becoming aware that it will cease to be a Qualifying Lender, other than in the circumstances contemplated by Clauses 14.5.1 or 14.5.2 of Clause 14.5 (Excluded Claims) or if the circumstances contemplated by Clause 14.5.3 of Clause 14.5 (Excluded Claims) apply, notify the Principal Borrower thereof. If a Bank gives notice in accordance with this Clause 14.6 and at any time thereafter while the relevant circumstances are continuing the Principal Borrower notifies it (in writing) that it has identified a financial institution acceptable to it and willing to participate in the Facilities, then such Bank shall (as requested in such notice) transfer all of its rights, benefits and obligations under the Finance Documents to such financial institution PROVIDED THAT, save in the case of a Bank which will cease to be a Qualifying Lender as a result of a decision by such Bank or any holding company thereof (or any deliberate omission which has the same consequence) to cease to carry on the business it carries on and in respect of which it is a Qualifying Lender, the Principal Borrower shall reimburse such Bank for all reasonable costs and expenses incurred in connection - 54 - 58 with such transfer (including any costs payable under Clause 27.4 (Break Costs)), other than any minor costs and expenses of an administrative nature. 15. TAX RECEIPTS 15.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX If, at any time, an Obligor is required by law to make any deduction or withholding from any sum payable by it under the Finance Documents (or if thereafter there is any change in the rates at which or the manner in which such deductions or withholdings are calculated), the Principal Borrower and the Bank to which sum is payable shall promptly upon becoming aware of such a requirement notify the Agent accordingly. If the Agent receives such a notification from a Bank it shall notify the Principal Borrower and the relevant Obligor. 15.2 EVIDENCE OF PAYMENT OF TAX If an Obligor makes any payment under the Finance Documents in respect of which it is required to make any deduction or withholding, it shall pay the full amount required to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall request and, within thirty days of it receiving the same, deliver to the Agent for each Bank an original receipt (or a certified copy thereof) issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld in respect of that Bank's share of such payment. 15.3 TAX CREDIT PAYMENT If an additional payment is made under Clause 14 (Taxes) by an Obligor for the benefit of the Agent or any Bank and the Agent or such Bank, in its sole discretion, determines that it has obtained (and has derived full use and benefit from) a credit against, a relief or remission for, or repayment of, any tax, then, if and to the extent that the Agent or such Bank, in its sole opinion, determines that: 15.3.1 such credit, relief, remission or repayment is in respect of, calculated with reference to or otherwise relates to the additional payment made pursuant to Clause 14 (Taxes); and 15.3.2 its tax affairs for its tax year in respect of which such credit, relief, remission or repayment was obtained have been finally settled, the Agent or such Bank shall, to the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment, pay to such Obligor such amount as the Agent or such Bank shall, in its sole opinion, determine to be the amount which will leave the Agent or such Bank (after such payment) in no worse after-tax position than it would have been in had the additional payment in question not been required to be made by such Obligor. 15.4 TAX CREDIT CLAWBACK If the Agent or any Bank makes any payment to an Obligor pursuant to Clause 15.3 (Tax Credit Payment) and the Agent or such Bank subsequently determines in its sole - 55 - 59 opinion that the credit, relief, remission or repayment in respect of which such payment was made was not available or has been withdrawn or that it was unable to use such credit, relief, remission or repayment in full, such Obligor shall reimburse the Agent or such Bank such amount as the Agent or such Bank determines in its sole opinion is necessary to place it in the same after-tax position as it would have been in if such credit, relief, remission or repayment had been obtained and fully used and retained by the Agent or such Bank. 15.5 TAX AND OTHER AFFAIRS No provision of this Agreement shall interfere with the right of any Finance Party to arrange its tax or any other affairs in whatever manner it thinks fit, oblige any Finance Party to claim any credit, relief, remission or repayment in respect of any payment under Clause 14 (Taxes) in priority to any other credit, relief, remission or repayment available to it nor oblige any Finance Party to disclose any information relating to its tax or other affairs or any computations in respect thereof. 16. INCREASED COSTS 16.1 INCREASED COSTS If, by reason of the occurrence, in each case after the date hereof, of (a) any change in law or in its interpretation or administration and/or (b) compliance with any such new law or with any request or requirement relating to the maintenance of capital or any other request from or requirement of any central bank or other fiscal, monetary or other authority (in each case, where a request or requirement that does not have the force of law is a request or requirement with which financial institutions subject to such request or requirement are generally accustomed to comply): 16.1.1 a Bank or any holding company of such Bank is unable to obtain the rate of return on its capital which it would have been able to obtain but for such Bank's entering into or assuming or maintaining a commitment or performing its obligations under the Finance Documents; 16.1.2 a Bank or any holding company of such Bank incurs a cost as a result of such Bank's entering into or assuming or maintaining a commitment or performing its obligations under the Finance Documents; or 16.1.3 there is any increase in the cost to a Bank or any holding company of such Bank of funding or maintaining such Bank's share of the Advances or any Unpaid Sum, then the Principal Borrower shall, within three Business Days of a demand of the Agent, pay to the Agent for the account of that Bank amounts sufficient to indemnify that Bank or to enable that Bank to indemnify its holding company from and against, as the case may be, (i) such reduction in the rate of return on capital, (ii) such cost or (iii) such increased cost. - 56 - 60 16.2 INCREASED COSTS CLAIMS A Bank intending to make a claim pursuant to Clause 16.1 (Increased Costs) shall notify the Agent of the event giving rise to such claim, whereupon the Agent shall notify the Principal Borrower thereof. 16.3 EXCLUSIONS Notwithstanding the foregoing provisions of this Clause 16, no Bank shall be entitled to make any claim under this Clause 16 in respect of any reduction in the rate of return on its capital, cost, increased cost or liability: 16.3.1 attributable to a deduction or withholding for or on account of tax from a payment under a Finance Document required by law to be made by an Obligor and compensated for pursuant to the provisions of Clause 14.1 (Tax Gross-Up) (or would have been compensated for under Clause 14.1 (Tax Gross-Up) but was not so compensated solely because of Clause 14.5 (Excluded Claims) or Clause 24.10 (Swiss Withholding Tax)); 16.3.2 compensated by Clause 14.2 (Tax Indemnity) (or would have been compensated for under Clause 14.2 (Tax Indemnity) but was not so compensated solely because of one of the exclusions set out in sub-clauses 14.2.1 to 14.2.4 of Clause 14.2 (Tax Indemnity) or Clause 24.10 (Swiss Withholding Tax)); 16.3.3 compensated by the Mandatory Cost Rate; or 16.3.4 attributable to the wilful breach by the relevant Finance Party or its affiliates of any law or regulation. 17. ILLEGALITY If, at any time, it is or will become unlawful for a Bank to make, fund or allow to remain outstanding all or part of its share of the Advances, then that Bank shall, promptly after becoming aware of the same, deliver to the Principal Borrower through the Agent a notice to that effect and: 17.1.1 such Bank shall not thereafter be obliged to participate in the making of any Advances and the amount of its Available Term Commitment (if any) and Available Revolving Commitment (if any) shall be immediately reduced to zero; 17.1.2 if the Agent on behalf of such Bank so requires, each Borrower which has drawn an Advance shall on the last day of the current Interest Period or, as the case may be, Term of each Advance or, if earlier, on the date specified by such Bank (being no earlier than the last day of any applicable grace period permitted by law) repay such Bank's share of any outstanding Advances together with accrued interest thereon and all other amounts owing to such Bank under the Finance Documents; and - 57 - 61 17.1.3 any repayment of Original Term Advances so made after the last day of the Original Term Availability Period shall reduce rateably the remaining obligations under Clause 10.1 (Original Term Loan Repayment Instalments) and any repayment of Term-Out Advances shall reduce rateably the remaining obligations under Clause 11.10 (Term-Out Loan Repayment Instalments). 18. MITIGATION If any Bank gives notice to the Principal Borrower under Clause 14.6 (Bank Notification) or if, in respect of any Bank, circumstances arise which would or would upon the giving of notice result in: 18.1.1 an increase in any sum payable to it or for its account pursuant to Clause 14.1 (Tax Gross-up); 18.1.2 a claim for indemnification pursuant to Clause 14.2 (Tax Indemnity) or Clause 16.1 (Increased Costs); or 18.1.3 the reduction of its Available Commitment to zero or any repayment being required to be made pursuant to Clause 17 (Illegality), then, without in any way limiting, reducing or otherwise qualifying the rights of such Bank or the obligations of the Obligors under any of the Clauses referred to above, such Bank shall (in the case of the circumstances referred to in sub-clauses 18.1.1, 18.1.2 and 18.1.3) promptly upon becoming aware of such circumstances notify the Agent thereof and, in all cases (but without prejudice to the obligations of such Bank under Clause 14.6 (Bank Notification)), in consultation with the Agent and the Principal Borrower and to the extent that it can do so lawfully, take reasonable steps (including a change of location of its Facility Office or the transfer of its rights, benefits and obligations under the Finance Documents to another financial institution acceptable to the Principal Borrower and willing to participate in the Facility) to mitigate the effects of such circumstances, PROVIDED THAT such Bank shall be under no obligation to take any such action if, in the opinion of such Bank, to do so might have any adverse effect upon its business, operations or financial condition (other than any minor costs and expenses of an administrative nature). 19. REPRESENTATIONS Each Obligor (other than the Shareholder) makes the representations and warranties set out in Clause 19.1 (Status) to Clause 19.11 (Legal and Beneficial Owner) and, in addition, the Principal Borrower makes the representations set out in Clause 19.20 (No Winding Up) to Clause 19.33 (Good Title to Assets). The Shareholder makes the representations set out in Clause 19.1 (Status) to Clause 19.4 (Execution of Finance Documents), Clause 19.6 (Audited Financial Statements), Clause 19.7 (Original Financial Statements), Clause 19.9 (Validity and Admissibility in Evidence) to Clause 19.12 (Business Plan), Clause 19.18 (No Trading), Clause 19.22 (Information Memorandum) and Clause 19.27 (Encumbrances and Financial Indebtedness). The Parent makes the representations and warranties set out in Clause 19.1 (Status) to - 58 - 62 Clause 19.4 (Execution of the Finance Documents), Clause 19.8 (Validity and Admissibility in Evidence), Clause 19.13 (Initial Parent Information) to Clause 19.19 (Ownership of the Shareholder), sub-clause 19.24.1 of Clause 19.24 (Other Information) and Clause 19.30 (Consents and Approvals). The Original Obligors and the Parent acknowledge that the Finance Parties have entered into this Agreement in reliance on those representations and warranties. The Finance Parties agree that the representations on the Information Memorandum set out in Clause 19.22 (Information Memorandum) and provided by the Shareholder supersede and replace any representations relating to the Information Memorandum made by the Parent prior to the date of this Agreement. 19.1 STATUS It is a corporation duly organised under the laws of its jurisdiction of incorporation and has the power and all necessary governmental and other consents, approvals, licences and authorisations under any applicable jurisdiction to own its property and assets and to carry on its business as currently conducted, save where the failure to have such consents, approvals, licences and authorisations could not reasonably be expected to have a Material Adverse Effect. 19.2 GOVERNING LAW AND JUDGMENTS In any proceedings taken in its jurisdiction of incorporation in relation to the Finance Documents to which it is a party, the choice of English law as the governing law of this Agreement and the choice of English, Swiss, Dutch or, as the case may be, Austrian law as the governing law of certain other of the Finance Documents to which it is a party and any judgment obtained in England, Switzerland, The Netherlands or, as the case may be, Austria will (subject to the Reservations) be recognised and enforced. 19.3 BINDING OBLIGATIONS The obligations expressed to be assumed by it in the Finance Documents to which it is a party are legal and valid obligations and (subject to the Reservations) binding on it and enforceable against it in accordance with the terms thereof. 19.4 EXECUTION OF THE FINANCE DOCUMENTS Its execution of the Finance Documents to which it is a party and, if applicable, the Acquisition Documents to which it is a party and its exercise of its rights and performance of its obligations thereunder do not and will not: 19.4.1 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 in a manner that could reasonably be expected to have a Material Adverse Effect; 19.4.2 conflict with its constitutive documents; or 19.4.3 conflict with any applicable law. - 59 - 63 It has the power to enter into and perform its obligations under the Finance Documents to which it is a party and, if applicable, the Acquisition Documents to which it is a party and all corporate and other action required to authorise the execution of such Finance Documents and Acquisition Documents and the performance of its obligations thereunder has been duly taken. No limit on its powers will be exceeded as a result of the borrowings, granting of security or giving of guarantees contemplated by the Finance Documents to which it is a party. 19.5 NO MATERIAL PROCEEDINGS No action or administrative proceeding of or before any court, arbitrator or agency (including, but not limited to, investigative proceedings) which could reasonably be expected to have a Material Adverse Effect has been started or threatened against it or its assets. 19.6 AUDITED FINANCIAL STATEMENTS Its most recent audited financial statements (consolidated in the case of the Shareholder and the Principal Borrower) delivered to the Agent in accordance with Clause 20 (Financial Information): 19.6.1 were prepared in accordance with accounting principles generally accepted in its jurisdiction of incorporation and consistently applied; 19.6.2 disclose all material liabilities (contingent or otherwise) and all material unrealised or anticipated losses of such Obligor, any member of the Restricted Group or, as the case may be, any member of the Group; and 19.6.3 save as disclosed therein, give a true and fair view of the financial condition and operations of such Obligor, the Restricted Group or, as the case may be, the Group during the relevant financial year. 19.7 ORIGINAL FINANCIAL STATEMENTS Its financial statements (referred to in paragraphs (b) and (c) of the definition of Original Financial Statements) and, in the case of the Shareholder, the financial statements of the Cablecom Business (referred to in paragraph (a) of the definition of Original Financial Statements), to the best of its knowledge and belief (having made all reasonable efforts to make due and careful enquiry): 19.7.1 were prepared in accordance with accounting principles generally accepted in Switzerland and consistently applied; 19.7.2 disclose all material liabilities (contingent or otherwise) and all material unrealised or anticipated losses of it and, in the case of the Shareholder, the Cablecom Business; and 19.7.3 save as disclosed therein, give a true and fair view of the financial condition and operations of it and, in the case of the Shareholder, the Cablecom Business during the period to which such financial statements relate. - 60 - 64 19.8 NO MATERIAL ADVERSE CHANGE Since the date as at which its most recent audited financial statements (consolidated, in the case of the Principal Borrower) were stated to be prepared, there has been no change in its business or financial condition or, in the case of the Principal Borrower, in the business or financial condition of any member of the Restricted Group or of the Restricted Group taken as a whole which, in each case, could reasonably be expected to have a Material Adverse Effect. 19.9 VALIDITY AND ADMISSIBILITY IN EVIDENCE All acts, conditions and things required to be done, fulfilled and performed in order: 19.9.1 to enable it lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in the Finance Documents to which it is a party; 19.9.2 to ensure that the obligations expressed to be assumed by it in the Finance Documents to which it is a party are legal, valid and (subject to the Reservations) binding and enforceable; and 19.9.3 subject to the Reservations, to make the Finance Documents admissible in evidence in its jurisdiction of incorporation, have been (or will be, no later than the latest time allowed by applicable law or procedure) done, fulfilled and performed. 19.10 NO FILING OR STAMP TAXES Under the laws of its jurisdiction of incorporation in force at the date hereof, it is not necessary that the Finance Documents to which it is a 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 such Finance Documents, other than fees and duties relating to public deeds and entries in public registries which may be required to be made or paid in respect of the Security Documents. 19.11 LEGAL AND BENEFICIAL OWNER Subject to (a) any Permitted Encumbrances, (b) any security granted under the Security Documents to which it is a party and (c) any disclosures in the Disclosure Letter, it is the absolute legal and, where applicable, beneficial owner of all its material assets, which are subject to any such Security and/or are employed in and necessary for the operation of its business in accordance with the Business Plan. 19.12 BUSINESS PLAN The Business Plan has been prepared using accounting policies, practices and procedures consistent, in all material respects, with those applied in the preparation of the Original Financial Statements. After due and careful consideration, the Shareholder, having made all reasonable efforts to make due and careful enquiries in connection with the Acquisition: - 61 - 65 19.12.1 is not aware of any material inaccuracy as to factual matters relating to the Cablecom Business contained in the Business Plan; 19.12.2 does not (as at the date hereof) regard as unreasonable, or to any material extent, unattainable, any of the forecasts or projections set out in the Business Plan; 19.12.3 believes (having made all reasonable enquiries) the assumptions, upon which the forecasts and projections in relation to the Cablecom Business contained in the Business Plan are based, to be fair and reasonable in all material respects; 19.12.4 is not aware of any facts or matters omitted from the Business Plan or the Original Financial Statements, the omission of which make any statements contained therein misleading in any material respect; and 19.12.5 has made full disclosure of all material facts relating to the Cablecom Business to all the persons responsible for the preparing of the Business Plan. 19.13 INITIAL PARENT INFORMATION 19.13.1 All of the written information (other than the Information Memorandum) supplied by any member of the NTL Inc. Group, any member of the NTL Inc. Holding Group or any of their advisers to the Agent, the Banks or their advisers in connection with the Finance Documents was, to the best of its knowledge and belief (having made all reasonable efforts to make due and careful enquiry), true, complete and accurate in all material respects as at the date such information was supplied (or at such subsequent date, prior to the date of this Agreement, on which such information was revised, replaced or corrected) and is not misleading in any material respect. 19.13.2 The Parent has not knowingly failed to disclose to the Arrangers or the Agent any material facts or circumstances which would be reasonably likely, if disclosed, to affect adversely the decision of a person considering whether or not to provide finance (or finance on the terms hereof) to the Borrowers. 19.14 GROUP STRUCTURE 19.14.1 The Group Structure Chart delivered to the Agent pursuant to Clause 2.3 (Conditions Precedent) and any revised Group Structure Chart delivered to the Agent pursuant to Clause 22.31 (Revised Group Structure) is (in the case all of the information set out therein, other than that relating to paragraph (e) of the definition thereof) true, complete and accurate and (in the case of the information set out therein relating to paragraph (e) of the definition thereof) true, complete and accurate in all material respects, in each case as at the date of its delivery to the Agent. 19.14.2 The Hivedown and all necessary inter-company loans, share transfers, share exchanges and other steps resulting in the final structure set out in the Group Structure Chart have been taken in compliance with all relevant laws and regulations and all requirements of relevant regulatory authorities. - 62 - 66 19.15 NO NTL INC. HOLDING GROUP WINDING-UP No member of the NTL Inc. Holding Group has taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against any member of the NTL Inc. Holding Group for its winding-up, dissolution, administration or re-organisation (whether by voluntary arrangement, scheme of arrangement or otherwise) 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. 19.16 NO NTL NOTE DEFAULTS 19.16.1 No NTL Note issued by any member of the NTL Inc. Holding Group (a) remains as to its principal, capital or nominal amount (including capitalised interest) unpaid when due or within any grace period provided for or otherwise allowed in relation thereto or (b) has been declared to be or has otherwise become due and payable prior to its specified maturity (on account of an event of default (howsoever described)). 19.16.2 No breach of or default under any NTL Note issued by any member of the NTL Inc. Holding Group will occur as a result of the completion of the Acquisition, the Hivedown and the Parent's and the Obligors' entry into the Finance Documents and performance of their obligations thereunder. 19.17 ACQUISITION DOCUMENTS 19.17.1 Save for (a) minor or technical amendments, variations or waivers, (b) amendments, variations or waivers approved in writing by the Agent and (c) disclosures made in the Disclosure Letter, there has been no amendment to, or variation or waiver of, the terms of the Acquisition Documents. 19.17.2 Subject to any disclosures in the Disclosure Letter, it is not aware of any event, fact or circumstance which would constitute a material breach of warranty or misrepresentation or material breach of contract in respect of an Acquisition Document, or otherwise allow it to make any other claim (other than minor claims of a non material nature) against either the Vendor or the Vendor's shareholders. 19.18 NO TRADING Save as contemplated by, or otherwise in connection with, the Finance Documents, the Hivedown and the Acquisition Documents and the transactions contemplated hereby or thereby, the Shareholder has not traded or undertaken any commercial activities of any kind and has no liabilities or obligations (actual or contingent). 19.19 OWNERSHIP OF THE SHAREHOLDER The Shareholder is, on the date hereof, a wholly owned indirect subsidiary of the Parent. - 63 - 67 19.20 NO WINDING-UP Save for a solvent liquidation of a dormant member of the Restricted Group which is not an Obligor, neither the Shareholder nor any member of the Restricted Group has taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against the Shareholder or any member of the Restricted Group for its winding-up, dissolution, administration or re-organisation (whether by voluntary arrangement, scheme of arrangement or otherwise) 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. 19.21 NO MATERIAL DEFAULTS No member of the Restricted Group is in breach of or in default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which could reasonably be expected to have a Material Adverse Effect. 19.22 INFORMATION MEMORANDUM The factual information contained in the Information Memorandum is, to the best of its knowledge and belief (having made all reasonable efforts to make due and careful enquiry), correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made. The financial projections contained therein have been made in good faith and on the basis of assumptions believed by the Shareholder to be reasonable and nothing has occurred since the date of the Information Memorandum that renders the information contained in the Information Memorandum untrue or misleading in any material respect. 19.23 BUDGETS It: 19.23.1 regards (as at the date each Budget is delivered to the Agent) as neither unreasonable, nor to any material extent unattainable, any of the forecasts or projections set out in the latest Budget delivered under Clause 20.5 (Budgets); 19.23.2 believes (having made all reasonable enquiries) the assumptions, upon which the forecasts and projections in relation to the Cablecom Business contained in the latest Budget delivered under Clause 20.5 (Budgets) are based, to be fair and reasonable; and 19.23.3 has, to the best of its knowledge and belief (having made all reasonable efforts to make due and careful enquiry), made full disclosure of all material facts relating to the Cablecom Business to all the persons responsible for the preparing of the latest Budget delivered under Clause 20.5 (Budgets). - 64 - 68 19.24 OTHER INFORMATION All written information (other than the Information Memorandum) supplied: 19.24.1 in the case of the Parent, by the Parent prior to the date of this Agreement; or 19.24.2 in the case of the Principal Borrower, by any member of the Restricted Group, is true, complete and accurate in all material respects as at the date it was given and is not misleading in any material respect. 19.25 ENVIRONMENTAL COMPLIANCE Each member of the Restricted Group has complied in all material respects with all Environmental Law and obtained and maintained any Environmental Permits breach of which or, as the case may be, failure to obtain or maintain which, could reasonably be expected to have a Material Adverse Effect. 19.26 ENVIRONMENTAL CLAIMS No Environmental Claim has been commenced or (to the best of the Principal Borrower's knowledge and belief) is threatened against any member of the Restricted Group where such claim would be reasonably likely, if determined against such member of the Restricted Group, to have a Material Adverse Effect. 19.27 ENCUMBRANCES AND FINANCIAL INDEBTEDNESS 19.27.1 Save (in each case) for Permitted Encumbrances, no Encumbrance exists over all or any of the present or future revenues or assets of it and, in the case of the Principal Borrower, any member of the Restricted Group. 19.27.2 Save (in each case) for Permitted Financial Indebtedness, it has no Financial Indebtedness and, in the case of the Principal Borrower, no member of the Restricted Group has any Financial Indebtedness. 19.28 OWNERSHIP OF THE PRINCIPAL BORROWER The Principal Borrower and, prior to the completion of the Initial Mergers, CC AG are wholly-owned subsidiaries of the Shareholder. 19.29 ORIGINAL GUARANTORS The aggregate EBITDA of the Original Guarantors for the financial year ended 31 December 1999 equals or exceeds 95% of the aggregate EBITDA of the Cablecom Business for that financial year. 19.30 CONSENTS AND APPROVALS 19.30.1 All necessary consents, licences, authorisations and approvals in relation to the transactions constituted by the Acquisition Documents and the Finance Documents have been obtained and, save in each case where failure to obtain the same could not reasonably be expected to have a Material Adverse Effect, all consents, licences (including, without limitation, the Licences), authorisations and other approvals necessary for the conduct of the business of - 65 - 69 the Restricted Group as carried on immediately prior to the Acquisition have been, or when required will be obtained and, to the best of its knowledge and belief, their terms and conditions have been complied with and they have not been and will not be revoked or otherwise terminated. 19.30.2 All Swiss tax consents, tax rulings, authorisations, clearances and approvals either have been or will, to the best of its knowledge and belief, be obtained: (a) to allow the equity contribution of the Principal Borrower and CC AG to the Shareholder to be made without incurring capital duty tax; (b) to allow the income and interest expenses of the members of the Restricted Group to be treated in accordance with the Business Plan; (c) to allow the Initial Mergers to be completed; and (d) confirming compliance with the Swiss thin capitalisation rules 19.31 SECURITY INTEREST 19.31.1 Subject (in each case) to the Reservations, each Security Document creates the security interest which that Security Document purports to create or, if that Security Document purports to evidence a security interest, accurately evidences a security interest which has been validly created and each security interest ranks in priority as specified in the Security Document creating or evidencing that interest. 19.31.2 Subject to the disclosures in the Disclosure Letter, the shares of any Restricted Group member which are subject to an Encumbrance under the Security Documents are fully paid and not subject to any option to purchase or similar rights and the constitutional documents of any such Restricted Group member do not and could not restrict or inhibit (whether absolutely, partly, under a discretionary power or otherwise) any transfer of such shares pursuant to enforcement of the Security Documents. 19.32 INTELLECTUAL PROPERTY It is not aware of any adverse circumstance relating to validity, subsistence or use of any of its or any member of the Restricted Group's Intellectual Property which could reasonably be expected to have a Material Adverse Effect. 19.33 GOOD TITLE TO ASSETS Subject to the disclosures in the Disclosure Letter, each member of the Restricted Group has good title to or valid leases of or other appropriate licence, authorisation or consent to use its assets necessary to carry on its business as presently conducted (including, without limitation and subject to Permitted Disposals, the fibre-optic backbone network, headends, switches and hybrid fibre coax networks identified in the Information Memorandum). - 66 - 70 19.34 REPETITION OF REPRESENTATIONS The Repeated Representations shall be deemed to be repeated by the Parent or, as the case may be, the relevant Obligor by reference to the facts and circumstances then existing on the first day of each Interest Period, on each date on which an Advance is or is to be made and on each date on which a company becomes (or it is proposed that a company becomes) an Additional Obligor, and Clause 19.22 (Information Memorandum) shall be deemed to be made on the date that the Information Memorandum is approved by the Shareholder and (save as otherwise disclosed by the Shareholder, in writing to the Agent, prior to the Syndication Date) on the Syndication Date. 20. FINANCIAL INFORMATION 20.1 ANNUAL STATEMENTS Each Obligor shall as soon as the same become available, but in any event within 120 days after the end of each of its financial years, deliver to the Agent in sufficient copies for the Banks its unconsolidated financial statements (and, in the case of the Principal Borrower, the consolidated financial statements of the Restricted Group and, in the case of the Shareholder, the consolidated financial statements of the Group) for such financial year, audited by an internationally recognised firm of independent auditors licensed to practise in its jurisdiction of incorporation. 20.2 QUARTERLY STATEMENTS 20.2.1 The Principal Borrower shall as soon as the same become available but in any event within 45 days after the end of each Financial Quarter deliver to the Agent in sufficient copies for the Banks the consolidated financial statements of the Restricted Group for such period. 20.2.2 The Principal Borrower shall, together with each set of financial statements delivered under sub-clause 20.2.1 above, deliver to the Agent a certificate signed by an Authorised Signatory of the Principal Borrower identifying, in relation to each Obligor that has (or requires to have) any Intra-Group Loan(s) from other Obligor(s), the maximum aggregate principal amount of such Intra-Group Loans that the relevant borrower Obligor can have outstanding (in relation to a relevant borrower Obligor, its "MAXIMUM INTRA-GROUP LOANS") if (a) that borrower Obligor, together with its direct and indirect holding companies which are Guarantors, are to be able to service in full all of the relevant borrower Obligor's indebtedness under the Facilities and all relevant Intra-Group Loans payable prior to 30 September 2010 out of the projected income (including, if relevant, dividend receipts) of the relevant borrower Obligor and such holding companies and (b) such borrower Obligor is to have sufficient taxable income to ensure full tax deductibility of all interest payable by it under the Facilities. 20.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS Each Obligor shall ensure that each set of financial statements delivered by it pursuant to this Clause 20 is certified by an Authorised Signatory of such Obligor as giving a - 67 - 71 true and fair view of its financial condition (and in the case of the Principal Borrower, the consolidated financial condition of the Restricted Group and, in the case of the Shareholder, the consolidated financial condition of the Group) as at the end of the period to which those financial statements relate and of the results of its (or, as the case may be, the Restricted Group's or the Group's) operations during such period. 20.4 COMPLIANCE CERTIFICATES The Principal Borrower shall ensure that each set of consolidated financial statements delivered by it pursuant to Clause 20.1 (Annual Statements) and Clause 20.2 (Quarterly Statements) is accompanied by a Compliance Certificate signed by two of its Authorised Signatories. 20.5 BUDGETS The Principal Borrower shall, as soon as the same become available, and in any event no later than 30 days prior to the beginning of each of its financial years, deliver to the Agent in sufficient copies for the Banks an annual budget (in a form agreed with the Agent) prepared by reference to each Financial Quarter in respect of such financial year of the Restricted Group including: 20.5.1 forecasts of projected disposals (including timing and amount thereof) on a consolidated basis of the Restricted Group for such financial year; 20.5.2 projected annual profit and loss accounts (including projected turnover and operating costs) and projected balance sheets and cash flow statements, together with the main operating assumptions relating thereto, on a quarterly basis, for such financial year on a consolidated basis for the Restricted Group; 20.5.3 revisions to the projections set out in the Business Plan, together with the main operating assumptions relating thereto, for such financial year until 31 March 2010, based on the financial condition and performance and prospects of the Restricted Group at such time; 20.5.4 projected capital expenditure to be incurred on a quarterly basis for such financial year on a consolidated basis for the Restricted Group; 20.5.5 projected EBIT and EBITDA as at the end of each Financial Quarter in such financial year; and 20.5.6 a qualitative analysis and commentary from the management on its proposed activities for such financial year. The Principal Borrower shall provide the Agent with details of any material changes in the projections delivered under this Clause 20.5 as soon as reasonably practicable after it becomes aware of any such change. 20.6 ACCOUNTANTS' LETTER The Principal Borrower shall, together with each Budget delivered under Clause 20.5 (Budgets), deliver to the Agent a letter from its accountants substantially similar to the - 68 - 72 Accountants' Letter confirming that, based upon the projections set out in such Budget, each Borrower as at the date of such a letter will have: 20.6.1 projected income (including, if relevant, dividend receipts) sufficient to enable it to service, in full, all its indebtedness under the Facilities and any other Permitted Financial Indebtedness of that Borrower; and 20.6.2 sufficient taxable income to ensure full tax deductibility on all interest payments to be made by it under the Facilities, or, to the extent either sub-clause 20.6.1 or 20.6.2 will not be satisfied based upon such projections, identifying any relevant shortfalls and indicating how the Borrowers intend to address those shortfalls. 20.7 OTHER FINANCIAL INFORMATION Each Obligor shall from time to time on the request of the Agent, furnish the Agent with such information about the business, condition (financial or otherwise), operations, performance, properties or prospects of the Restricted Group as the Agent or any Bank (through the Agent) may reasonably require PROVIDED THAT no Obligor shall be under any obligation to supply any information the supply of which it can demonstrate would be contrary to any confidentiality obligation binding on it. 20.8 ACCOUNTING POLICIES Each Obligor shall ensure that each set of financial statements delivered pursuant to this Clause 20 is prepared using accounting policies, practices, procedures and reference period consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any such set of financial statements, the relevant Obligor notifies the Agent that there have been one or more changes in any such accounting policies, practices, procedures or reference period and: 20.8.1 the auditors of such Obligor provide: (a) a description of the changes and the adjustments which would be required to be made to those financial statements in order to cause them to use the accounting policies, practices, procedures and reference period upon which the Original Financial Statements of such Obligor were prepared; and (b) sufficient information, in such detail and format as may be reasonably required by the Agent, to enable the Banks to make an accurate comparison between the financial position indicated by those financial statements and the Original Financial Statements of such Obligor, in which case any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared; or - 69 - 73 20.8.2 the Principal Borrower also notifies the Agent that it is no longer practicable to test compliance with the financial condition set out in Clause 21.1 (Financial Condition) against the financial statements received in which case: (a) the Agent and the Principal Borrower shall enter into negotiations with a view to agreeing alternative financial conditions to replace those contained in Clause 21.1 (Financial Condition) in order to maintain a consistent basis for the financial covenants; and (b) if, after three months commencing on the date of the notice given to the Agent pursuant to this sub-clause 20.8.2, the Agent and the Principal Borrower cannot agree alternative financial conditions which are acceptable to an Instructing Group, the Agent shall refer the matter to such internationally recognised accounting firm as may be agreed between the Principal Borrower and an Instructing Group for determination of the adjustments required to be made to such financial statements or the calculation of such ratios to take account of such change, such determination to be binding on the parties hereto, PROVIDED THAT pending such determination the Principal Borrower shall continue to prepare financial statements and calculate such ratios in accordance with sub-clause 20.8.1 above. 20.9 GENERAL INFORMATION The Principal Borrower shall, as soon as reasonably practicable, furnish the Agent with such general information as it or any member of the Restricted Group is required by law to supply or make available to its (or such member of the Restricted Group's) (a) shareholders (in their capacity as such) or (b) creditors generally or any class thereof. 20.10 LITIGATION AND GOVERNMENT OR REGULATORY ENQUIRY The Shareholder (in respect of itself) and the Principal Borrower (in respect of itself and each other member of the Restricted Group) shall advise the Agent forthwith of the details of: 20.10.1 any litigation, arbitration or administrative proceedings pending or threatened against it or, as the case may be, any other member of the Restricted Group which may result in liability of it or, as the case may be, such other member of the Restricted Group in an amount in excess of CHF2,000,000 (or its equivalent); and 20.10.2 any notice or communication received by it or, as the case may be, any other member of the Restricted Group from, or any actual or potential enquiry, investigation or proceedings commenced by, any government, court or regulatory agency or authority, if such notice, communication, enquiry, investigation or proceedings could reasonably be expected to have a Material Adverse Effect. - 70 - 74 20.11 ACQUISITION INFORMATION The Parent shall from time to time, on the request of the Agent, provide the Agent with any material information in the possession of any member of either the NTL Inc. Holding Group or the Group relating to the Acquisition as the Agent may reasonably request provided that the Parent shall be under no obligation to supply any information the supply of which it can demonstrate would be contrary to any confidentiality obligation binding on it or on any member of the NTL Inc. Holding Group or the Group. 20.12 ORIGINAL PRO-FORMA FINANCIAL STATEMENTS The Principal Borrower shall, within 30 Business Days of the date hereof, deliver to the Agent in sufficient copies for the Banks the financial statements referred to in paragraph (a) of the definition of the Original Financial Statements. 21. FINANCIAL CONDITION 21.1 FINANCIAL CONDITION The Principal Borrower shall ensure that the financial condition of the Restricted Group shall be such that: 21.1.1 Ratio of Senior Debt to Annualised EBITDA The ratio of the Senior Debt of the Restricted Group on each of the Quarter Dates specified in column one below to the Annualised EBITDA of the Restricted Group for the Financial Quarter ended on that date shall be no greater than the ratio set out in column two below corresponding to that date.
- -------------------------------------------------------------------------------------------------- COLUMN ONE COLUMN TWO COLUMN ONE COLUMN TWO QUARTER DATE SENIOR DEBT: ANNUALISED QUARTER DATE SENIOR DEBT: ANNUALISED EBITDA EBITDA - -------------------------------------------------------------------------------------------------- 30 June 2000 20.00:1 30 September 2005 4.50:1 30 September 2000 21.45:1 31 December 2005 4.25:1 31 December 2000 22.25:1 31 March 2006 3.50:1 31 March 2001 19.75:1 30 June 2006 3.00:1 30 June 2001 18.25:1 30 September 2006 3.00:1 30 September 2001 18.25:1 31 December 2006 2.75:1 31 December 2001 18.25:1 31 March 2007 2.50:1 31 March 2002 15.00:1 30 June 2007 2.25:1 30 June 2002 13.00:1 30 September 2007 2.25:1 30 September 2002 13.00:1 31 December 2007 2.00:1 31 December 2002 13.00:1 31 March 2008 2.00:1 31 March 2003 10.50:1 30 June 2008 1.50:1 30 June 2003 8.75:1 30 September 2008 1.50:1 30 September 2003 8.75:1 31 December 2008 1.50:1 31 December 2003 8.75:1 31 March 2009 1.00:1 31 March 2004 7.00:1 30 June 2009 1.00:1 30 June 2004 6.00:1 30 September 2009 1.00:1 30 September 2004 6.00:1 31 December 2009 1.00:1 31 December 2004 6.00:1 31 March 2005 5.00:1 30 June 2005 4.50:1 - --------------------------------------------------------------------------------------------------
- 71 - 75 21.1.2 Total Cash Interest Cover Ratio The ratio of the EBITDA of the Restricted Group for each Relevant Period ended on the Quarter Dates specified in column one below to the Consolidated Finance Charges of the Restricted Group for that Relevant Period shall be equal to or greater than the ratio set out in column two below corresponding to that date.
- ------------------------------------------------------------------------------------------- COLUMN ONE COLUMN TWO COLUMN ONE COLUMN TWO QUARTER DATE EBITDA: QUARTER DATE EBITDA: CONSOLIDATED FINANCE CONSOLIDATED FINANCE CHARGES CHARGES - ------------------------------------------------------------------------------------------- 30 June 2001 1.00:1 30 September 2003 2.10:1 30 September 2001 1.00:1 31 December 2003 2.10:1 31 December 2001 1.00:1 31 March 2004 2.50:1 31 March 2002 1.20:1 30 June 2004 2.75:1 30 June 2002 1.40:1 30 September 2004 3.00:1 30 September 2002 1.40:1 31 December 2004 3.10:1 31 December 2002 1.40:1 31 March 2005 3.50:1 31 March 2003 1.75:1 30 June 2005 3.50:1 30 June 2003 2.10:1 30 September 2005 3.50:1 - ------------------------------------------------------------------------------------------- 31 December 2005 3.50:1 and each Quarter Date thereafter - -------------------------------------------------------------------------------------------
21.1.3 Consolidated Pro-Forma Debt Service Cover Ratio The ratio of the Annualised EBITDA of the Restricted Group for each Financial Quarter ended on each of the Quarter Dates specified in column one below to the Consolidated Pro-Forma Debt Service of the Restricted Group as at that Quarter Date shall be equal to or greater than the ratio set out in column two below corresponding to that date.
- ------------------------------------------------------------------------------------------------ COLUMN ONE COLUMN TWO COLUMN ONE COLUMN TWO QUARTER DATE ANNUALISED EBITDA: QUARTER DATE ANNUALISED EBITDA: PRO-FORMA DEBT SERVICE PRO-FORMA DEBT SERVICE - ------------------------------------------------------------------------------------------------ 31 March 2003 1.45:1 30 September 2006 1.25:1 30 June 2003 1.45:1 31 December 2006 1.25:1 30 September 2003 1.35:1 31 March 2007 1.25:1 31 December 2003 1.20:1 30 June 2007 1.25:1 31 March 2004 1.35:1 30 September 2007 1.25:1 30 June 2004 1.35:1 31 December 2007 1.25:1 30 September 2004 1.35:1 31 March 2008 1.30:1 31 December 2004 1.35:1 30 June 2008 1.30:1 31 March 2005 1.30:1 30 September 2008 1.30:1 30 June 2005 1.30:1 31 December 2008 1.30:1 30 September 2005 1.20:1 31 March 2009 1.20:1 31 December 2005 1.10:1 30 June 2009 1.50:1 31 March 2006 1.20:1 30 September 2009 1.75:1 30 June 2006 1.25:1 31 December 2009 2.00:1 - ------------------------------------------------------------------------------------------------
- 72 - 76 21.2 FINANCIAL DEFINITIONS In this Agreement the following terms have the following meanings. "ANNUALISED EBITDA" means: (a) with respect to any calculations made under sub-clause 6.1.7(a) of Clause 6.1 (Drawdown Conditions for Revolving Advances), the consolidated EBITDA of the Restricted Group for the financial year ended 31 December 1999; (b) with respect to (i) any calculations made under sub-clause 6.1.7(b) of Clause 6.1 (Drawdown Conditions for Revolving Advances) prior to the delivery to the Agent of the consolidated financial statements of the Restricted Group for the Financial Quarter ended 31 September 2000 and (ii) the calculation of the ratio of Senior Debt to Annualised EBITDA on 30 June 2000 under this Clause 21, the consolidated EBITDA of the Restricted Group for the Financial Quarter ended on 30 June 2000, multiplied by four; and (c) with respect to any other Quarter Date, the consolidated EBITDA of the Restricted Group for the Relevant Period ended on such Quarter Date, multiplied by two. "CONSOLIDATED FINANCE CHARGES" means, in respect of each Relevant Period, the aggregate amount of the interest (including the interest element of leasing and hire purchase payments) commission, fees and other periodic finance payments paid or due and payable by any member of the Restricted Group in cash in respect of Financial Indebtedness during such a Relevant Period, (a) including any commission, fees and other finance payments payable by any member of the Restricted Group in cash under any interest rate hedging arrangement; (b) deducting any commission, fees and other finance payments receivable by any member of the Restricted Group under any interest rate hedging instrument permitted by this Agreement; and (c) excluding, for the avoidance of doubt, any capitalised interest in respect of any Subordinated Funding or any other payment in relation to Subordinated Funding which cannot be made due to the subordination of such Subordinated Funding remaining in full force and effect. "CONSOLIDATED PRO-FORMA DEBT SERVICE" means, on any Quarter Date, the aggregate of: (a) save to the extent such will be immediately available for reborrowing, all scheduled repayments of principal in respect of the Facilities over the immediately succeeding twelve month period after such Quarter Date; and - 73 - 77 (b) the Consolidated Finance Charges of the Restricted Group for the Relevant Period ended on such Quarter Date, multiplied by two. "CURRENT ASSETS" means the aggregate of inventory, trade and other receivables of each member of the Restricted Group including sundry debtors (but excluding cash at bank) maturing within twelve months from the date of computation and excluding amounts due from either the Vendor or the Vendor's shareholders in connection with the Acquisition. "CURRENT LIABILITIES" means the aggregate of all liabilities (including trade creditors, accruals and provisions and prepayments) of each member of the Restricted Group falling due within twelve months from the date of computation but excluding consolidated aggregate Indebtedness for Borrowed Money of the Restricted Group falling due within such period and any interest on such Indebtedness for Borrowed Money due in such period and excluding amounts due to the Vendor in connection with the Acquisition. "EBIT" means, in respect of any period, the consolidated net income of the Restricted Group for such period adding back (only to the extent, in each case, deducted in calculating such consolidated net income): (a) any provision on account of taxation; (b) any interest (including capitalised interest), commission, discounts or other fees incurred or payable, received or receivable, by any member of the Restricted Group in respect of Indebtedness for Borrowed Money; (c) any amounts received or paid pursuant to the interest hedging arrangements entered into in respect of the Facilities; and (d) any items treated as exceptional or extraordinary items. "EBITDA" means, in respect of any period, EBIT for such period adding back (only to the extent, in each case, deducted in calculating EBIT): (a) any amount attributable to amortisation of intangible assets (including goodwill); (b) depreciation of tangible assets and capitalised costs and expenses; and (c) amortisation, or the writing off, of transaction expenses in relation to the Acquisition, and deducting any costs and expenses capitalised during such period (other than costs and expenses incurred in constructing or upgrading cable networks in the ordinary course of the Restricted Group's business). - 74 - 78 "EXCESS CASH FLOW" means, for any financial year, Operating Cash Flow for that period LESS (a) Net Debt Service for that period; and (b) voluntary prepayments of the Term Facilities during such period. "FINANCIAL QUARTER" means the period commencing on the day after one Quarter Date and ending on the next Quarter Date. "NET DEBT SERVICE" means, in respect of any financial year, the aggregate of: (a) Consolidated Finance Charges for the two Relevant Periods of that financial year deducting any interest received by any Obligor on any deposit or bank account; and (b) save to the extent such were immediately reborrowed, the aggregate of scheduled and mandatory payments of the principal, capital or nominal amounts of any Indebtedness for Borrowed Money which fell due during that financial year (excluding any such payments which relate to Subordinated Funding where such payments cannot be made due to the subordination of such Subordinated Funding remaining in full force and effect). "OPERATING CASH FLOW" means, in respect of any financial year, EBITDA of the Restricted Group for that financial year after: (a) adding back: (i) any decrease in the amount of Working Capital at the end of such a financial year compared against the Working Capital at the start of such financial year; and (ii) any cash receipt in respect of any exceptional or extraordinary item; and (b) deducting: (i) any amount of capital expenditure actually made by any member of the Restricted Group; (ii) any increase in the amount of Working Capital at the end of such financial year compared against the Working Capital at the start of that financial year; (iii) any amount actually paid or due and payable in respect of taxes on the profits of any member of the Restricted Group; and (iv) any cash payment in respect of any exceptional or extraordinary item, and no amount shall be included or excluded more than once. - 75 - 79 "QUARTER DATE" means 31 March, 30 June, 30 September and 31 December in each year. "RELEVANT PERIOD" means each period of six months ending on a Quarter Date. "SENIOR DEBT" means, at any time (without double counting), the aggregate principal, capital or nominal amounts (including any capitalised interest) of indebtedness of any member of the Restricted Group constituting Indebtedness for Borrowed Money together with any other indebtedness of any member of the Restricted Group constituting Indebtedness for Borrowed Money which is due and payable and has not been paid at such time and in respect of which the grace period (if any) specified in the documentation relating thereto has expired but: (a) excluding such Indebtedness for Borrowed Money of any member of the Restricted Group to another member of the Restricted Group to the extent permitted under this Agreement; and (b) excluding any Indebtedness for Borrowed Money to the extent such is Subordinated Funding. "WORKING CAPITAL" means on any date Current Assets less Current Liabilities. 21.3 FINANCIAL TESTING The financial covenants set out in Clause 21.1 (Financial Condition) shall be tested by reference to each of the financial statements delivered pursuant to Clause 20.2 (Quarterly Statements) and/or each Compliance Certificate delivered pursuant to Clause 20.4 (Compliance Certificates). 21.4 AUDITOR'S VERIFICATION The Agent may, at any time if it has reasonable grounds for believing that the figures prepared by the Principal Borrower are incorrect, inaccurate or incomplete at the Principal Borrower's expense require the auditors of the Restricted Group to verify the figures supplied by the Principal Borrower in connection with: 21.4.1 the financial conditions set out in Clause 21.1 (Financial Condition); or 21.4.2 the financial conditions to be satisfied in order to permit a reduction in the Margin in accordance with Clause 5.3 (Margin Ratchet); or 21.4.3 the financial condition to be satisfied to reduce mandatory prepayments from Excess Cash flow in accordance with Clause 13.1 (Mandatory Prepayment from Excess Cash Flow). The Agent may also, in accordance with this Clause 21.4, request confirmation that any figure in a Compliance Certificate delivered under Clause 20.4 (Compliance Certificates) has been correctly extracted from the relevant financial statements delivered under Clause 20 (Financial Information). - 76 - 80 21.5 ACCOUNTING TERMS All accounting expressions which are not otherwise defined herein shall be construed in accordance with generally accepted accounting principles in Switzerland. 22. COVENANTS 22.1 MAINTENANCE OF LEGAL VALIDITY Each Obligor shall: 22.1.1 do all such things as are necessary to maintain its existence as a legal person save where it shall cease to exist as a legal person pursuant to the implementation of the Reorganisation or an Additional Merger; and 22.1.2 obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of its jurisdiction of incorporation to (a) enable it to lawfully enter into and perform its obligations under the Finance Documents to which it is a party and (b) ensure the legality, validity, admissibility in evidence or (subject to the Reservations) enforceability in its jurisdiction of incorporation of the Finance Documents to which it is a party. 22.2 INSURANCE The Principal Borrower shall procure that each member of the Restricted Group maintains insurances on and in relation to its business and assets with reputable underwriters or insurance companies against such risks and to such extent as is usual for companies carrying on a business such as that carried on by such member of the Restricted Group. 22.3 ENVIRONMENTAL COMPLIANCE The Principal Borrower shall ensure that each member of the Restricted Group shall comply in all material respects with all Environmental Law and obtain and maintain any Environmental Permits, breach of which (or failure to obtain or maintain which) could reasonably be expected to have a Material Adverse Effect. 22.4 ENVIRONMENTAL CLAIMS The Principal Borrower shall inform the Agent in writing as soon as reasonably practicable upon becoming aware of the same if any Environmental Claim has been commenced or (to the best of the Principal Borrower's knowledge and belief) is threatened against any member of the Restricted Group in any case where such claim would be reasonably likely, if determined against such member of the Restricted Group, to have a Material Adverse Effect, or of any facts or circumstances which will or are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Restricted Group in any case where such claim would be reasonably likely, if determined against such member of the Restricted Group, to have a Material Adverse Effect. - 77 - 81 22.5 NOTIFICATION OF EVENTS OF DEFAULT The Principal Borrower shall promptly inform the Agent of the occurrence of any Event of Default or Potential Event of Default and, upon receipt of a written request to that effect from the Agent, confirm to the Agent that, save as previously notified to the Agent or as notified in such confirmation, no Event of Default or Potential Event of Default has occurred. 22.6 CLAIMS PARI PASSU Each Obligor shall ensure that, save for claims preferred by any bankruptcy, insolvency, liquidation or other similar laws of general application: 22.6.1 at all times the claims of the Finance Parties against it under the Finance Documents (other than the Security Documents) to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors; and 22.6.2 at all times the claims of the Finance Parties against it under the Security Documents to which it is a party rank ahead of the claims of all its other creditors (other than (if and to the extent applicable) creditors with the benefit of the Permitted Encumbrances referred to in paragraphs (d), (e), (f), (h), (i), (k) and (l) of the definition of that term) against the assets the subject of the Encumbrances created by such Security Documents. 22.7 CONSENTS AND APPROVALS Each Obligor (other than the Shareholder) shall, and the Principal Borrower shall procure that each member of the Restricted Group shall: 22.7.1 apply for, obtain, preserve, keep in full force and effect and comply in all material respects with the terms and conditions of, all consents, licences (including, without limitation, the Licences), authorisations and other approvals necessary to allow such Obligor or the Restricted Group to conduct its business in accordance with the Business Plan; and 22.7.2 to the extent such Obligor or member of the Restricted Group requires a telecommunication licence under the Telecommunication Act to conduct its business in accordance with the Business Plan, obtain or procure that such a licence is obtained as soon as is reasonably practicable after the date hereof and, in any event, by 30 June 2001. Each Obligor shall, and the Principal Borrower shall procure that each member of the Restricted Group shall, comply with all applicable laws, rules, regulations and orders and obtain and maintain all governmental and regulatory consents, licences, authorisations and approvals the failure to comply with which or the failure to obtain and maintain which could reasonably be expected to have a Material Adverse Effect. 22.8 CONDUCT OF BUSINESS Each Obligor (other than the Shareholder) shall, and the Principal Borrower shall procure that each member of the Restricted Group shall: - 78 - 82 22.8.1 carry on its business, or cause the same to be carried on, in accordance with the terms and conditions of the Licences in all material respects and no Obligor shall, and the Principal Borrower shall procure that no member of the Restricted Group shall knowingly, do, omit to do or suffer to be done, any act whereby any person is entitled or empowered to revoke, materially and adversely amend, suspend, withdraw or terminate any Licence (except in each case where the failure to comply with this sub-clause 22.8.1 could not reasonably be expected to have a Material Adverse Effect); and 22.8.2 save in order to effect the Reorganisation or an Additional Merger, continue to carry on the business that it carries on at the date hereof and not enter into any type of business (other than, for the avoidance of doubt, a business which relates to the operation of a telecommunications and/or cable and/or television and/or telephone network or system or the provision of such services) which would result in a material change in the business of the Restricted Group taken as a whole from the business of the Restricted Group as at the date hereof. 22.9 COMPLIANCE WITH MATERIAL COMMERCIAL CONTRACTS Each Obligor (other than the Shareholder) shall, and the Principal Borrower shall procure that each member of the Restricted Group shall: 22.9.1 comply in all material respects with its obligations under each Material Commercial Contract to which it is party and take all action necessary to ensure the continued validity and enforceability of its rights thereunder; 22.9.2 not amend, vary, novate or supplement any such Material Commercial Contract in any material respect; and 22.9.3 not terminate any such Material Commercial Contract prior to its contractual termination date, if such non-compliance, failure to take action, amendment, variation, novation or supplement, or termination, as the case may be, could reasonably be expected to have a Material Adverse Effect. 22.10 PRESERVATION OF ASSETS Each Obligor (other than the Shareholder) shall, and the Principal Borrower shall procure that each member of the Restricted Group shall, maintain and preserve all of its assets that are necessary and material in the conduct of its business as conducted at the date hereof in good working order and condition (ordinary wear and tear excepted) and shall maintain in all material respects all books and records which are necessary in connection therewith or in connection with the conduct of its business. 22.11 SECURITY 22.11.1 Each Obligor shall, at its own expense, take all such action as the Agent may reasonably require for the purpose of perfecting or protecting the Finance Parties' and the Permitted Facilities Provider's rights under and preserving the security interests intended to be created or evidenced by any of the Finance - 79 - 83 Documents to which it is a party, and following the making of any declaration pursuant to Clause 23.19 (Acceleration and Cancellation) or 23.20 (Advances Due on Demand) for facilitating the realisation of any such security or any part thereof. 22.11.2 Each Obligor (other than the Shareholder) shall, to the extent legally possible and as reasonably required by the Agent (acting on the instructions of an Instructing Group and having regard to the cost and expense involved) from time to time, to the extent practicable create or procure the creation of security over its material assets (to the extent such are not secured by the Security Documents) in favour of the Finance Parties to secure all or any of the obligations of the Obligors under the Finance Documents and (if applicable) in favour of the Permitted Facilities Provider to secure its obligations under any of the documentation relating to the Secured Permitted Facilities. 22.11.3 The Principal Borrower shall procure that each member of the Group who is not an Obligor and who utilises any part of the Secured Permitted Facilities shall, to the extent legally possible and as reasonably required by the Permitted Facilities Provider (having regard to the cost and expense involved), create or procure the creation of security over its material assets in favour of the Permitted Facilities Provider to secure all or any of its obligations in respect of the Secured Permitted Facilities. 22.11.4 Cablecom (Bern) AG shall, as soon as is reasonably practicable and in any event within 75 days after the date hereof, procure that any and all existing assignments over its receivables are discharged and that such receivables are assigned in favour of the Agent (on behalf of the Finance Parties and the Permitted Facilities Provider) on the same terms as the Receivables and Receivables Account Assignment. 22.12 ACCESS The Shareholder and Principal Borrower shall ensure that any one or more representatives, agents and advisers of the Agent and/or any of the Banks will be allowed, on reasonable grounds and with prior notice, to have access to the assets, books, records and premises of the Shareholder and each Restricted Group member and be permitted to inspect the same during normal business hours. 22.13 BANK ACCOUNTS Each Obligor (other than the Shareholder) shall, and the Principal Borrower shall ensure that each member of the Restricted Group shall, pay all sums received by it (whether from customers or otherwise) into a Receivables Account held by it, which is subject to security pursuant to the Security Documents. 22.14 VENDOR WARRANTIES The Parent, Shareholder and the Principal Borrower will, diligently pursue all material claims for breach of contract or warranty by, or misrepresentation by, or indemnity or other claim against the Vendor or, as appropriate, the Vendor's shareholders under or - 80 - 84 in connection with any Acquisition Documents, unless the Agent (acting on the instruction of an Instructing Group) has consented in writing to such claim not being made. 22.15 AMENDMENTS 22.15.1 Neither the Parent, the Shareholder nor the Principal Borrower shall, and the Parent shall procure that no relevant member of the NTL Inc. Holding Group shall, amend, vary, novate, supplement or terminate any of the Acquisition Documents, the documentation relating to the Hivedown, any documentation relating to the Subordinated NTL CV1 Debt or any other Subordinated Funding, the constitutional documents or any other document delivered to the Agent pursuant to Clauses 2.3 (Conditions Precedent) or 35.2 (Borrower Conditions Precedent) or 36.2 (Guarantor Conditions Precedent) or waive any right thereunder other than (a) any amendment, variation or waiver which is of a minor or technical nature and (b) any amendments to such constitutional documents which could not reasonably be expected to have an adverse effect on the rights of the Finance Parties under the Finance Documents. 22.15.2 Neither the Shareholder nor the Principal Borrower shall, and the Principal Borrower shall procure that no member of the Restricted Group shall without the prior written consent of the Agent, amend, vary, novate or supplement any documentation relating to the Secured Permitted Facilities, other than any amendment, variation or waiver which is of a minor or technical nature. 22.16 NEGATIVE PLEDGE No Obligor (other than the Shareholder) shall (and the Principal Borrower shall ensure that no member of the Restricted Group shall) without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets other than a Permitted Encumbrance. 22.17 LOANS AND GUARANTEES No Obligor (other than the Shareholder) shall (and the Principal Borrower shall ensure that no member of the Restricted Group shall) without the prior written consent of an Instructing Group, make any loans, grant any credit or give any guarantee or indemnity (except as required by the Finance Documents) to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of any obligation of any other person other than Permitted Loans and Guarantees. 22.18 FINANCIAL INDEBTEDNESS No Obligor shall, and the Principal Borrower shall procure that no member of the Restricted Group shall, incur, create or permit to subsist or have outstanding any Financial Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness other than, in either case, Permitted Financial Indebtedness. - 81 - 85 22.19 ACQUISITIONS AND INVESTMENTS Other than the Acquisition or Permitted Acquisitions or pursuant to the implementation of the Reorganisation or Additional Mergers no Obligor shall, and the Principal Borrower shall procure that no member of the Restricted Group shall: 22.19.1 purchase, subscribe for or otherwise acquire any shares (or other securities or any interest therein) in, or incorporate, any other company or agree to do any of the foregoing; or 22.19.2 purchase or otherwise acquire any assets (other than in the ordinary course of business), revenues or licences, or (without limitation to any of the foregoing) acquire any business or interest therein or agree to do so; or 22.19.3 form, or enter into, any partnership, consortium, joint venture or other like arrangement or agree to do so. 22.20 DIVIDENDS AND DISTRIBUTIONS 22.20.1 The Principal Borrower shall not (and the Shareholder shall vote its shares in the Principal Borrower accordingly), and the Principal Borrower shall procure that no Restricted Group member shall, pay, make or declare any dividend, return on capital, repayment of capital contributions or other distribution (whether in cash or in kind) or make any distribution of assets or other payment whatsoever in respect of share capital whether directly or indirectly, save for Permitted Distributions. On the conversion of a Conversion Subsidiary in accordance with paragraph (c) of the definition of the Reorganisation, to the extent any such conversion involves a decrease in the share capital of such a Conversion Subsidiary, no dividend, return on capital, repayment of capital contribution or other distribution to the shareholder of the Conversion Subsidiary shall be made. 22.20.2 The Principal Borrower shall not, and shall procure that no Restricted Group member shall, pay any interest or return on principal or repayment of principal or other distribution (in cash or in kind) or make any distribution of assets or other payment whatsoever in respect of any indebtedness which constitutes Subordinated Funding, save for Permitted Distributions. 22.21 DISPOSALS No Obligor shall, and the Principal Borrower shall ensure that no member of the Restricted Group shall, without the prior written consent of an Instructing Group, sell, lease, transfer or otherwise dispose of (including, without limitation, a sale or transfer of an asset where such is or may be leased to or re-acquired or acquired by a member of the Restricted Group), by one or more transactions or series of transactions (whether related or not), the whole or any part of its revenues or its assets (limited, in the case of the Shareholder, to its shareholdings in members of the Restricted Group) other than (a) in the implementation of the Reorganisation or pursuant to an Additional Merger and (b) Permitted Disposals. - 82 - 86 22.22 MERGERS No Obligor shall, and the Principal Borrower shall ensure that no member of the Restricted Group shall merge or consolidate with any other person, enter into any demerger transaction or participate in any other type of corporate reconstruction (including, without limitation, liquidations or dissolutions), unless: 22.22.1 such a merger, consolidation, demerger or reconstruction is entered into (a) in the implementation of the Reorganisation or pursuant to an Additional Merger or (b) as part of a solvent re-organisation of the Restricted Group, the terms of which have been approved in writing by the Agent (acting on the instructions of an Instructing Group); and 22.22.2 in all cases other than the Initial Mergers or an Additional Merger, any Obligor involved in such a re-organisation will (a) each exist as a surviving entity and remain subject to its obligations under the Finance Documents to which it is a party and (b) have freely distributable reserves at least equal to the freely distributable reserves such an Obligor had immediately prior to such a merger, consolidation, demerger or reconstruction. 22.23 GUARANTORS The Principal Borrower shall ensure that at all times, the aggregate EBITDA of the Guarantors (in each case calculated on an unconsolidated basis) for any period of four consecutive Financial Quarters equals or exceeds 95 per cent. of the consolidated EBITDA of the Restricted Group for such period. For the purposes of this Clause 22.23 the aggregate EBITDA of the Guarantors and the consolidated EBITDA of the Restricted Group at any time: (a) prior to 1 July 2000, shall be equal to the aggregate EBITDA of the Guarantors or, as the case may be, the aggregate EBITDA of the Restricted Group for the financial year ended 31 December 1999; (b) between 1 July 2000 and 30 September 2000, shall be equal to the aggregate EBITDA of the Guarantors or, as the case may be, the consolidated EBITDA of the Restricted Group for the Financial Quarter ended on 30 June 2000, multiplied by four; (c) between 1 October 2000 and 31 December 2000, shall be equal to the sum of the aggregate EBITDA of the Guarantors or, as the case may be, the consolidated EBITDA of the Restricted Group for the Financial Quarters ended 30 June 2000 and 30 September 2000, multiplied by two; and (d) on and after 1 January 2001, shall be equal to the sum of the aggregate EBITDA of the Guarantors or, as the case may be, the consolidated EBITDA of the Restricted Group for the immediately preceding four complete Financial Quarters. - 83 - 87 A breach of this Clause 22.23 shall not constitute an Event of Default if (i) one or more subsidiaries of the Principal Borrower become Additional Guarantors (in accordance with Clause 36.1 (Request for Additional Guarantor)), within five Business Days of the earlier of notice by the Agent to the Principal Borrower of the breach and the Principal Borrower becoming aware thereof and (ii) the Agent (acting reasonably) is satisfied that this Clause 22.23 will, as a result of the Additional Guarantors thereby created, be satisfied. 22.24 TREASURY TRANSACTIONS No Obligor (other than the Shareholder) shall, and the Principal Borrower shall procure that no member of the Restricted Group shall, enter into any Treasury Transaction other than Permitted Treasury Transactions. 22.25 SUBORDINATED DEBT The Principal Borrower shall not, and shall procure that no member of the Restricted Group shall: 22.25.1 owe any indebtedness to any member of the NTL Inc. Group or the NTL Inc. Holding Group which does not constitute (a) Subordinated Funding or (b) indebtedness permitted under sub-clause 22.28.3 of Clause 22.28 (Agreements with Related Parties); 22.25.2 unless permitted under the Subordination Deed or other relevant subordination agreement or deed, and this Agreement, pay, prepay or repay or defease, exchange or repurchase any amount under the Subordinated NTL CV1 Debt or any other Subordinated Funding. 22.26 HEDGING The Principal Borrower (and such other Borrowers selected by the Principal Borrower and approved by the Agent) shall, within 180 days of each Advance enter into Hedging Agreements satisfactory to the Agent in order to ensure that the total interest cost in respect of at least 40 per cent. of the Loan is capped by interest rates agreed between the Principal Borrower and the Agent (both acting reasonably), for a minimum period of 4 years from the date on which the first such Hedging Agreement is entered into PROVIDED THAT the Principal Borrower shall not be required to enter into a Hedging Agreement in respect of any Advance if, on the date falling 180 days after the date of such Advance, at least 40 per cent. of the Loan is already so capped. 22.27 SHAREHOLDER The Shareholder shall not carry on any business other than as the holding company of the Principal Borrower (and, prior to the completion of the Initial Mergers, CC AG) and the holder of shares or interests in other persons acquired pursuant to paragraph (a) of the definition of Permitted Acquisitions and shall not: 22.27.1 own any assets other than its shareholding in the Principal Borrower (and, prior to the completion of the Initial Mergers, CC AG) or other shares or assets acquired by it pursuant to a Permitted Acquisition or intra-Group credit - 84 - 88 balances arising from Subordinated Funding and credit balances in bank accounts; and 22.27.2 incur any liabilities of any nature whatsoever other than (a) any Security contemplated pursuant to the terms of this Agreement (b) Financial Indebtedness falling within paragraph (e) of the definition of Permitted Financial Indebtedness, (c) professional fees and administration costs in the ordinary course of business, or (d) any liabilities under the Finance Documents. 22.28 AGREEMENTS WITH RELATED PARTIES The Parent and the Principal Borrower shall ensure that there is no indebtedness outstanding, or any contract or arrangement entered into between (A) any member of the NTL Inc. Group or the NTL Inc. Holding Group and any member of the Restricted Group or (B) any member of the Restricted Group and any other member of the Restricted Group, other than: 22.28.1 the Subordinated NTL CV1 Debt and any other Subordinated Funding; 22.28.2 contracts or arrangements entered into to effect the Reorganisation or any Additional Merger; and 22.28.3 other contracts or arrangements entered into on an arm's length basis in good faith and in the commercial interests of the parties thereto. 22.29 ACCOUNTING REFERENCE DATE The Principal Borrower shall retain, and shall ensure that each member of the Restricted Group retains, 31 December as its accounting reference date and shall not change the duration of any of its financial years. 22.30 THE REORGANISATION AND MORTGAGES 22.30.1 The Parent, the Shareholder, the Principal Borrower and each other relevant Obligor shall procure that the Reorganisation is completed as soon as is reasonably practicable after the date of this Agreement and in any event no later than 30 June 2000. 22.30.2 Subject to the Principal Borrower obtaining appropriate Swiss tax rulings granting a waiver of all or substantially all of the Swiss source taxes which might otherwise be imposed on interest payments under the Facilities, the Principal Borrower and each relevant Obligor shall procure that the Mortgages are entered into, and (to the extent deemed necessary by the Agent's Swiss counsel) all necessary consents are obtained, additional documents provided and filings made, on or about the date on which the Reorganisation Share Pledges are entered into as the final step of the Reorganisation (or, if such Swiss tax rulings are obtained after the completion of the Reorganisation, as soon as is reasonably practicable thereafter). The Principal Borrower shall use its reasonable efforts to obtain such Swiss tax rulings prior to the completion of the Reorganisation. If the tax rulings do not grant a waiver of - 85 - 89 all or substantially all of the Swiss source taxes which might otherwise be imposed on the interest payments under the Facilities, the relevant Obligors shall cease to be under any obligation to enter into the Mortgages. 22.31 REVISED GROUP STRUCTURE If the Principal Borrower becomes aware of any inaccuracies in the Group Structure Chart delivered to the Agent pursuant to Schedule 3 ( Conditions Precedent), which relate to the items referred to in paragraphs (a), (b), (c) or (d) of the definition thereof, it will deliver to the Agent as soon as is reasonably practicable thereafter a revised Group Structure Chart which is true, complete and accurate. 23. EVENTS OF DEFAULT Each of Clause 23.1 (Failure to Pay) to Clause 23.18 (Material Adverse Change) describes circumstances which constitute an Event of Default for the purposes of this Agreement. 23.1 FAILURE TO PAY Any sum due from an Obligor or the Obligors under the Finance Documents is not paid at the time, in the currency and in the manner specified therein unless such failure to pay is caused by administrative or technical error and: 23.1.1 in the case of a payment of principal, payment is made within one Business Day of the due date; 23.1.2 in the case of a payment of interest or commitment commission, payment is made within three Business Days of the due date; or 23.1.3 in the case of a payment of any other amount payable under the Finance Documents, payment is made within five Business Days of the due date. 23.2 MISREPRESENTATION Any representation or statement made or deemed to be made by the Parent or an Obligor in the Finance Documents or in any notice or other document, certificate or statement delivered by it pursuant hereto or thereto or in connection herewith or therewith is or proves to have been incorrect or misleading in any material respect when made or deemed to be made and the circumstances giving rise to such inaccuracy, if capable of remedy or change, are not remedied or do not change, such that the relevant representation or statement would be correct and not misleading if repeated five Business Days after the earlier of (a) it being notified by the Agent to the Parent and the relevant Obligor as having been made inaccurately and (b) the Parent or the relevant Obligor becoming aware of such inaccuracy. 23.3 SPECIFIC COVENANTS The Parent or an Obligor fails duly to perform or comply with any of the obligations expressed to be assumed by it in Clause 20 (Financial Information) or Clause 22 (Covenants). No Event of Default under this Clause 23.3 will occur in relation to: - 86 - 90 23.3.1 Clause 20.1 (Annual Statements) to Clause 20.7 (Other Financial Information), Clause 20.9 (General Information), Clause 20.11 (Acquisition Information), if the failure to comply with such is remedied within five Business Days of the Agent giving notice thereof to the Parent or the relevant Obligor; and 23.3.2 Clause 22 (Covenants), (other than Clause 22.1 (Maintenance of Legal Validity), Clause 22.6 (Claims Pari Passu), Clause 22.8 (Conduct of Business), Clause 22.11 (Security), Clause 22.13 (Bank Accounts), Clause 22.16 (Negative Pledge), Clause 22.17 (Loans and Guarantees), Clause 22.19 (Acquisitions and Investments), Clause 22.20 (Dividends and Distributions), Clause 22.21 (Disposals), Clause 22.22 (Mergers), Clause 22.23 (Guarantors), Clause 22.25 (Subordinated Debt), and Clause 22.28 (Agreements with Related Parties)) if the failure to comply with such is capable of remedy and is remedied within five Business Days of the date on which the relevant member of the Restricted Group or the Principal Borrower became aware of such failure to comply. 23.4 FINANCIAL CONDITION At any time any of the requirements of Clause 21.1 (Financial Condition) is not satisfied. 23.5 OTHER OBLIGATIONS The Parent or an Obligor fails duly to perform or comply with any other obligation expressed to be assumed by it in the Finance Documents and such failure, if capable of remedy, is not remedied within thirty days after the Agent has given notice thereof to the Parent or such Obligor (as the case may be). 23.6 CROSS DEFAULT Any Financial Indebtedness of any member of the Restricted Group is not paid when due, any Financial Indebtedness of the Shareholder or any member of the Restricted Group is declared to be or otherwise becomes due and payable prior to its specified maturity (on account of an event of default (howsoever described)), any commitment for any Financial Indebtedness of any member of the Restricted Group is cancelled or suspended (on account of an event of default (howsoever described)) by a creditor of such member of the Restricted Group or any creditor of any member of the Restricted Group becomes entitled (on account of an event of default (howsoever described)) to declare any Financial Indebtedness of such member of the Restricted Group due and payable prior to its specified maturity, PROVIDED THAT it shall not constitute an Event of Default if: 23.6.1 with respect to all such Financial Indebtedness, other than Financial Indebtedness incurred in the ordinary course of business on usual and customary terms, the aggregate amount thereof (or its equivalent in Swiss Francs) is less than CHF10,000,000; - 87 - 91 23.6.2 with respect to all such Financial Indebtedness incurred in the ordinary course of business on usual and customary terms, the aggregate amount thereof (or its equivalent in Swiss Francs) is less than CHF2,000,000; or 23.6.3 such Financial Indebtedness comprises Subordinated Funding and the subordination relating thereto is in full force and effect at such time. 23.7 INSOLVENCY AND RESCHEDULING The Parent, the Shareholder or any member of the Restricted Group: 23.7.1 is unable to pay its debts as they fall due; 23.7.2 has liabilities (taking into account contingent and prospective liabilities that would be taken into account in the preparation of its annual financial statements) which exceed the value of its assets; 23.7.3 commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness (other than as part of a solvent reorganisation of the Restricted Group, on terms which have been approved in writing by the Agent, acting on the instructions of an Instructing Group); 23.7.4 makes a general assignment for the benefit of or a composition with its creditors; or 23.7.5 has a moratorium declared in respect of any of its indebtedness. 23.8 WINDING-UP The Parent, the Shareholder or any member of the Restricted Group takes any corporate action or other steps are taken or legal proceedings are started for its winding-up, dissolution, administration or re-organisation (whether by way of voluntary arrangement, scheme of arrangement or otherwise) or for the appointment of a liquidator, receiver, administrator, administrative receiver, conservator, custodian, trustee or similar officer of it or of any or all of its revenues and assets PROVIDED THAT it shall not constitute an Event of Default if: 23.8.1 such action, steps or proceedings relate to the Reorganisation or to an Additional Merger or to a solvent liquidation or re-organisation of a member of the Restricted Group which is not an Obligor, or are on terms which have been approved in writing by the Agent, acting on the instructions of an Instructing Group; or 23.8.2 such action, steps or proceedings (a) are frivolous or vexatious, (b) do not relate to the appointment of an administrator (or its equivalent in any other jurisdiction) and (c) are contested in good faith by appropriate legal action and are stayed or discharged within fourteen days of their commencement. - 88 - 92 23.9 EXECUTION OR DISTRESS Any execution or distress is levied against, or an encumbrancer takes possession of, the whole or any part of, the property, undertaking or assets of the Shareholder or any member of the Restricted Group or any event occurs which under the laws of the jurisdiction of incorporation of the Shareholder or, as the case may be, such member of the Restricted Group has a similar or analogous effect where: 23.9.1 the aggregate value of such assets exceeds CHF600,000; and 23.9.2 such execution, distress or possession is not discharged within fourteen days. 23.10 FAILURE TO COMPLY WITH FINAL JUDGMENT The Shareholder or any member of the Restricted Group fails to comply with or pay any sum due from it under any final judgment or any final order made or given by any court of competent jurisdiction. 23.11 GOVERNMENTAL INTERVENTION By or under the authority of any government, (a) the management of any Obligor is wholly or partially displaced or the authority of any Obligor in the conduct of its business is wholly or partially curtailed or (b) all or a majority of the issued shares of any Obligor or the whole or any substantial part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired, in each case where such is not remedied to the satisfaction of the Agent within thirty days of the relevant event occurring. 23.12 OWNERSHIP OF THE RESTRICTED GROUP If: 23.12.1 either the Principal Borrower or, prior to the completion of the Initial Mergers, CC AG ceases to be a wholly-owned subsidiary of the Shareholder; or 23.12.2 the Principal Borrower ceases to own (either directly or indirectly) the percentage of the issued share capital of each of its subsidiaries which is a Guarantor as indicated on the Group Structure Chart, save as a result of the Reorganisation or any Additional Mergers. 23.13 OWNERSHIP OF SHAREHOLDER If: 23.13.1 prior to it or any member of the NTL Inc. Holding Group entering into a Permitted Joint Venture, the Parent ceases (directly or indirectly) to: (a) own 100 per cent. of the issued share capital of the Shareholder; or (b) to have the power to either control the casting of all of the votes that might be cast at a general meeting of the Shareholder or appoint or remove all of the directors or equivalent officers of the Shareholder; or - 89 - 93 23.13.2 after it or any member of the NTL Inc. Holding Group enters into a Permitted Joint Venture, the Parent ceases (directly or indirectly) to: (a) own at least 50 per cent. of the issued share capital of the Shareholder; or (b) to have the power to either control the casting of at least 50 per cent. of the maximum votes that might be cast at a general meeting of the Shareholder or appoint or remove at least half of the directors or equivalent officers of the Shareholder. 23.14 REPUDIATION, SUBORDINATION AND SECURITY If: 23.14.1 the Parent, NTL SPV Inc., NTL CV1 or any Obligor repudiates a Finance Document; or 23.14.2 the security intended to be created by, or the subordination effected under, the Finance Documents is not or ceases to be legal and valid and (except as contemplated by the Reservations or, if capable of remedy, such as is remedied within five Business Days of the earlier of (a) notice of the relevant event by the Agent to the Parent and the Principal Borrower and (b) the date on which the Parent, the Principal Borrower or the relevant Obligor becomes aware of such event) binding and enforceable. 23.15 ILLEGALITY At any time it is or becomes unlawful for the Parent or an Obligor to perform or comply with any or all of its obligations under the Finance Documents to which it is a party or any of the obligations of the Parent or an Obligor under the Finance Documents to which it is a party are not or cease to be legal and valid and (except as contemplated by the Reservations or, if capable of remedy, such as is remedied within five Business Days of the earlier of (a) notice of the relevant event by the Agent to the Parent or, as the case may be, the relevant Obligor and (b) the date on which the Parent or, as the case may be, the relevant Obligor becomes aware of such event) binding and enforceable. 23.16 ADVERSE PROCEEDINGS If any investigation or proceedings are commenced by, any government, court or regulatory agency or authority, which could reasonably be expected to be adversely determined, and if so determined, are reasonably likely to have a Material Adverse Effect. 23.17 SUBORDINATED FUNDING Any person (other than a Finance Party or an Obligor) party to the Subordination Deed or any other agreement or deed approved by the Agent in respect of Subordinated Funding fails to comply with its obligations under the Subordination Deed or such other agreement or deed and (unless an Obligor party to the Subordination Deed or any such other agreement or deed has also so failed to comply) such failure might - 90 - 94 reasonably be expected to have a material adverse effect on the subordination intended to be effected by the Subordination Deed or such other agreement or deed. 23.18 MATERIAL ADVERSE CHANGE Any event or circumstance occurs which has or could reasonably be expected to have a Material Adverse Effect. 23.19 ACCELERATION AND CANCELLATION Upon the occurrence of an Event of Default and at any time thereafter whilst it is continuing, the Agent may (and, if so instructed by an Instructing Group, shall) by notice to the Parent and the Principal Borrower (on its own behalf and on behalf of the other Borrowers): 23.19.1 declare all or any part of the Advances to be immediately due and payable (whereupon the same shall become so payable together with accrued interest thereon and any other sums then owed by the Borrowers under the Finance Documents) or declare all or any part of the Advances to be due and payable on demand of the Agent; and/or 23.19.2 declare that any undrawn portion of the Facilities shall be cancelled, whereupon the same shall be cancelled and the Available Commitment of each Bank shall be reduced to zero; and/or 23.19.3 exercise (on its own behalf and on behalf of the Banks and the Hedge Counterparties) all rights and remedies of a mortgagee or a secured party at such time and (without limitation), subject to the Security Documents and to the extent permitted by applicable law, (a) foreclose on any or all of the assets subject to the Security by any available judicial procedure, (b) take possession of any or all of the assets subject to the Security and the books and records relating thereto, with or without judicial process and/or (c) enter any premises where any assets subject to the Security, or any books and records relating thereto, are located and take possession of and remove the same therefrom. 23.20 ADVANCES DUE ON DEMAND If, pursuant to Clause 23.19 (Acceleration and Cancellation), the Agent declares all or any part of the Advances to be due and payable on demand of the Agent, then, and at any time thereafter, the Agent may (and, if so instructed by an Instructing Group, shall) by notice to the Borrowers: 23.20.1 require repayment of all or such part of the Advances on such date as it may specify in such notice (whereupon the same shall become due and payable on the date specified together with accrued interest thereon and any other sums then owed by the Borrowers under the Finance Documents) or withdraw its declaration with effect from such date as it may specify; and/or 23.20.2 select as the duration of any Interest Period or Term which begins whilst such declaration remains in effect a period of six months or less. - 91 - 95 24. GUARANTEE AND INDEMNITY 24.1 GUARANTEE AND INDEMNITY Subject to Clause 24.9 (Swiss Restrictions) and Clause 24.11 (Recourse to Shareholder), each of the Guarantors irrevocably and unconditionally jointly and severally: 24.1.1 guarantees to each Finance Party the due and punctual observance and performance of all the terms, conditions and covenants on the part of each Borrower contained in the Finance Documents and agrees to pay from time to time on demand any and every sum or sums of money which each Borrower is at any time liable to pay to any Finance Party under or pursuant to the Finance Documents and which has become due and payable but has not been paid at the time such demand is made; and 24.1.2 agrees as a primary obligation to indemnify each Finance Party from time to time on demand from and against any loss incurred by any Finance Party as a result of any of the obligations of any Borrower under or pursuant to the Finance Documents being or becoming void, voidable, unenforceable or ineffective as against such Borrower for any reason whatsoever, whether or not known to any Finance Party or any other person, the amount of such loss being the amount which the person or persons suffering it would otherwise have been entitled to recover from such Borrower. 24.2 ADDITIONAL SECURITY The obligations of each Guarantor herein contained shall be in addition to and independent of every other security which any Finance Party may at any time hold in respect of any of any Obligor's obligations under the Finance Documents. 24.3 CONTINUING OBLIGATIONS The obligations of each Guarantor herein contained shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever and shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the obligations of the Borrowers under the Finance Documents and shall continue in full force and effect until final payment in full of all amounts owing by any Borrowers under the Finance Documents and total satisfaction of all the Borrowers' actual and contingent obligations under the Finance Documents. 24.4 OBLIGATIONS NOT DISCHARGED Neither the obligations of each Guarantor herein contained nor the rights, powers and remedies conferred in respect of each Guarantor upon any Finance Party by the Finance Documents or by law shall be discharged, impaired or otherwise affected by: 24.4.1 the winding-up, dissolution, administration or re-organisation of any Obligor or any other person or any change in its status, function, control or ownership; - 92 - 96 24.4.2 any of the obligations of any Obligor or any other person under the Finance Documents or under any other security taken in respect of any of its obligations under the Finance Documents being or becoming illegal, invalid, unenforceable or ineffective in any respect; 24.4.3 time or other indulgence being granted or agreed to be granted to any Obligor or any other person in respect of its obligations under the Finance Documents or under any such other security; 24.4.4 any amendment to, or any variation, waiver or release of, any obligation of any Obligor or any other person under the Finance Documents or under any such other security; 24.4.5 any failure to take, or fully to take, any security contemplated hereby or otherwise agreed to be taken in respect of any Obligor's obligations under the Finance Documents; 24.4.6 any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of, any security taken in respect of any Obligor's obligations under the Finance Documents; or 24.4.7 any other act, event or omission which, but for this Clause 24.4, might operate to discharge, impair or otherwise affect any of the obligations of each Guarantor herein contained or any of the rights, powers or remedies conferred upon any of the Finance Parties by the Finance Documents or by law. 24.5 SETTLEMENT CONDITIONAL Any settlement or discharge between a Guarantor and any of the Finance Parties shall be conditional upon no security or payment to any Finance Party by an Obligor or any other person on behalf of an Obligor being avoided or reduced by virtue of any laws relating to bankruptcy, insolvency, liquidation or similar laws of general application and, if any such security or payment is so avoided or reduced, each Finance Party shall be entitled to recover the value or amount of such security or payment from such Guarantor subsequently as if such settlement or discharge had not occurred. 24.6 EXERCISE OF RIGHTS No Finance Party shall be obliged before exercising any of the rights, powers or remedies conferred upon them in respect of any Guarantor by the Finance Documents or by law: 24.6.1 to make any demand of any Obligor (save where such demand is expressly required by the terms of the Finance Documents); 24.6.2 to take any action or obtain judgment in any court against any Obligor; 24.6.3 to make or file any claim or proof in a winding-up or dissolution of any Obligor; or - 93 - 97 24.6.4 to enforce or seek to enforce any other security taken in respect of any of the obligations of any Obligor under the Finance Documents. 24.7 DEFERRAL OF GUARANTORS' RIGHTS Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents: 24.7.1 to be indemnified by a Borrower; 24.7.2 to claim any contribution from any other guarantor of the obligations of any Borrower under the Finance Documents; and/or 24.7.3 to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party. 24.8 APPROPRIATIONS Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may: 24.8.1 refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and 24.8.2 hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 24. 24.9 SWISS RESTRICTIONS The Restricted Obligations of (a) each Swiss Obligor under this Clause 24 and the Security Documents to which that Swiss Obligor is a party and (b) each Swiss Obligor under Clause 14 (Taxes) shall at all times be limited to the maximum amount of that Swiss Obligor's profits available for distribution as dividends at any given time (being the balance sheet profits and any reserves made for this purpose, in each case in accordance with article 675(2) and article 671(1) and (2), no. 3, of the Swiss Federal Code of Obligations). 24.10 SWISS WITHHOLDING TAX Each Swiss Obligor shall: 24.10.1 if and to the extent required by applicable law in force at the relevant time: (a) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Tax (withholding tax) at the rate of 35 per cent. (or such - 94 - 98 other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (b) pay any such deduction to the Swiss Federal Tax Administration; and (c) notify (or procure that the Principal Borrower notifies) the Agent that such a deduction has been made in accordance with Clause 15.1 (Notification of Requirement to Deduct Tax) and provide, in accordance with Clause 15.2 (Evidence of Payment of Tax) the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and 24.10.2 to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 14.1 (Tax Gross-up) or indemnify the Finance Parties in accordance with Clause 14.2 (Tax Indemnity) in relation to any payment made by it in respect of Restricted Obligations. 24.11 RECOURSE TO SHAREHOLDER The liability of the Shareholder under this Clause 24 shall at all times be limited to the proceeds of the Security granted by the Shareholder. A Finance Party shall not be entitled to take any further steps to recover from the Shareholder sums due to it under the Finance Documents and any claims the Finance Parties have against the Shareholder shall be extinguished once the Security granted by the Shareholder has been realised and the proceeds applied against sums due by the Shareholder under the Finance Documents. 25. COMMITMENT COMMISSION AND FEES 25.1 COMMITMENT COMMISSION ON THE ORIGINAL TERM FACILITY The Borrowers, acting through the Principal Borrower, shall pay to the Agent for account of each Bank a commitment commission on the amount of such Bank's Available Term Commitment from day to day during the Original Term Availability Period, such commitment commission to be calculated at the rate of 0.75 per cent. per annum and payable in arrear on the last day of each successive period of three months which ends during the Original Term Availability Period and on the last day of the Original Term Availability Period. 25.2 COMMITMENT COMMISSION ON THE REVOLVING FACILITY The Borrowers, acting through the Principal Borrower, shall pay to the Agent for account of each Bank in respect of each Commitment Period (as defined below) a commitment commission calculated at the percentage rate per annum determined pursuant to Clause 25.3 (Rate of Revolving Facility Commitment Commission) on an amount equal to the average daily Available Revolving Commitments during such Commitment Period. 25.3 RATE OF REVOLVING FACILITY COMMITMENT COMMISSION The applicable rate of commitment commission for any Commitment Period in respect of the Revolving Facility shall be determined by reference to the average daily - 95 - 99 utilisation of the Revolving Facility during such Commitment Period expressed as a percentage of the average daily Revolving Commitment during such Commitment Period and in accordance with the following scale:
AVERAGE DAILY UTILISATION AS PERCENTAGE OF AVERAGE DAILY REVOLVING COMMITMENT APPLICABLE RATE OF COMMISSION COMMITMENT Up to and including 50 per cent. 0.75 per cent. Over 50 per cent. 0.50 per cent.
25.4 DEFINITIONS AND AVERAGE CALCULATIONS For the purposes of Clauses 25.2 (Commitment Commission on the Revolving Facility) and Clause 25.3 (Rate of Revolving Facility Commitment Commission): 25.4.1 "COMMITMENT PERIOD" means each successive period of three months during the period beginning on the date hereof and ending on the Revolving Termination Date (except that if the last such period would otherwise extend beyond the Revolving Termination Date it shall be shortened so as to end on that date). 25.4.2 The average daily utilisation of the Revolving Facility during a Commitment Period shall equal the sum of all Revolving Advances made by the Banks and outstanding on each day during such Commitment Period, divided by the number of days in such Commitment Period. 25.4.3 The average daily Revolving Commitments during a Commitment Period shall equal the aggregate of the Revolving Commitments on each day during such Commitment Period divided by the number of days in such Commitment Period. 25.4.4 The average daily Available Revolving Commitments during a Commitment Period shall equal the aggregate of the Available Revolving Commitments on each day during such Commitment Period divided by the number of days in such Commitment Period. 25.5 PAYMENT OF COMMITMENT COMMISSION The Agent shall promptly after the end of each Commitment Period notify the Principal Borrower (on its own behalf and on behalf of the Borrowers) and the Banks of the amounts payable by the Borrowers under Clause 25.2 (Commitment Commission on the Revolving Facility) in respect of such Commitment Period and the Borrowers, acting through the Principal Borrower, shall pay such amount to the Agent for account of the Banks pro rata to each Bank's Revolving Commitment hereunder from time to time during the applicable Commitment Period, within five Business Days of such notification. - 96 - 100 25.6 AGENCY AND OTHER FEES The Parent shall: 25.6.1 pay (or shall procure that the Principal Borrower shall pay) to the Agent for its own account the agency fees specified in the letter dated 16 February 2000 from the Arrangers to the Parent at the times, and in the amounts, specified in such letter; and 25.6.2 pay (or shall procure that the Principal Borrower shall pay) to the Arrangers the fees specified in the letters dated 16 February 2000 from the Arrangers to the Parent (and the attachments thereto) at the times, and in the amounts, specified in such letters. 26. COSTS AND EXPENSES 26.1 PRESERVATION AND ENFORCEMENT OF RIGHTS The Borrowers, acting through the Principal Borrower, shall, from time to time on demand of the Agent, reimburse the Finance Parties for all costs and expenses (including legal fees) on a full indemnity basis together with any VAT thereon incurred in or in connection with the preservation and/or enforcement of any of the rights of the Finance Parties under the Finance Documents and any document referred to in the Finance Documents (including, without limitation, any costs and expenses reasonably incurred in relation to any investigation as to whether or not an Event of Default might have occurred or is likely to occur or any steps necessary or desirable in connection with any proposal for remedying or otherwise resolving an Event of Default or Potential Event of Default). 26.2 STAMP TAXES The Borrowers, acting through the Principal Borrower, shall pay all stamp, registration and other taxes to which the Finance Documents, any other document referred to in the Finance Documents (save as otherwise specified therein) or any judgment given in connection therewith is or at any time may be subject and shall, from time to time on demand of the Agent, indemnify the Finance Parties against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay in paying any such tax. 26.3 AMENDMENT COSTS If an Obligor requests any amendment, waiver or consent then the Borrowers, acting through the Principal Borrower, shall, within five Business Days of demand by the Agent, reimburse the Agent for all costs and expenses (including legal fees) together with any VAT thereon reasonably incurred by it in responding to or complying with such request. 26.4 BANKS' LIABILITIES FOR COSTS If the Borrowers fail to perform any of their obligations under this Clause 26, each Bank shall, in its Proportion, indemnify the Agent against any loss incurred by the Agent as a result of such failure. - 97 - 101 27. DEFAULT INTEREST AND BREAK COSTS 27.1 DEFAULT INTEREST PERIODS If any sum due and payable by an Obligor hereunder is not paid on the due date therefor in accordance with Clause 30 (Payments) or if any sum due and payable by an Obligor under any judgment of any court in connection herewith is not paid on the date of such judgment, the period beginning on such due date or, as the case may be, the date of such judgment and ending on the date upon which the obligation of such Obligor to pay such sum is discharged shall be divided into successive periods, each of which (other than the first) shall start on the last day of the preceding such period and the duration of each of which shall (except as otherwise provided in this Clause 27) be selected by the Agent. 27.2 DEFAULT INTEREST An Unpaid Sum shall bear interest during each Interest Period in respect thereof at the rate per annum which is one per cent. per annum above the percentage rate which would apply if such Unpaid Sum had been an Advance in the amount and currency of such Unpaid Sum and for the same Interest Period, PROVIDED THAT if such Unpaid Sum relates to an Advance which became due and payable on a day other than the last day of an Interest Period or Term relating thereto: 27.2.1 the first Interest Period applicable to such Unpaid Sum shall be of a duration equal to the unexpired portion of the current Interest Period or Term relating to that Advance; and 27.2.2 the percentage rate of interest applicable thereto from time to time during such period shall be that which exceeds by one per cent. the rate which would have been applicable to it had it not so fallen due, save that the Margin shall be, or be deemed to be, 2.50 per cent. per annum. 27.3 PAYMENT OF DEFAULT INTEREST Any interest which shall have accrued under Clause 27.2 (Default Interest) in respect of an Unpaid Sum shall be due and payable and shall be paid by the Obligor owing such Unpaid Sum on the last day of each Interest Period in respect thereof or on such other dates as the Agent may specify by notice to such Obligor. 27.4 BREAK COSTS If any Bank or the Agent on its behalf receives or recovers all or any part of such Bank's share of an Advance or Unpaid Sum otherwise than on the last day of an Interest Period or Term relating thereto, the Principal Borrower shall pay to the Agent within three Business Days of demand for account of such Bank an amount equal to the amount (if any) by which (a) the additional interest which would have been payable on the amount so received or recovered had it been received or recovered on the last day of that Interest Period or Term exceeds (b) the amount of interest which that Bank would have been able to obtain by placing an amount equal to the amount so received or recovered on deposit with a prime bank in London for a period starting on the - 98 - 102 Business Day following the date of such receipt or recovery and ending on the last day of that Interest Period or Term. 28. BORROWERS' INDEMNITIES 28.1 BORROWERS' INDEMNITY The Borrowers, acting through the Principal Borrower, undertake to indemnify: 28.1.1 each Finance Party against any cost, claim, loss, expense (including legal fees) or liability together with any VAT thereon, which it may sustain or incur as a consequence of the occurrence of any Event of Default or any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; 28.1.2 each Bank against any cost or loss it may suffer under Clause 26.4 (Banks' Liabilities for Costs) or Clause 33.6 (Indemnification); and 28.1.3 each Bank against any cost or loss it may suffer or incur as a result of its funding or making arrangements to fund its portion of an Advance requested by any Borrower but not made by reason of the operation of any one or more of the provisions hereof. 28.2 CURRENCY INDEMNITY If any sum (a "SUM") due from an Obligor under the Finance Documents or any order or judgment given or made in relation thereto has to be converted from the currency (the "FIRST CURRENCY") in which such Sum is payable into another currency (the "SECOND CURRENCY") for the purpose of: 28.2.1 making or filing a claim or proof against such Obligor; 28.2.2 obtaining or enforcing an order or judgment, in any court or other tribunal or authority, the Borrowers, acting through the Principal Borrower, shall indemnify each person to whom such Sum is due from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to such person at the time of receipt of such Sum. 29. CURRENCY OF ACCOUNT AND PAYMENT The Swiss Franc is the currency of account and payment for each and every sum at any time due from an Obligor hereunder, PROVIDED THAT: 29.1.1 each payment in respect of costs and expenses shall be made in the currency in which the same were incurred; and 29.1.2 each payment pursuant to Clause 14.2 (Tax Indemnity), Clause 16.1 (Increased Costs) or Clause 28.1 (Borrowers' Indemnity) shall be made in the currency specified by the party claiming thereunder. - 99 - 103 30. PAYMENTS 30.1 NOTIFICATION OF PAYMENTS Without prejudice to the liability of each party hereto promptly to pay each amount owing by it hereunder on the due date therefor, whenever a payment is expected to be made by any of the parties hereto, the Agent shall, at least two Business Days prior to the expected date for such payment, notify all the parties hereto of the amount, currency and timing of such payment and the identity of the party liable to make such payment. 30.2 PAYMENTS TO THE AGENT On each date on which this Agreement requires an amount to be paid by an Obligor or a Bank, such Obligor or, as the case may be, such Bank shall make the same available to the Agent for value on the due date at such time and in such funds and to such account with such bank as the Agent shall (acting reasonably) specify from time to time. 30.3 PAYMENTS BY THE AGENT 30.3.1 Save as otherwise provided herein, each payment received by the Agent pursuant to Clause 30.2 (Payments to the Agent) shall: (a) in the case of a payment received for the account of a Borrower, be made available by the Agent to such Borrower by application: (i) first, in or towards payment the same day of any amount then due from such Borrower hereunder to the person from whom the amount was so received; and (ii) secondly, in or towards payment the same day to the account of such Borrower with such bank in Zurich as such Borrower shall have previously notified to the Agent for this purpose; and (b) in the case of any other payment, be made available by the Agent to the person entitled to receive such payment in accordance with this Agreement (in the case of a Bank, for the account of its Facility Office) for value the same day by transfer to such account of such person with such bank in Zurich as such person shall have previously notified to the Agent. 30.3.2 A payment will be deemed to have been made by the Agent on the date on which it is required to be made under this Agreement if the Agent has, on or before that date, taken steps to make that payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Agent in order to make the payment. - 100 - 104 30.4 NO SET-OFF All payments required to be made by an Obligor hereunder shall be calculated without reference to any set-off or counterclaim and shall be made free and clear of and without any deduction for or on account of any set-off or counterclaim. 30.5 CLAWBACK Where a sum is to be paid hereunder to the Agent for account of another person, the Agent shall not be obliged to make the same available to that other person until it has been able to establish to its satisfaction that it has actually received such sum, but if it does so and it proves to be the case that it had not actually received such sum, then the person to whom such sum was so made available shall on request refund the same to the Agent together with an amount sufficient to indemnify the Agent against any cost or loss it may have suffered or incurred by reason of its having paid out such sum prior to its having received such sum. 30.6 SECURITY PROCEEDS Each Security Party (other than the Agent) shall promptly pay all Security Proceeds recovered by it to the Agent. All Security Proceeds received, recovered or paid to the Agent will be held and applied by the Agent as follows: 30.6.1 to the extent such sums are not denominated in Swiss Francs, they will be converted by the Agent into the equivalent amount of Swiss Francs; and 30.6.2 the net Security Proceeds will then be credited to such account or accounts as the Agent thinks fit pending their application in accordance with Clause 30.7 (Application of Security Proceeds), the Agent being entitled to retain the net Security Proceeds in such account or accounts whilst any Obligor remains under any actual or contingent obligations under the Finance Documents and/or any member of the Group remains under any actual or contingent obligations under or in respect of the Secured Permitted Facilities. 30.7 APPLICATION OF SECURITY PROCEEDS Amounts standing to the credit of the account or accounts referred to in Clause 30.6 (Security Proceeds) shall (save to the extent prohibited by any applicable law) be applied by the Agent in the following order of priority: 30.7.1 FIRST, in or towards payment of any unpaid costs and expenses of the Agent; 30.7.2 SECONDLY, in or towards discharging all assessments to tax made on the Agent (or, as the case may be, any other Security Party) in respect of any of the Security held by it or its receipt of the Security Proceeds; 30.7.3 THIRDLY, after setting aside any sums which the Agent believes will or may become payable under either sub-clause 30.7.1 or sub-clause 30.7.2 above, in or towards satisfying the Principal Borrower's obligations to the Banks under sub-clause 28.1.2 of Clause 28.1 (Borrowers' Indemnities); - 101 - 105 30.7.4 FOURTHLY, to the Finance Parties and the Permitted Facilities Provider in or towards the discharge, pro rata, of all sums due and payable by the Parent or the Obligors under the Finance Documents or, as the case may be, by any members of the Group under or in respect of the Secured Permitted Facilities; 30.7.5 FIFTHLY, if no Obligor has any further actual or contingent liability under the Finance Documents and no member of the Group has any further actual or contingent liability under the documentation relating to the Secured Permitted Facilities, in payment to the extent necessary to any person the Agent is obliged to pay in priority to the member of the Group otherwise entitled to such sum; and 30.7.6 thereafter, in payment to the member of the Group entitled to such sum. The Permitted Facilities Provider shall, for the purposes of enabling the Agent to determine the amounts to be applied in accordance with the provisions of Clause 30.7.4 and Clause 30.7.5, promptly after the Agent declares all or any part of the Advances to be immediately due and payable in accordance with either Clause 23.19 (Acceleration and Cancellation) or Clause 23.20 (Advances Due on Demand), notify the Agent of the amounts due and payable to it under or in respect of the Secured Permitted Facilities (identifying, in such notification, the nature of each such amount payable, whether it is in respect of principal, interest or some other obligation). 30.8 PARTIAL PAYMENTS If and whenever: 30.8.1 a payment is made by an Obligor hereunder and the Agent receives an amount less than the due amount of such payment; or 30.8.2 the Agent is to apply Security Proceeds in or towards the discharge of all sums due and payable by the Parent or the Obligors under the Finance Documents and/or payable by any members of the Group under or in respect of the Secured Permitted Facilities, but the Security Proceeds to be so applied are less than such sums due and payable, the Agent may apply the amount received towards the obligations of the Obligors under the Finance Documents and the obligations of any members of the Group under or in respect of the Secured Permitted Facilities, in the following order: (a) FIRST, in or towards payment of any unpaid costs and expenses of the Agent; (b) SECONDLY, in or towards payment pro rata of any accrued interest or commitment commission due but unpaid; (c) THIRDLY, in or towards payment pro rata of any principal due but unpaid; and (d) FOURTHLY, in or towards payment pro rata of any other sum due but unpaid. - 102 - 106 30.9 VARIATION OF PARTIAL PAYMENTS The order of partial payments set out in Clause 30.8 (Partial Payments) shall, in the case of the payment made by any member of the Group, override any appropriation made by the member of the Group to which the partial payment relates but the order set out in sub-clauses (b), (c) and (d) of Clause 30.8 (Partial Payments) may be varied if agreed by, in the case of a payment falling within sub-clause 30.8.1 of Clause 30.8 (Partial Payments) all the Banks and, in the case of a payment falling within sub-clause 30.8.2 of Clause 30.8 (Partial Payments), by all the Banks and the Permitted Facilities Provider. 30.10 BUSINESS DAYS 30.10.1 Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). 30.10.2 During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal at the rate payable on the original due date. 31. SET-OFF 31.1 CONTRACTUAL SET-OFF Each Obligor authorises each Bank, at any time any sum is due and payable hereunder and remains unpaid, to apply any credit balance to which such Obligor is entitled on any account of such Obligor with such Bank in satisfaction of any sum due and payable from such Obligor to such Bank under the Finance Documents but unpaid. For this purpose, each Bank is authorised to purchase with the moneys standing to the credit of any such account such other currencies as may be necessary to effect such application. 31.2 SET-OFF NOT MANDATORY No Bank shall be obliged to exercise any right given to it by Clause 31.1 (Contractual Set-off). 32. SHARING 32.1 PAYMENTS TO BANKS If (a) prior to the Agent declaring all or any part of the Advances to be immediately due and payable in accordance with either Clause 23.19 (Acceleration and Cancellation) or Clause 23.30 (Advances Due on Demand), a Bank (a "RECOVERING BANK") applies any receipt or recovery from an Obligor to a payment due and payable under this Agreement and such amount is received or recovered other than in accordance with Clause 30.3 (Payments by the Agent), or (b) after the Agent declaring all or any part of the Advances to be immediately due and payable in accordance with either Clause 23.19 (Acceleration and Cancellation) or Clause 23.20 (Advances Due on Demand), a Bank or the Permitted Facilities Provider (a "RECOVERING ENTITY") applies any receipt or recovery from a member of the Group to a payment due and payable under this Agreement and/or the documentation relating to the Secured Permitted - 103 - 107 Facilities and such amount is received or recovered other than in accordance with Clause 30.7 (Application of Security Proceeds) or Clause 30.8 (Partial Payments), then such Recovering Bank or, as the case may be, such Recovering Entity shall: 32.1.1 notify the Agent of such receipt or recovery; 32.1.2 at the request of the Agent, promptly pay to the Agent an amount (the "SHARING PAYMENT") equal to such receipt or recovery less any amount which the Agent determines may be retained by such Recovering Bank or, as the case may be, such Recovering Entity as its share of any payment to be made in accordance with Clause 30.8 (Partial Payments). 32.2 REDISTRIBUTION OF PAYMENTS The Agent shall treat the Sharing Payment as if it had been paid by the relevant member of the Group and distribute it between the Finance Parties (other than the Recovering Bank) or, as the case may be, between the Security Parties (other than the Recovering Entity) in accordance with Clause 30.8 (Partial Payments). 32.3 RECOVERING BANK'S RIGHTS The Recovering Bank or, as the case may be, the Recovering Entity will be subrogated into the rights of the parties which have shared in a redistribution pursuant to Clause 32.2 (Redistribution of Payments) in respect of the Sharing Payment (and the relevant Obligor (or, in the case of any member of the Group which is not an Obligor, the Principal Borrower shall procure that such member of the Group) shall be liable to the Recovering Bank or, as the case may be, the Recovering Entity in an amount equal to the Sharing Payment). 32.4 REPAYABLE RECOVERIES If any part of the Sharing Payment received or recovered by a Recovering Bank or, as the case may be, the Recovering Entity becomes repayable and is repaid by such Recovering Bank or, as the case may be, by such Recovering Entity, then: 32.4.1 each party which has received a share of such Sharing Payment pursuant to Clause 32.2 (Redistribution of Payments) shall, upon request of the Agent, pay to the Agent for account of such Recovering Bank or, as the case may be, such Recovering Entity an amount equal to its share of such Sharing Payment; and 32.4.2 such Recovering Bank's or, as the case may be, such Recovering Entity's rights of subrogation in respect of any reimbursement shall be cancelled and the relevant member of the Group will be liable to the reimbursing party for the amount so reimbursed. 32.5 EXCEPTION This Clause 32 shall not apply if the Recovering Bank or, as the case may be, the Recovering Entity would not, after making any payment pursuant hereto, have a valid and enforceable claim against the relevant member of the Group. - 104 - 108 32.6 RECOVERIES THROUGH LEGAL PROCEEDINGS If any Bank intends to commence any action in any court it shall give prior notice to the Agent and the other Banks. If any Bank shall commence any action in any court to enforce its rights hereunder and, as a result thereof or in connection therewith, receives any amount, then such Bank shall not be required to share any portion of such amount with any Bank which has the legal right to, but does not, join in such action or commence and diligently prosecute a separate action to enforce its rights in another court. 32.7 HEDGING AGREEMENTS The Principal Borrower shall provide the Agent with, as soon as is reasonably practicable after the same are entered into, copies of the Hedging Agreements entered into by either it or any other Borrowers selected by it pursuant to Clause 22.26 (Hedging). The Principal Borrower and each Hedging Bank shall ensure that each Hedging Agreement to which (a) (in the case of the Principal Borrower) it or any other member of the Group is a party or (b) (in the case of a Hedging Bank) it or any of its affiliates is a party as a Hedge Counterparty: 32.7.1 provides for "two-way payments" in the event of a termination of a hedging transaction entered into pursuant to a Hedging Agreement whether upon a termination event or an event of default (each as defined in the Hedging Agreement), meaning that the defaulting party under that Hedging Agreement will be entitled to receive payment under the relevant termination provisions if the net replacement value of all terminated transactions affected under the Hedging Agreement is in its favour; 32.7.2 includes as an event of default (as defined in the Hedging Agreement) an Event of Default. 32.8 TERMINATION OF HEDGING AGREEMENTS Each Hedging Bank shall: 32.8.1 if (a) any hedging transaction under any Hedging Agreement to which it (or, as the case may be, its affiliate) is a party is terminated, (b) a settlement amount or other amount falls due from it (or, as the case may be, its affiliate) to any Obligor under such a Hedging Agreement and (c) the Security has become, and remains at the proposed date of payment, enforceable, pay (or procure that its affiliate pays) such a settlement amount to the Agent as Security Proceeds for application in accordance with Clause 30.7 (Application of Security Proceeds); and 32.8.2 unless the Agent otherwise instructs it, exercise (or procure that its affiliate exercises) any rights it may have to terminate the hedging transactions under the Hedging Agreements to which either it or its affiliate is a party as soon as is reasonably practicable after the date on which the Agent declares all or any part of the Advances to be immediately due and payable in accordance with - 105 - 109 either Clause 23.19 (Acceleration and Cancellation) or Clause 23.20 (Advances Due on Demand). 32.9 RIGHTS OF HEDGE COUNTERPARTIES Whilst any Obligor has any actual or contingent liabilities under the Finance Documents, except with the prior consent of the Agent (acting on the instructions of an Instructing Group), no Hedging Bank will (and each Hedging Bank will procure that any of its affiliates who are Hedge Counterparties do not): 32.9.1 demand or receive payment, prepayment, repayment, or any distribution in respect of or on account of any of the Hedging Liabilities in cash or in kind or apply any money or property in or towards the discharge of any Hedging Liabilities except for: (a) scheduled payments arising under the terms of the Hedging Agreements; and (b) the proceeds of enforcement of the Security Documents received and applied in the order permitted by Clause 30.7 (Application of Security Proceeds); 32.9.2 exercise any right it might otherwise have pursuant to any Hedging Agreement to terminate any hedging transactions under such Hedging Agreement or to refuse to make any payment due from it under such hedging transactions until the Agent declares all or any part of the Advances to be immediately due and payable in accordance with either Clause 23.19 (Acceleration and Cancellation) or Clause 23.20 (Advances Due on Demand); 32.9.3 discharge all or any part of the Hedging Liabilities by set-off, any right of combination of accounts or otherwise except if and to the extent that those Hedging Liabilities are permitted to be paid under sub-clause 32.9.1(a); or 32.9.4 take, accept or receive the benefit of any Encumbrance or guarantee in respect of the Hedging Liabilities other than under (a) the Finance Documents or (b) any other Encumbrance or guarantee granted for the full benefit of the Finance Parties in accordance with the ranking specified in this Agreement. 32.10 AMENDMENT OF HEDGING AGREEMENTS Except with the prior written consent of the Agent (acting on the instructions of an Instructing Group), neither an Obligor nor a Hedging Bank will (and each Hedging Bank which has an affiliate who is a Hedge Counterparty will procure that such affiliate does not) amend, vary, supplement or allow to be superseded any provision of the Hedging Agreements which would result in: 32.10.1 any provision in the Hedging Agreements being amended unless the Hedge Counterparty concerned, acting reasonably and in good faith, certifies to the Agent that it considers such amendment does not impose restrictions or - 106 - 110 obligations or conditions on any Obligor which are more onerous than those originally provided for in the Hedging Agreements; 32.10.2 any payment under the Hedging Agreements being required to be made by a Obligor earlier than the date originally provided for in the Hedging Agreements; or 32.10.3 any Obligor becoming liable to make an additional payment (or increase an existing payment) under any of the Hedging Agreements, where such liability does not arise from the original provisions of the Hedging Agreements. 33. THE AGENT, THE ARRANGERS AND THE BANKS 33.1 APPOINTMENT OF THE AGENT Each of the Arrangers, the Banks and, for the purposes of (a) Clause 30 (Payments), Clause 32 (Sharing) and Clause 41 (Amendments) of this Agreement and (b) the Agent's entry into of certain of the Security Documents, the Permitted Facilities Provider, hereby appoints the Agent to act as its agent in connection with the Finance Documents and authorises the Agent to exercise such rights, powers, authorities and discretions as are specifically delegated to the Agent under or in connection with the Finance Documents or, as the case may be, the Secured Permitted Facilities together with any other incidental rights, powers, authorities and discretions. In respect of the Subordination Deed, the parties hereto agree that the Agent acts as the agent and representative of the Finance Parties and the Permitted Facilities Provider in accordance with the provisions of Dutch law. 33.2 AGENT'S DISCRETIONS The Agent may: 33.2.1 assume, unless it has, in its capacity as agent for the Banks, received notice to the contrary from any other party hereto, that (a) any representation made or deemed to be made by the Parent or an Obligor in connection with the Finance Documents is true, (b) no Event of Default or Potential Event of Default has occurred (unless it has actual knowledge of an Event of Default arising under Clause 23.1 (Failure to Pay)), (c) neither the Parent nor any Obligor is in breach of or default under its obligations under the Finance Documents and (d) any right, power, authority or discretion vested herein upon an Instructing Group, the Banks or any other person or group of persons has not been exercised; 33.2.2 assume that (a) the Facility Office of each Bank is that notified to it by such Bank in writing and (b) the information provided by each Bank pursuant to Clause 39 (Notices), Clause 33.15 (Banks' Mandatory Cost Details) and Schedule 10 (Mandatory Costs), and the information provided by the Permitted Facilities Provider pursuant to Clause 39 (Notices), is true and correct in all respects until it has received from such Bank or, as the case may be, the Permitted Facilities Provider notice of a change to the Facility Office - 107 - 111 or any such information and act upon any such notice until the same is superseded by a further notice; 33.2.3 engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained; 33.2.4 rely as to any matters of fact which might reasonably be expected to be within the knowledge of the Parent or an Obligor upon a certificate signed by or on behalf of the Parent or such Obligor; 33.2.5 rely upon any communication or document believed by it to be genuine; 33.2.6 refrain from exercising any right, power or discretion vested in it as agent under the Finance Documents unless and until instructed by an Instructing Group as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised; 33.2.7 refrain from acting in accordance with any instructions of an Instructing Group to begin any legal action or proceeding arising out of or in connection with the Finance Documents until it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which it will or may expend or incur in complying with such instructions; and 33.2.8 assume (unless it has specific notice to the contrary) that any notice or request made by the Principal Borrower is made on behalf of all the Obligors. 33.3 AGENT'S OBLIGATIONS The Agent shall: 33.3.1 promptly inform each Bank of the contents of any written notice or document received by it in its capacity as Agent from the Parent or an Obligor under the Finance Documents; 33.3.2 promptly notify each Bank of the occurrence of any Event of Default or any default by the Parent or an Obligor in the due performance of or compliance with its obligations under the Finance Documents of which the Agent has notice from any other party hereto; 33.3.3 promptly notify each Bank of the occurrence of an Event of Default under Clause 23.1 (Failure to Pay); 33.3.4 promptly notify each Bank and the Permitted Facilities Provider of all or any part of the Advances being declared to be immediately due and payable in accordance with either Clause 23.19 (Acceleration and Cancellation) or Clause 23.30 (Advances Due on Demand); - 108 - 112 33.3.5 save as otherwise provided herein, act as agent under the Finance Documents in accordance with any instructions given to it by an Instructing Group, which instructions shall be binding on the Arrangers and the Banks; 33.3.6 if so instructed by an Instructing Group, refrain from exercising any right, power or discretion vested in it as agent under the Finance Documents; and 33.3.7 unless it has a Bank's consent, refrain from acting on behalf of that Bank in any legal or arbitration proceedings relating to any Finance Document. The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. 33.4 EXCLUDED OBLIGATIONS Notwithstanding anything to the contrary expressed or implied herein, neither the Agent nor an Arranger shall: 33.4.1 be bound to enquire as to (a) whether or not any representation made or deemed to be made by either the Parent or an Obligor in connection with the Finance Documents is true, (b) the occurrence or otherwise of any Event of Default or Potential Event of Default, (c) the performance by either the Parent or an Obligor of its obligations under the Finance Documents or (d) any breach of or default by either the Parent or an Obligor of or under its obligations under the Finance Documents; 33.4.2 be bound to account to any Bank or the Permitted Facilities Provider for any sum or the profit element of any sum received by it for its own account; 33.4.3 be bound to disclose to any other person any information relating to any member of the NTL Inc. Group, any member of the NTL Inc. Holding Group or any member of the Group if (a) such information is confidential or (b) such disclosure would or might in its reasonable opinion constitute a breach of any law or a breach of fiduciary duty; 33.4.4 be under any obligations other than those for which express provision is made herein; or 33.4.5 be or be deemed to be a fiduciary for any other party hereto. 33.5 DELEGATION The Agent may delegate, transfer or assign to any subsidiary of The Chase Manhattan Corporation or its successor from time to time all or any of the rights, powers, authorities and discretions vested in it under the Finance Documents and the performance of its duties in accordance therewith, and such delegation, transfer or assignment may be made upon such terms and subject to such conditions (including the power to sub-delegate) and subject to such regulations as the Agent may think fit (and the term "Agent" as used in this Agreement shall include any such delegate). - 109 - 113 33.6 INDEMNIFICATION Each Bank shall, in its Proportion, from time to time on demand by the Agent, indemnify the Agent against any and all costs, claims, losses, expenses (including legal fees) and liabilities together with any VAT thereon which the Agent may incur, otherwise than by reason of its own gross negligence or wilful misconduct, in acting in its capacity as agent under the Finance Documents (other than any which have been reimbursed by the Borrowers pursuant to Clause 28.1 (Borrowers' Indemnity)). 33.7 EXCLUSION OF LIABILITIES Each Bank confirms that it has read the Notice to Recipients in the Information Memorandum, that it has complied with the Recipients' Obligations (as set out in the Notice to Recipients) and, accordingly, that it enters into this Agreement on the basis of the Notice to Recipients. In particular, each of the Banks accepts that it is entering into this Agreement in reliance only on the representations of the Parent and Obligors in this Agreement (and, in relation to the Information Memorandum, in reliance only on the representations of the Shareholder in Clause 19.22 (Information Memorandum)) and on its own investigations, that it has not relied on the Arrangers and that, except as set out below, it neither has nor will have any claims against the Arrangers arising from or in connection with this Agreement. Similarly, each of the Banks accepts that the Notice to Recipients in the Information Memorandum is applicable also to the Agent as if the Agent had been named in addition to the Arrangers in the Important Notice. Except in the case of gross negligence or wilful default, neither the Agent nor any Arranger accepts any responsibility to any of the Banks and/or to the Permitted Facilities Provider: 33.7.1 for the adequacy, accuracy and/or completeness of the Information Memorandum or any other information supplied by the Agent or the Arrangers, by the Parent or an Obligor or by any other person in connection with the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; 33.7.2 for the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; or 33.7.3 for the exercise of, or the failure to exercise, any judgement, discretion or power given to any of them by or in connection with the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents. - 110 - 114 Accordingly, neither the Agent nor the Arrangers shall be under any liability (whether in negligence or otherwise) in respect of such matters, save in the case of gross negligence or wilful misconduct. 33.8 NO ACTIONS Each of the Banks agrees that it will not assert or seek to assert against any director, officer or employee of the Agent or the Arrangers any claim it might have against any of them in respect of the matters referred to in Clause 33.7 (Exclusion of Liabilities). 33.9 BUSINESS WITH THE GROUP The Agent and the Arrangers may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the NTL Inc. Group, the NTL Inc. Holding Group or any member of the Group whether or not it may or does lead to a conflict with the interests of any of the Banks. Similarly, the Agent or the Arrangers may undertake business with or for others even though it may lead to a conflict with the interests of any of the Banks. 33.10 RESIGNATION The Agent may resign its appointment hereunder at any time without assigning any reason therefor by giving not less than thirty days' prior notice to that effect to each of the other parties hereto, PROVIDED THAT no such resignation shall be effective until a successor for the Agent is appointed in accordance with the succeeding provisions of this Clause 33. 33.11 REMOVAL OF AGENT An Instructing Group may, after consultation with the Principal Borrower, remove the Agent from its role as agent under the Finance Documents by giving notice to that effect to each of the other parties hereto. Such removal shall take effect only when a successor to the Agent is appointed in accordance with the terms of the Finance Documents. 33.12 SUCCESSOR AGENT If the Agent gives notice of its resignation pursuant to Clause 33.10 (Resignation) or it is removed pursuant to Clause 33.11 (Removal of Agent), then any reputable and experienced bank or other financial institution may, with the prior consent of the Principal Borrower, be appointed as a successor to the Agent by an Instructing Group during the period of such notice but, if no such successor is so appointed, the Agent may appoint such a successor itself. 33.13 RIGHTS AND OBLIGATIONS If a successor to the Agent is appointed under the provisions of Clause 33.12 (Successor Agent), then (a) the retiring or departing Agent shall be discharged from any further obligation under the Finance Documents but shall remain entitled to the benefit of the provisions of this Clause 33 and (b) its successor and each of the other parties to the Finance Documents shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party thereto. - 111 - 115 33.14 OWN RESPONSIBILITY It is understood and agreed by each Bank that at all times it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigation into all risks arising under or in connection with the Finance Documents including, but not limited to: 33.14.1 the financial condition, creditworthiness, condition, affairs, status and nature of each member of the NTL Inc. Group, the NTL Inc. Holding Group and the Group; 33.14.2 the legality, validity, effectiveness, adequacy and enforceability of the Finance Documents and any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; 33.14.3 whether such Bank has recourse, and the nature and extent of that recourse, against an Obligor or any other person or any of their respective assets under or in connection with the Finance Documents, the transactions therein contemplated or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents; and 33.14.4 the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Agent or the Arrangers, the Parent, an Obligor, or by any other person in connection with the Finance Documents, the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Finance Documents. Accordingly, each Bank acknowledges to the Agent and the Arrangers that it has not relied on and will not hereafter rely on the Agent and the Arrangers or any of them in respect of any of these matters. 33.15 BANKS' MANDATORY COST DETAILS Each Bank will supply the Agent with such information and in such detail as the Agent may require in order to calculate the Mandatory Cost Rate in accordance with Schedule 10 (Mandatory Costs). 33.16 RECEIPT OF INFORMATION BY THE AGENT Any information or document received by the Agent shall only be treated as having been received by the Agent if the same has been delivered to the Agent's agency department in accordance with Clause 40 (Notices). Accordingly, any information or documents received by the Agent other than by its agency department in accordance with Clause 40 (Notices) is not by reason of that receipt to be treated as having been received by the Agent unless and until the Agent's agency department has received actual notice of the same in accordance with such Clause. Save as expressly set out in this Agreement and, unless the Agent's agency department shall have received - 112 - 116 information or documents in accordance with Clause 40 (Notices) the Agent shall have no duty to disclose, and shall not be liable for the failure to disclose, any information or documents, that are communicated to or obtained by the Agent. 34. ASSIGNMENTS AND TRANSFERS 34.1 BINDING AGREEMENT The Finance Documents shall be binding upon and enure to the benefit of each party hereto and its or any subsequent successors and Transferees. 34.2 NO ASSIGNMENTS AND TRANSFERS BY THE PARENT OR THE OBLIGORS Neither the Parent nor any Obligor shall be entitled to assign or transfer all or any of its rights, benefits and obligations under the Finance Documents. 34.3 ASSIGNMENT AND TRANSFERS BY BANKS 34.3.1 Subject to Clause 34.7 (Qualifying Lenders), any Bank may, at any time, assign all or any of its rights and benefits hereunder, transfer in accordance with Clause 34.5 (Transfers by Banks) all or any of its rights, benefits and obligations hereunder to, or enter into any form of sub-participation agreement with, a bank or financial institution. 34.3.2 The prior written consent of the Principal Borrower (which shall be deemed to be given on its own behalf and on behalf of the other Obligors) is required for an assignment or transfer by a Bank unless the assignment or transfer is to: (a) another Bank; or (b) an affiliate of the transferring Bank. 34.3.3 The Principal Borrower's consent must not be (a) unreasonably delayed or withheld or (b) withheld solely because the assignment or transfer may result in an increase to the Mandatory Cost Rate. 34.3.4 Any assignment or transfer by a Bank shall be in respect of a pro rata amount of such Bank's participation in each Facility. 34.4 ASSIGNMENTS BY BANKS If any Bank assigns all or any of its rights and benefits under the Finance Documents in accordance with Clause 34.3 (Assignments and Transfers by Banks), then, unless and until the assignee has delivered a notice to the Agent confirming in favour of the other Finance Parties that it shall be under the same obligations towards each of them as it would have been under if it had been an original party hereto as a Bank (whereupon such assignee shall become a party hereto as a "Bank"), the Agent, the Arrangers, the other Banks and the Permitted Facilities Provider shall not be obliged to recognise such assignee as having the rights against each of them which it would have had if it had been such a party hereto. - 113 - 117 34.5 TRANSFERS BY BANKS If any Bank wishes to transfer all or any of its rights, benefits and/or obligations under the Finance Documents as contemplated in Clause 34.3 (Assignments and Transfers by Banks), then such transfer may be effected by the delivery to the Agent of a duly completed Transfer Certificate executed by such Bank and the relevant Transferee in which event, on the later of the Transfer Date specified in such Transfer Certificate and the fifth Business Day after (or such earlier Business Day endorsed by the Agent on such Transfer Certificate falling on or after) the date of delivery of such Transfer Certificate to the Agent: 34.5.1 to the extent that in such Transfer Certificate the Bank party thereto seeks to transfer by novation its rights, benefits and obligations under the Finance Documents, the Parent and each of the Obligors and such Bank shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another shall be cancelled (such rights and obligations being referred to in this Clause 34.5 as "DISCHARGED RIGHTS AND OBLIGATIONS"); 34.5.2 the Parent, each of the Obligors and the Transferee party thereto shall assume obligations towards one another and/or acquire rights against one another which differ from such discharged rights and obligations only insofar as the Parent, the Obligors and such Transferee have assumed and/or acquired the same in place of the Parent, the Obligors and such Bank; 34.5.3 the Agent, the Arrangers, the Permitted Facilities Provider, such Transferee and the other Banks shall acquire the same rights and benefits and assume the same obligations between themselves as they would have acquired and assumed had such Transferee been an original party hereto as a Bank with the rights, benefits and/or obligations acquired or assumed by it as a result of such transfer and to that extent the Agent, the Arrangers, the Permitted Facilities Provider, the other Banks and the relevant Bank shall each be released from further obligations to each other under the Finance Documents; and 34.5.4 such Transferee shall become a party hereto as a "Bank". 34.6 NO INCREASED OBLIGATIONS If: 34.6.1 a Bank assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and 34.6.2 as a result of circumstances existing at the date of the assignment, transfer or change of Facility Office, an Obligor would be obliged to make a payment to the assignee, Transferee or the Bank acting through its new Facility Office under Clause 14.1 (Tax Gross-up), Clause 14.2 (Tax Indemnity) or Clause 16 (Increased Costs), - 114 - 118 then the assignee, Transferee or the Bank acting through its new Facility Office shall only be entitled to receive payment under those Clauses to the same extent as the assignor, transferor or the Bank acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. 34.7 QUALIFYING LENDERS 34.7.1 Subject to sub-clause 34.7.2 below, no Bank may: (a) assign all or any of its rights and benefits hereunder to; (b) transfer all or any of its rights, benefits and obligations hereunder to; or (c) enter into a sub-participation agreement in relation to this Agreement with, any person who is not, at the time of such an assignment, transfer or sub-participation a Qualifying Lender. 34.7.2 On or before the Syndication Date, the Banks may with the consent of the Arrangers (and in consultation with the Principal Borrower) assign all or any of their rights and benefits hereunder or transfer all or any of their rights, benefits and obligations hereunder to financial institutions who are not Qualifying Lenders PROVIDED THAT the number of Banks who are not Qualifying Lenders shall not exceed ten. 34.7.3 Any Bank who enters into a sub-participation agreement in relation to this Agreement shall ensure that: (a) the terms of such sub-participation agreement oblige the sub-participant to neither enter into further sub-participation agreements (in relation to the rights between it and such Bank) nor assign or grant any interest over the sub-participation agreement, except in each case to a person who is a Qualifying Lender; (b) the sub-participant enters into an undertaking in favour of each Obligor to abide by the terms included in the sub-participation agreement to reflect paragraph (a) above; (c) the terms of such sub-participation agreement oblige the sub-participant, in respect of any further sub-participation, assignment or grant, to include a term identical to the provisions of this clause mutatis mutandis, including a requirement that any further sub-participant, assignee or grantee enters into such undertaking. 34.8 ASSIGNMENT AND TRANSFER FEES On the date upon which an assignment takes effect pursuant to Clause 34.4 (Assignments by Banks) or a transfer takes effect pursuant to Clause 34.5 (Transfers by Banks) the relevant assignee or Transferee shall pay to the Agent for its own account a fee of $1,500. - 115 - 119 34.9 CONFIDENTIALITY Each Bank agrees to be bound by the terms and conditions of the Confidentiality Undertaking, as if such had been issued by such a Bank to, and countersigned by, the Parent. This Clause 34.8 and the terms and conditions of the Confidentiality Undertaking shall replace and supersede any undertakings with respect to confidentiality in relation to this transaction previously given by any Bank in favour of the Parent and other members of the NTL Inc. Group, the NTL Inc. Holding Group and the Group. 34.10 DISCLOSURE OF INFORMATION Any Bank may disclose to any person: 34.10.1 to (or through) whom such Bank assigns or transfers (or may potentially assign or transfer) all or any of its rights, benefits and obligations under the Finance Documents; 34.10.2 with (or through) whom such Bank enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, the Finance Documents or any Obligor; or 34.10.3 to whom information may be required to be disclosed by any applicable law, such information about the Parent, the NTL Inc. Group, the NTL Inc. Holding Group, the Group and the Finance Documents as such Bank shall consider appropriate PROVIDED THAT, in relation to sub-clauses 34.10.1 and 34.10.2, the person to whom such information is to be given has entered into a Confidentiality Undertaking. 34.11 NOTIFICATION The Agent shall within fourteen days of receiving a Transfer Certificate notify the Principal Borrower (on its own behalf and on behalf of the other Borrowers) of any assignment or transfer completed pursuant to this Clause 34. 35. ADDITIONAL BORROWERS 35.1 REQUEST FOR ADDITIONAL BORROWER The Principal Borrower may request that any of its subsidiaries incorporated in either Switzerland or Austria become an Additional Borrower by delivering to the Agent a Borrower Accession Memorandum duly executed by the Principal Borrower and such subsidiary, together with the documents and other evidence listed in Schedule 8 (Additional Conditions Precedent) in relation to such subsidiary. 35.2 BORROWER CONDITIONS PRECEDENT A company, in respect of which the Principal Borrower has delivered a Borrower Accession Memorandum to the Agent, shall become an Additional Borrower and assume all the rights, benefits and obligations of a Borrower as if it had been an Original Borrower on the date on which the Agent notifies the Principal Borrower that: - 116 - 120 35.2.1 all of the Banks accepts the Principal Borrower's request in respect of such subsidiary; and 35.2.2 the Agent has received, in form and substance satisfactory to it, all documents and other evidence listed in Schedule 8 (Additional Conditions Precedent) in relation to such subsidiary, unless on such date an Event of Default or Potential Event of Default is continuing or would occur as a result of such subsidiary becoming an Additional Borrower. 35.3 RESIGNATION OF A BORROWER If at any time a Borrower (other than the Principal Borrower) is under no actual or contingent obligation under or pursuant to any Finance Document, the Principal Borrower may request that such Borrower shall cease to be a Borrower by delivering to the Agent a Resignation Notice. Such Resignation Notice shall be accepted by the Agent on the date on which it notifies the Principal Borrower that it is satisfied that such Borrower is under no actual or contingent obligation under or pursuant to any Finance Document and such Borrower shall immediately cease to be a Borrower and shall have no further rights, benefits or obligations hereunder save for those which arose prior to such date. 36. ADDITIONAL GUARANTORS 36.1 REQUEST FOR ADDITIONAL GUARANTOR The Principal Borrower may request that any of its subsidiaries become an Additional Guarantor by delivering to the Agent a Guarantor Accession Memorandum duly executed by the Principal Borrower and such subsidiary, together with the documents and other evidence listed in Schedule 8 (Additional Conditions Precedent) in relation to such subsidiary. 36.2 GUARANTOR CONDITIONS PRECEDENT A company, in respect of which the Principal Borrower has delivered a Guarantor Accession Memorandum to the Agent, shall become an Additional Guarantor and assume all the rights, benefits and obligations of a Guarantor as if it had been an original party hereto as a Guarantor on the date on which the Agent notifies the Principal Borrower that it has received, in form and substance satisfactory to it, all the documents and other evidence listed in Schedule 8 (Additional Conditions Precedent). 36.3 RESIGNATION OF A GUARANTOR The Principal Borrower may request that a Guarantor (other than the Principal Borrower) ceases to be a Guarantor by delivering a Resignation Notice to the Agent. The Agent shall accept such Resignation Notice and notify the Principal Borrower of its acceptance (whereupon such Guarantor shall immediately cease to be a Guarantor and shall have no further rights, benefits or obligations hereunder) if: 36.3.1 the Agent has received evidence, in form and substance satisfactory to it, confirming that the aggregate EBITDA of the remaining Guarantors for the last financial year of the Principal Borrower equalled or exceeded 95% of the - 117 - 121 consolidated EBITDA of the Restricted Group for such a financial year (calculated in accordance with Clause 22.23 (Guarantors); and 36.3.2 on such date no Event of Default or Potential Event of Default is continuing or would occur as a result of such cessation. 37. PERMITTED FACILITIES PROVIDER 37.1 REQUEST FOR PERMITTED FACILITIES PROVIDER The Principal Borrower may request that any financial institution becomes the Permitted Facilities Provider by delivering to the Agent: 37.1.1 a written request, identifying such financial institution; and 37.1.2 copies of the proposed documentation setting out the terms on which the Secured Permitted Facilities will be made available to certain members of the Restricted Group. 37.2 PERMITTED FACILITIES PROVIDER CONDITIONS PRECEDENT The financial institution, in respect of which the Principal Borrower has delivered a request in accordance with Clause 37.1 (Request for Permitted Facilities Provider), shall become the Permitted Facilities Provider and assume all the rights, benefits and obligations of the Permitted Facilities Provider as if it had been an original party hereto as the Permitted Facilities Provider if: 37.2.1 the Agent (acting on the instructions of an Instructing Group) has (a) confirmed to the Principal Borrower that such financial institution is acceptable to it and (b) approved the terms of the proposed documentation on which the Secured Permitted Facilities will be provided; and 37.2.2 the Agent has received a Deed of Accession executed by such a financial institution. 38. CALCULATIONS AND EVIDENCE OF DEBT 38.1 BASIS OF ACCRUAL Interest and commitment commission shall accrue from day to day and shall be calculated on the basis of a year of 360 days (or, in any case where market practice differs, in accordance with market practice) and the actual number of days elapsed. 38.2 QUOTATIONS If on any occasion a Reference Bank or Bank fails to supply the Agent with a quotation required of it under the foregoing provisions of this Agreement, the rate for which such quotation was required shall be determined from those quotations which are supplied to the Agent, PROVIDED THAT, in relation to determining LIBOR, this Clause 38.2 shall not apply if only one Reference Bank supplies a quotation. - 118 - 122 38.3 EVIDENCE OF DEBT Each Bank shall maintain in accordance with its usual practice accounts evidencing the amounts from time to time lent by and owing to it hereunder. 38.4 CONTROL ACCOUNTS The Agent shall maintain on its books a control account or accounts in which shall be recorded (a) the amount of any Advance or any Unpaid Sum and each Bank's share therein, (b) the amount of all principal, interest and other sums due or to become due from an Obligor and each Bank's share therein and (c) the amount of any sum received or recovered by the Agent hereunder and each Bank's share therein. 38.5 PRIMA FACIE EVIDENCE In any legal action or proceeding arising out of or in connection with this Agreement, the entries made in the accounts maintained pursuant to Clause 38.3 (Evidence of Debt) and Clause 38.4 (Control Accounts) shall be prima facie evidence of the existence and amounts of the specified obligations of the Obligors. 38.6 CERTIFICATES OF BANKS A certificate of a Bank as to (a) the amount by which a sum payable to it hereunder is to be increased under Clause 14.1 (Tax Gross-up), (b) the amount for the time being required to indemnify it against any such cost, payment or liability as is mentioned in Clause 14.2 (Tax Indemnity), Clause 16.1 (Increased Costs) or Clause 28.1 (Borrowers' Indemnity) or (c) the amount of any credit, relief, remission or repayment as is mentioned in Clause 15.3 (Tax Credit Payment) or Clause 15.4 (Tax Credit Clawback) shall, in the absence of manifest error, be prima facie evidence of the existence and amounts of the specified obligations of the Obligors. 38.7 AGENT'S CERTIFICATES A certificate of the Agent as to the amount at any time due from a Borrower hereunder or the amount which, but for any of the obligations of such Borrower hereunder being or becoming void, voidable, unenforceable or ineffective, at any time would have been due from such Borrower hereunder shall, in the absence of manifest error, be conclusive for the purposes of Clause 24 (Guarantee and Indemnity). 39. REMEDIES AND WAIVERS, PARTIAL INVALIDITY 39.1 REMEDIES AND WAIVERS No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law. 39.2 PARTIAL INVALIDITY If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, - 119 - 123 validity or enforceability of the remaining provisions thereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. 40. NOTICES 40.1 COMMUNICATIONS IN WRITING Each communication to be made under the Finance Documents shall be made in writing and, unless otherwise stated, shall be made by fax or letter. 40.2 ADDRESSES Any communication or document to be made or delivered pursuant to the Finance Documents shall be made or delivered to the address or fax number (and the department or officer, if any, for whose attention the communication is made): 40.2.1 in the case of the Parent, the Original Obligors and the Agent, identified with its name below; 40.2.2 in the case of each Bank, notified in writing to the Agent prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee); 40.2.3 in the case of the Permitted Facilities Provider, in the Deed of Accession; and 40.2.4 in the case of each Additional Obligor, in the relevant Accession Memorandum, or to any substitute address, fax number or department or officer as the Parent, an Obligor, the Permitted Facilities Provider, or a Bank may notify to the Agent (or the Agent may notify to the Principal Borrower (on its own behalf and on behalf of the other Obligors), the Permitted Facilities Provider and the Banks, if a change is made by the Agent) by not less than five Business Days' notice. Any communication to be made to an Obligor (other than the Principal Borrower) by fax shall be made to the fax number identified with the Principal Borrower's name below. Any communication or document to be made or delivered to an Obligor (other than the Principal Borrower) shall be copied to the Principal Borrower. 40.3 DELIVERY Any communication or document to be made or delivered by one person to another under or in connection with the Finance Documents shall only be effective: 40.3.1 if by way of fax, when received in legible form; 40.3.2 if by way of letter, when left at the relevant address or, as the case may be, five days after being deposited in the post in a postage prepaid envelope addressed to such address; and - 120 - 124 40.3.3 if a particular department or officer is specified as part of the address details provided under Clause 40.2 (Addresses), if addressed to that department or officer, PROVIDED THAT any communication or document to be made or delivered to the Agent shall be effective only when actually received by its agency division and then only if the same is expressly marked for the attention of the department or officer identified with the Agent's signature below (or such other department or officer as the Agent shall from time to time specify for this purpose). 40.4 THE AGENT All notices from or to either the Parent or an Obligor shall be sent through the Agent. 40.5 ENGLISH LANGUAGE Each communication and document made or delivered by one party to another pursuant to the Finance Documents shall be in the English language or accompanied by a translation thereof into English certified (by an officer of the person making or delivering the same) as being a true and accurate translation thereof. 40.6 NOTIFICATION OF CHANGES Promptly upon receipt of notification, from the Parent or an Obligor, of a change of address or fax number pursuant to Clause 40.2 (Addresses) or changing its own address or fax number the Agent shall notify the other parties hereto of such change. 40.7 DEEMED RECEIPT BY THE OBLIGORS Any communication or document made or delivered to the Principal Borrower in accordance with Clause 40.3 (Delivery) shall be deemed to have been made or delivered to each of the Obligors. 41. COUNTERPARTS This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. 42. AMENDMENTS 42.1 AMENDMENTS Each of the parties hereto agrees that, if the Agent has the prior consent of an Instructing Group, the Agent, the Parent and the Obligors party to a Finance Document may from time to time agree in writing to amend such Finance Document or, as the case may be, the Agent may consent to or waive, prospectively or retrospectively, any of the requirements of such Finance Document and any amendments or waivers so agreed or consents so given shall be binding on all the Finance Parties and the Permitted Facilities Provider, PROVIDED THAT no such waiver or amendment shall subject any Finance Party or the Permitted Facilities Provider to any new or additional obligations without the consent of such Finance Party or, as the case may be, the Permitted Facilities Provider. - 121 - 125 42.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS An amendment or waiver which relates to: 42.2.1 Clause 32 (Sharing) or this Clause 42; 42.2.2 a change in the principal amount of or currency of any Advance, or deferral of any Original Term Repayment Date, Repayment Date or Term-Out Repayment Date; 42.2.3 a change in the Margin, the amount of any payment of principal, interest, fees or any other amount payable hereunder to any Finance Party or deferral of the date for payment thereof; 42.2.4 a release of any of the Security; 42.2.5 a Security Document, where such an amendment or waiver could affect the nature or scope of the property subject to the Security; 42.2.6 an increase in the commitment of a Bank; 42.2.7 a change to the Borrowers or Guarantors other than in accordance with Clause 35 (Additional Borrowers) or Clause 36 (Additional Guarantors); 42.2.8 Clause 2.4 (Banks' Obligations Several), Clause 2.5 (Banks' Rights Several), Clause 30.6 (Security Proceeds), Clause 30.7 (Application of Security Proceeds), Clause 35 (Additional Borrowers) or Clause 36 (Additional Guarantors); 42.2.9 the conditions set out in sub-clause 3.1.6 of Clause 3.1 (Drawdown Conditions for Original Term Advances) if (in respect of Original Term Advances made on the Acquisition Date) an Acquisition Event of Default or Acquisition Potential Event of Default which relates to an Acquisition Repeated Representation is continuing or (in the case of all other Original Term Advances) an Event of Default or Potential Event of Default which relates to a Repeated Representation or Clause 22.16 (Negative Pledge) is continuing; 42.2.10 the conditions set out in sub-clause 6.1.10 of Clause 6.1 (Drawdown Conditions for Revolving Advances) if an Event of Default or Potential Event of Default which relates to a Repeated Representation or Clause 22.16 (Negative Pledge) is continuing; 42.2.11 the definition of Instructing Group, Permitted Encumbrance or Potential Event of Default; or 42.2.12 any provision which contemplates the need for the consent or approval of all the Banks, shall not be made without the prior consent of all the Banks. - 122 - 126 42.3 EXCEPTIONS 42.3.1 Notwithstanding any other provisions hereof, the Agent shall not be obliged to agree to any such amendment or waiver if the same would: (a) amend or waive this Clause 42, Clause 26 (Costs and Expenses) or Clause 33 (The Agent, the Arrangers and the Banks); or (b) otherwise amend or waive any of the Agent's rights hereunder or subject the Agent or the Arrangers to any additional obligations hereunder. 42.3.2 Notwithstanding any other provisions hereof, the Permitted Facilities Provider's consent shall be required for any such amendment or waiver relating to Clause 30 (Payments) and/or Clause 32 (Sharing) if the same would have a material adverse effect on the Permitted Facilities Provider's rights and/or obligations under Clause 30 (Payments) and/or Clause 32 (Sharing). 43. GOVERNING LAW This Agreement is governed by English law. 44. JURISDICTION 44.1 ENGLISH COURTS The courts of England have exclusive jurisdiction to settle any dispute (a "DISPUTE") arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity). 44.2 CONVENIENT FORUM The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary. 44.3 NON-EXCLUSIVE JURISDICTION This Clause 44 is for the benefit of the Finance Parties only. As a result and notwithstanding Clause 44.1 (English Courts), it does not prevent any Finance Party from taking proceedings relating to a Dispute ("PROCEEDINGS") in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent Proceedings in any number of jurisdictions. 44.4 SERVICE OF PROCESS The Parent and each Original Obligor agrees that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be served on it: 44.4.1 in the case of the Parent, on NTL Group Limited at NTL House, Bartley Wood Business Park, Hook, Hampshire RG27 9XA or, if different, its registered office. - 123 - 127 44.4.2 in the case of each Original Obligor, on NTL Group Limited at NTL House, Bartley Wood Business Park, Hook, Hampshire RG27 9XA or, if different, its registered office. If the Parent or any Original Obligor ceases to have a place of business in Great Britain or, as the case may be, the appointment of the person mentioned in this Clause 43.4 ceases to be effective, the Parent or the relevant Original Obligor shall immediately appoint another person in England to accept service of process on its behalf in England. If the Parent or an Original Obligor fails to do so (and such failure continues for a period of not less than fourteen days), the Agent shall be entitled to appoint such a person by notice to the Parent or, as the case may be, the relevant Original Obligor. Nothing contained herein shall restrict the right to serve process in any other manner allowed by law. This Clause 43.4 applies to Proceedings in England and to Proceedings elsewhere. THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS AGREEMENT. - 124 - 128 SCHEDULE 1 THE ORIGINAL PARTIES PART A THE OBLIGORS ORIGINAL BORROWERS NAME OF ORIGINAL BORROWER JURISDICTION OF INCORPORATION Principal Borrower Switzerland Cablecom Management AG Switzerland Balcab AG Switzerland ORIGINAL GUARANTORS NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION Shareholder Switzerland Principal Borrower Switzerland Cablecom AG Switzerland Cablecom (Suisse Romande) SA Switzerland Coditel SA Switzerland Cablecom (Ticino) SA Switzerland Balcab AG Switzerland Swiss Online AG Switzerland Cablecom (Bern) AG Switzerland Cablecom Engineering AG Switzerland Cablecom (Mittelland) AG Switzerland Cablecom (Zentralschweiz) AG Switzerland Kilchenmann Holding AG Switzerland Nordex SA Switzerland Rera AG Immobiliengesellschaft Switzerland - 125 - 129 NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION Winter Kabelfernseh AG Switzerland Cable Signal Olten AG Switzerland Kilchenmann Kabelfernseh AG Switzerland Cablecom Media AG Switzerland Catec SV AG Switzerland Rediffusion AG Switzerland Cablecom Management AG Switzerland - 126 - 130 PART B THE OPERATING COMPANIES The Principal Borrower CC AG Cablecom (Mittelland) AG Cablecom (Zentralschweiz) AG Cablecom (Bern) AG Cablecom (Suisse Romande) SA Cablecom Engineering SA Cablecom Media SA Cablecom (Ticino) SA Kilchenmann Kabelfernseh AG Balcab AG Rediffusion AG Coditel SA Swiss Online AG Cablecom Management AG - 127 - 131 PART C THE BANKS
TERM REVOLVING BANK COMMITMENT CHF COMMITMENT CHF LEAD ARRANGERS The Chase Manhattan Bank 151,883,436 78,754,374 Morgan Stanley Senior Funding, Inc. 151,883,436 78,754,374 ARRANGERS Bank of America, N.A. 121,506,751 63,003,500 Bayerische Hypo- und Vereinsbank 121,506,751 63,003,500 Aktiengesellschaft, London Branch Paribas 121,506,751 63,003,500 CIBC World Markets plc 121,506,751 63,003,500 Citibank, N.A. 121,506,751 63,003,500 Deutsche Bank AG London 121,506,751 63,003,500 Dresdner Bank Luxembourg S.A. 121,506,751 63,003,500 Morgan Guaranty Trust Company of 121,506,751 63,003,500 New York The Royal Bank of Scotland plc 121,506,751 63,003,500 Societe Generale 121,506,751 63,003,500 Westdeutsche Landesbank Girozentrale 121,506,751 63,003,500 CO-ARRANGERS ABC International Bank plc 78,979,388 40,952,275 Banca Nazionale del Lavoro S.p.A., 78,979,388 40,952,275 London Branch Bankgesellschaft Berlin AG 78,979,388 40,952,275 The Governor and Company of the 78,979,388 40,952,275 Bank of Scotland Bayerische Landesbank Girozentrale 78,979,388 40,952,275 Credit Lyonnais 78,979,388 40,952,275
- 128 - 132
TERM REVOLVING BANK COMMITMENT CHF COMMITMENT CHF Credit Suisse 78,979,388 40,952,275 The Dai-Ichi Kangyo Bank, Limited 78,979,388 40,952,275 Dexia Project and Public Finance 78,979,388 40,952,275 International Bank DG Bank Deutsche 52,637,924 27,293,739 Genossenschaftsbank AG Cooperative Centrale Raiffeisen- 26,341,463 13,658,537 Boerenleenbank BA (trading as Rabobank International) DLJ Capital Funding, Inc. 78,979,388 40,952,275 MeesPierson N.V. 78,979,388 40,952,275 Scotiabank Europe plc 78,979,388 40,952,275 LEAD MANAGER The Fuji Bank, Limited 32,926,829 17,073,171 ---------------- ---------------- CHF2,700,000,000 CHF1,400,000,000
- 129 - 133 SCHEDULE 2 FORM OF TRANSFER CERTIFICATE To: Chase Manhattan International Limited TRANSFER CERTIFICATE relating to the agreement (as from time to time amended, varied, novated or supplemented, the "CREDIT AGREEMENT") dated 28 March 2000 whereby CHF4,100,000,000 term and revolving loan facilities were made available to a group of borrowers including the Principal Borrower by a group of banks on whose behalf Chase Manhattan International Limited acted as agent in connection therewith. 1. Terms defined in the Credit Agreement shall, subject to any contrary indication, have the same meanings herein. The terms Bank, Transferee and Portion Transferred are defined in the schedule hereto. 2. The Bank (i) confirms that the details in the schedule hereto under the heading "BANK'S PARTICIPATION IN THE ORIGINAL TERM FACILITY", "ORIGINAL TERM ADVANCES", "BANK'S PARTICIPATION IN THE REVOLVING FACILITY" and ["REVOLVING ADVANCES"/"TERM-OUT ADVANCES"] accurately summarises its participation in the Credit Agreement and the Interest Period or Term of any existing Advances and (ii) requests the Transferee to accept and procure the transfer by novation to the Transferee of the Portion Transferred (specified in the schedule hereto) of its Term Commitment and/or Revolving Commitment and/or its participation in such Advance(s) by counter-signing and delivering this Transfer Certificate to the Agent at its address for the service of notices specified in the Credit Agreement. 3. The Transferee hereby requests the Agent to accept this Transfer Certificate as being delivered to the Agent pursuant to and for the purposes of Clause 34.5 (Transfers by Banks) of the Credit Agreement so as to take effect in accordance with the terms thereof on the Transfer Date or on such later date as may be determined in accordance with the terms thereof. 4. The Transferee confirms that it has received a copy of the Credit Agreement together with such other information as it has required in connection with this transaction and that it has not relied and will not hereafter rely on the Bank to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information and further agrees that it has not relied and will not rely on the Bank to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Parent or the Obligors. 5. The Transferee hereby undertakes with the Bank and each of the other parties to the Credit Agreement that it will perform in accordance with their terms all those obligations which by the terms of the Finance Documents will be assumed by it after delivery of this Transfer Certificate to the Agent and satisfaction of the conditions (if any) subject to which this Transfer Certificate is expressed to take effect. - 130 - 134 6. The Bank makes no representation or warranty and assumes no responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any document relating thereto and assumes no responsibility for the financial condition of the Obligors or for the performance and observance by the Obligors of any of their respective obligations under the Finance Documents or any document relating thereto and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded. 7. The Bank hereby gives notice that nothing herein or in the Finance Documents (or any document relating thereto) shall oblige the Bank to (a) accept a re-transfer from the Transferee of the whole or any part of its rights, benefits and/or obligations under the Finance Documents transferred pursuant hereto or (b) support any losses directly or indirectly sustained or incurred by the Transferee for any reason whatsoever including the non-performance by any Obligor or any other party to the Finance Documents (or any document relating thereto) of its obligations under any such document. The Transferee hereby acknowledges the absence of any such obligation as is referred to in (a) or (b) above. 8. This Transfer Certificate and the rights, benefits and obligations of the parties hereunder shall be governed by and construed in accordance with English law. THE SCHEDULE 1. Bank: 2. Transferee: 3. Transfer Date: 4. Bank's Participation in the Original Portion Transferred Term Facility: Bank's Term Commitment 5. Original Term Advance(s): Interest Period Portion Transferred Amount of Bank's Participation 6. Bank's Participation in the Revolving Portion Transferred Facility: Bank's Revolving Commitment 7. [Revolving Advance(s)/ [Term and Repayment Portion Transferred Term-Out Advances]: Date/Interest Period] Amount of Bank's Participation
- 131 - 135 [Transferor Bank] [Transferee Bank] By: By: Date: Date: ________________________________________________________________________________ ADMINISTRATIVE DETAILS OF TRANSFEREE Address: Contact Name: Account for Payments: Telex: Fax: Telephone: ________________________________________________________________________________ [NOTE: EACH TRANSFEREE SHOULD, AT THE SAME TIME AS EXECUTING THIS TRANSFER CERTIFICATE, EXECUTE ACCESSION DOCUMENTS FOR THE VARIOUS SECURITY DOCUMENTS.] - 132 - 136 SCHEDULE 3 CONDITIONS PRECEDENT (A) CORPORATE DOCUMENTS 1. In relation to the Parent and each Original Obligor: (a) a copy, certified as at the date of this Agreement a true and up-to-date copy by an Authorised Signatory of the Parent or, as the case may be, the relevant Original Obligor, of the constitutional documents of the Parent or such Original Obligor; (b) a copy, certified as at the date of this Agreement a true and up-to-date copy by an Authorised Signatory of the Parent or, as the case may be, the relevant Original Obligor, of a board resolution of the Parent or such Original Obligor approving the execution, delivery and performance of the Finance Documents to which the Parent or such Original Obligor is a party and the terms and conditions thereof and authorising a named person or persons to sign such Finance Documents and any documents to be delivered by the Parent or such Original Obligor pursuant thereto; and (c) a certificate of an Authorised Signatory of the Parent or, as the case may be, the relevant Original Obligor setting out the names and signatures of the persons authorised to sign, on behalf of the Parent or such Original Obligor, the Finance Documents to which the Parent or such Original Obligor is a party and any documents to be delivered by the Parent or such Original Obligor pursuant thereto. 2. In relation to NTL CV1: (a) a copy of an up-to-date extract ("uittreksel") from the relevant Dutch Chamber of Commerce and a copy of the executed agreement of association; (b) a copy of a resolution of the partners approving the general partner to enter into the Finance Documents on behalf of NTL CV1, and approving the separate contributions and revised Schedule B; (c) a certificate signed by the general partner of NTL CV1 setting out the names and signatures of the persons authorised to sign, on behalf of NTL CV1, the Finance Documents to which NTL CV1 is a party and any documents to be delivered by NTL CV1 pursuant thereto. 3. The Group Structure Chart (showing all members of the Group, assuming that the Acquisition has completed). 4. To the extent not delivered under A1, a copy, certified (to the best of such Authorised Signatory's knowledge and belief) as at the date of this Agreement a true and up-to- - 133 - 137 date copy by an Authorised Signatory of the relevant Group member of the constitutive documents of each Group member whose shares are secured by the Share Pledges. (B) ACCOUNTS AND REPORTS 1. The Business Plan. 2. The Accountant's Letter, addressed to the Finance Parties. 3. Copies, certified true copies by an Authorised Signatory of the Principal Borrower, of the Original Financial Statements (other than those referred to in paragraph (a) of the definition thereof). 4. The Vendor's audited consolidated financial statements for its financial year ended 31 December 1999. (C) ACQUISITION DOCUMENTS, HIVEDOWN AND RELATED MATTERS 1. A copy, certified by an Authorised Signatory of the Parent as true, complete and up-to-date, of each Acquisition Document. 2. Evidence that the Acquisition has completed or, immediately following the first Original Term Advance hereunder, will be completed in accordance with the terms of the Acquisition Documents and that no right or entitlement of the Parent or any member of either the NTL Inc. Holding Group or the Group (whether to receive documents or otherwise) thereunder has been waived or modified except with the written consent of the Agent, together with written confirmation from the Parent that the Acquisition Documents contain the full agreement of the parties thereto as to the matters set out therein (save for any amendments to the Acquisition Documents disclosed in the Disclosure Letter). 3. Evidence that, immediately following the completion of the Acquisition neither the Shareholder nor any member of the Restricted Group shall have (or will have) any Financial Indebtedness outstanding (other than Permitted Financial Indebtedness) and that all Encumbrances (other than Permitted Encumbrances) have been, or will be, discharged. 4. A Certificate of an Authorised Signatory of the Principal Borrower confirming that all necessary consents, licences, authorisations and approvals in relation to the transactions constituted by the Acquisition Documents and the Finance Documents have been obtained, such a certificate having certified copies of the following annexed to it: (a) the Licences necessary for the Cablecom Business to conduct its business as at the date of the completion of the Acquisition (other than any Licences referred to in paragraph (c) of the definition thereof, where such Licences are not material in the context of the Cablecom Business as a whole); (b) the approval of the Acquisition by the Swiss Federal Office for Communication; - 134 - 138 (c) clearance from the Swiss Competition Commission (or a confirmation from the Parent's Swiss counsel that no such clearance is required in connection with the Acquisition). 5. Copies, certified by an Authorised Signatory of the Parent as true, complete and up-to-date, of all of the documents relating to the Hivedown, evidencing that immediately following the making of the first Original Term Advance hereunder in order to complete the Acquisition the Principal Borrower and CC AG will be wholly owned subsidiaries of the Shareholder and that the Principal Borrower, CC AG and the Principal Borrower's subsidiaries will constitute the Cablecom Business. 6. Evidence satisfactory to the Agent that the Group has (or, within a reasonable period following the completion of the Acquisition, will have) in existence, insurance policies in relation to the Cablecom Business against those risks and at those levels which are usual for companies carrying on a business such as that carried on by the Cablecom Business at the completion of the Acquisition. 7. Evidence satisfactory to the Agent that an aggregate amount of at least CHF3,100,000,000 has been, pursuant to and in accordance with the Acquisition Documents and the Hivedown, contributed by the Parent towards the Acquisition consideration. (D) SECURITY DOCUMENTS AND RELATED DOCUMENTATION 1. The Security Documents, duly executed and delivered by the relevant Original Obligors, in the form of public deeds where required by applicable law. 2. All share certificates and, where applicable, the shareholders' register and an approving board resolution (except in the case of an approving board resolution where indicated by Niederer Kraft & Frey that this is unnecessary for a particular Group member) in relation to the certificated shares in Group members which have been pledged pursuant to the Share Pledges. 3. The Subordination Deed, duly executed by NTL SPV LLC as sole general partner of CV1 and the Principal Borrower. (E) LEGAL OPINIONS Legal opinions from the following: (a) Clifford Chance, London, the Agent's English counsel; (b) Niederer Kraft and Frey, the Agent's Swiss counsel; (c) Skadden, Arps, Slate, Meagher & Flom LLP, the Parent's Delaware counsel or (to the extent acceptable to the Agent) other US Counsel; (d) Clifford Chance, Amsterdam, the Agent's Dutch counsel; (e) Dutch counsel to the Parent, - 135 - 139 in each case in substantially the form distributed to the Banks prior to the signing of this Agreement. (F) MISCELLANEOUS 1. The fees letters referred to in Clause 25.6 (Agency and Other Fees). 2. Written confirmation from Skadden, Arps, Slate, Meagher & Flom LLP, or other US counsel, that (a) the Parent's entry into of this Agreement, the Acquisition Documents and (b) the entry into by other members of the NTL Inc. Holding Group and members of the Group of the Acquisition Documents, the documentation relating to the Hivedown and the Finance Documents will not breach (i) the Parent's constitutive documents and (ii) the indentures and other documentation relating to the NTL Notes issued by any member of the NTL Inc. Group or the NTL Inc. Holding Group. 3. Evidence that the party or parties specified in Clause 44.4 (Service of Process) have agreed to act as the agents of the Parent and of each Original Obligor for the service of process in England. 4. Evidence that the fees, costs and expenses required to be paid on or about the date of this Agreement by either the Parent or the Principal Borrower pursuant to Clause 25.6 (Agency and Other Fees) and Clause 26.2 (Stamp Taxes) have been paid or will be paid immediately following the completion of the Acquisition. - 136 - 140 SCHEDULE 4 NOTICE OF DRAWDOWN From: [Borrower] To: Chase Manhattan International Limited Dated: Dear Sirs, 1. We refer to the agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and made between a group of borrowers including Cablecom (Ostschweiz) AG, Chase Manhattan International Limited as agent and the financial institutions named therein as Banks. Terms defined in the Credit Agreement shall have the same meaning in this notice. 2. This notice is irrevocable. 3. We hereby give you notice that, pursuant to the Credit Agreement and on [date of proposed Advance], we wish to borrow a [Term]/[Revolving] Advance in the amount of CHF[ ] upon the terms and subject to the conditions contained therein. 4. [We would like this Advance to have a first Interest Period of [ ] months' duration.]* or [We would like this Advance to have a Term of [ ] months' duration.]** 5. We confirm that, at the date hereof, the [Repeated Representations/ Acquisition Repeated Representations]*** are true in all material respects and no [Acquisition Event of Default or Acquisition Potential Event of Default]***/Event of Default [or Potential Event of Default]]**** is continuing. 6. The proceeds of this drawdown should be credited to [insert account details]. Yours faithfully ........................................ Authorised Signatory for and on behalf of [Insert name of Borrower] * If the Notice of Drawdown is for a Term Advance, insert only if there are no outstanding Term Advances [or less than [ ] Term Advances would then be outstanding]. ** Delete as appropriate. *** Refer to Acquisition Repeated Representations, Acquisition Events of Default and Acquisition Potential Events of Default for Original Term Advances to be made on the Acquisition Date. -137- 141 **** Delete for a Rollover Advance. -138- 142 SCHEDULE 5 FORM OF COMPLIANCE CERTIFICATE To: Chase Manhattan International Limited Date: Dear Sirs, We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and made between a group of borrowers including Cablecom (Ostschweiz) AG, Chase Manhattan International Limited as agent, the financial institutions defined therein as Banks and others. Terms defined in the Credit Agreement shall bear the same meaning herein. We confirm that: 1. The ratio of the Senior Debt of the Group on [Quarter Date] to the Annualised EBITDA of the Restricted Group for the period ended on [Quarter Date] was [ ]:1. 2. [The ratio of the EBITDA of the Group for the six months ended on [Quarter Date] to the Consolidated Finance Charges of the Restricted Group for that six month period was [ ]:1.] 3. [The ratio of the Annualised EBITDA of the Restricted Group for the period ended on [Quarter Date] to the Consolidated Pro-Forma Debt Service of the Restricted Group as at [Quarter Date] was [ ]:1.] On the basis of above, we confirm that the Margin in relation to any Advance made or Interest Period which commences after your receipt of this Compliance Certificate will be [ ] per cent. per annum. We also confirm that: 1. The aggregate EBITDA of the Guarantors for the 12 month period ending on [Quarter Date] equalled or exceeded 95% of the consolidated EBITDA of the Restricted Group for such 12 month period. 2. The amount of Available Excess Cash Flow as at [ ] was [ ]. Signed: -------------------------------- -------------------------------- Director Director of Cablecom (Ostschweiz) AG of Cablecom (Ostschweiz) AG -139- 143 SCHEDULE 6 FORM OF BORROWER ACCESSION MEMORANDUM To: Chase Manhattan International Limited From: [Subsidiary] and Cablecom (Ostschweiz) AG Dated: Dear Sirs, 1. We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and made between a group of borrowers including Cablecom (Ostschweiz) AG (the "PRINCIPAL BORROWER"), Chase Manhattan International Limited as agent, the financial institutions defined therein as Banks and others. 2. Terms defined in the Credit Agreement shall bear the same meaning herein. 3. The Principal Borrower requests that [Subsidiary] become an Additional Borrower pursuant to Clause 35.1 (Request for Additional Borrower) of the Credit Agreement. 4. [Subsidiary] is a company duly organised under the laws of [name of relevant jurisdiction]. 5. [Subsidiary] confirms that it has received from the Principal Borrower a true and up-to-date copy of the Credit Agreement. 6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all the obligations expressed to be undertaken under the Credit Agreement by a Borrower and agrees that it shall be bound by the Credit Agreement in all respects as if it had been an original party thereto as an Original Borrower. 7. The Principal Borrower confirms that, if [Subsidiary] is accepted as an Additional Borrower, its guarantee obligations and the guarantee obligations of the other Guarantors pursuant to Clause 24 (Guarantee and Indemnity) of the Credit Agreement will apply to all the obligations of [Subsidiary] under the Finance Documents in all respects in accordance with the terms of the Credit Agreement. 8. The Principal Borrower: (a) repeats the Repeated Representations; and (b) confirms that no Event of Default or Potential Event of Default is continuing or would occur as a result of [Subsidiary] becoming an Additional Borrower. -140- 144 9. [Subsidiary] makes the representations and warranties set out in Clause 19.1 (Status) to Clause 19.11 (Legal and Beneficial Owner). 10. [Subsidiary's] administrative details are as follows: Address: Fax No.: 11. PROCESS AGENT [Subsidiary] agrees that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be served on it at [address of Subsidiary's place of business in England] or at any address in Great Britain at which process may be served on it in accordance with Part XXIII of the Companies Act 1985]/[on name of process agent in England at address of process agent or, if different, its registered office. If [[Subsidiary] ceases to have a place of business in Great Britain]/[the appointment of the person mentioned above ceases to be effective], [Subsidiary] shall immediately appoint another person in England to accept service of process on its behalf in England. If it fails to do so (and such failure continues for a period of not less than fourteen days), the Agent shall be entitled to appoint such a person by notice. Nothing contained herein shall restrict the right to serve process in any other manner allowed by law. This applies to Proceedings in England and to Proceedings elsewhere.] 12. This Memorandum is governed by English law. CABLECOM (OSTSCHWEIZ) AG [Subsidiary] By: By: ------------------------------ ------------------------------- -141- 145 SCHEDULE 7 FORM OF GUARANTOR ACCESSION MEMORANDUM To: Chase Manhattan International Limited From: [Subsidiary] and Cablecom (Ostschweiz) AG Dated: Dear Sirs, 1. We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and made between a group of borrowers including Cablecom (Ostschweiz) AG (the "PRINCIPAL BORROWER"), Chase Manhattan International Limited as agent, the financial institutions defined therein as Banks and others. 2. Terms defined in the Credit Agreement shall bear the same meaning herein. 3. The Principal Borrower requests that [Subsidiary], a subsidiary of the Principal Borrower, become an Additional Guarantor pursuant to Clause 36.1 (Request for Additional Guarantor) of the Credit Agreement. 4. [Subsidiary] is a company duly organised under the laws of [name of relevant jurisdiction]. 5. [Subsidiary] confirms that it has received from the Principal Borrower a true and up-to-date copy of the Credit Agreement and a list of the Borrowers as at the date hereof. 6. [Subsidiary] undertakes, upon its becoming a Guarantor, to perform all the obligations expressed to be undertaken under the Credit Agreement by a Guarantor and agrees that it shall be bound by the Credit Agreement in all respects as if it had been an original party thereto as an Original Guarantor. 7. The Principal Borrower: (a) repeats the Repeated Representations; and (b) confirms that no Event of Default or Potential Event of Default is continuing or would occur as a result of [Subsidiary] becoming an Additional Guarantor. 8. [Subsidiary] makes the representations and warranties set out in Clause 19.1 (Status) to Clause 19.11 (Legal and Beneficial Owner). 9. [Subsidiary's] administrative details are as follows: Address: Fax No.: -142- 146 10. [PROCESS AGENT* [Subsidiary] agrees that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be served on it at [address of Subsidiary's place of business in England] or at any address in Great Britain at which process may be served on it in accordance with Part XXIII of the Companies Act 1985] / [on name of process agent in England at address of process agent or, if different, its registered office. If [Subsidiary] ceases to have a place of business in Great Britain]/[ the appointment of the person mentioned above ceases to be effective], [Subsidiary] shall immediately appoint another person in England to accept service of process on its behalf in England. If it fails to do so (and such failure continues for a period of not less than fourteen days), the Agent shall be entitled to appoint such a person by notice. Nothing contained herein shall restrict the right to serve process in any other manner allowed by law. This applies to Proceedings in England and to Proceedings elsewhere.] 11. This Memorandum is governed by English law. This Memorandum is executed and delivered as a deed by [name of Additional Guarantor] ........................................... Director of Additional Guarantor ........................................... Director/Secretary of Additional Guarantor] or [The Common Seal of [Additional Guarantor] was affixed to this deed in the presence of ................................ Director of Additional Guarantor ................................ Director/Secretary of Additional Guarantor** [Insert name of Parent] By: ....................................... * This clause is required only if the Additional Guarantor is not incorporated in England or Wales. ** Delete as appropriate. If the company is not incorporated in England or Wales, alternate form of execution may be more appropriate. -143- 147 SCHEDULE 8 ADDITIONAL CONDITIONS PRECEDENT 1. A copy, certified as at the date of the relevant Accession Memorandum a true and up-to-date copy by an Authorised Signatory of the proposed Additional Obligor, of the constitutional documents of such proposed Additional Obligor. 2. A copy, certified as at the date of the relevant Accession Memorandum a true and up-to-date copy by an Authorised Signatory of the proposed Additional Obligor, of a board resolution of such proposed Additional Obligor approving the execution and delivery of an Accession Memorandum, the accession of such proposed Additional Obligor to this Agreement and the performance of its obligations under the Finance Documents and authorising a named person or persons to sign such Accession Memorandum, any other Finance Document and any other documents to be delivered by such proposed Additional Obligor pursuant thereto. 3. If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales and if deemed either necessary or desirable by the Agent's counsel in the jurisdiction of incorporation of the proposed Additional Obligor, a copy, certified as at the date of the relevant Accession Memorandum a true and up-to-date copy by an Authorised Signatory of the proposed Additional Obligor, of the resolutions of the shareholders of such Additional Obligor authorising the execution and delivery of an Accession Memorandum, the accession of such Additional Obligor to this Agreement and the performance of its obligations under the Finance Documents. 4. A certificate of an Authorised Signatory of the proposed Additional Obligor setting out the names and signatures of the person or persons authorised to sign, on behalf of such proposed Additional Obligor, the Accession Memorandum, any other Finance Documents and any other documents to be delivered by such proposed Additional Obligor pursuant thereto. 5. If deemed either necessary or desirable by the Agent's counsel in the jurisdiction of incorporation of the proposed Additional Obligor, a certificate of an Authorised Signatory of the proposed Additional Obligor confirming that the utilisation of the Facilities would not breach any restriction of its borrowing powers (or, as the case may be, its guaranteeing powers). 6. If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, a copy, certified a true copy by or on behalf of the proposed Additional Obligor, of each such law, decree, consent, licence, approval, registration or declaration as is, in the opinion of counsel to the Banks, necessary to render the relevant Accession Memorandum legal, valid, binding and enforceable, to make such Accession Memorandum admissible in evidence in the proposed Additional Obligor's jurisdiction of incorporation and to enable the proposed Additional Obligor to perform its obligations thereunder and under the other Finance Documents. -144- 148 7. Copies, certified true copies by an Authorised Signatory of the proposed Additional Obligor, of its latest annual audited consolidated financial statements and any subsequent interim consolidated financial statements (to the extent such are available). 8. An opinion of Clifford Chance, solicitors to the Agent, in form and substance satisfactory to the Agent. 9. A legal opinion of the Agent's legal advisors in the jurisdiction in which such Additional Obligor is incorporated. 10. Evidence that the process agent specified in the relevant Accession Memorandum has agreed to act as its agent for the service of process in England. 11. If the proposed Additional Obligor is to be an Additional Borrower, a certificate from an Authorised Signatory of the Principal Borrower confirming that, based on the most recent Budget delivered to the Agent pursuant to Clause 20.5 (Budgets), the proposed Additional Borrower: (a) together with its direct and indirect holding companies which are Guarantors, will have projected income (including, if relevant, dividend receipts, and having taken into account projected tax liabilities) sufficient to enable it to service, in full, all its projected indebtedness under the Facilities; and (b) has sufficient taxable income to ensure full tax deductibility on all interest payments to be made by it under the Facilities. -145- 149 SCHEDULE 9 FORM OF RESIGNATION NOTICE To: Chase Manhattan International Limited From: Cablecom (Ostschweiz) AG Dated: Dear Sirs, 1. We refer to an agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and made between a group of borrowers including Cablecom (Ostschweiz) AG (the "PRINCIPAL BORROWER"), Chase Manhattan International Limited as agent, the financial institutions defined therein as Banks and others. 2. Terms defined in the Credit Agreement shall bear the same meaning herein. 3. [We declare that [name of Borrower] is under no actual or contingent obligation under any Finance Document in its capacity as a Borrower.]* 4. Pursuant to Clause [35.3 (Resignation of a Borrower)]/[36.3 (Resignation of a Guarantor) we hereby request that [name of Obligor] shall cease to be a [Borrower]/[Guarantor] under the Credit Agreement. 5. [We hereby confirm that the aggregate EBITDA of the remaining Guarantors for the last financial year of the Principal Borrower equalled or exceeded 95% of the consolidated EBITDA of the Restricted Group for such a financial year.]** Yours faithfully CABLECOM (OSTSCHWEIZ) AG * Delete if notice is for a Guarantor. ** Delete if notice is for a Borrower. -146- 150 SCHEDULE 10 MANDATORY COSTS 1. The Mandatory Cost Rate is an addition to the interest rate to compensate Banks for the cost of compliance with (a) the requirements of the Financial Services Authority (or any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank. 2. On the first day of each Interest Period or Term, as the case may be, (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the "ADDITIONAL COSTS RATE") for each Bank, in accordance with the formula set out below. The Mandatory Cost Rate will be calculated by the Agent as a weighted average of such Bank's additional costs rates rounded to five decimal places (weighted in proportion to the percentage participation of each Bank in the relevant Advance) and will be expressed as a percentage rate per annum. 3. The additional costs rate for any Bank lending from a Facility Office in a Participating Member State will be the percentage notified by that Bank to the Agent as the cost of complying with the minimum reserve requirements of the European Central Bank. 4. The additional cost rate for any Bank lending from a Facility Office in the United Kingdom will be calculated by the Agent as follows: F X 0.01 ---------- per cent. per annum. 300 Where F is the rate of charge payable by that Bank to the Financial Services Authority pursuant to the Fee Regulations (but, for this purpose, ignoring any minimum fee required pursuant to the Fee Regulations) and expressed in pounds per (pound)1,000,000 of the Fee Base of that Bank. 5. For the purposes of this Schedule: (a) "FEE REGULATIONS" means the Banking Supervision (Fees) Regulations 1999 or such other law as may be in force from time to time in respect of the payment of fees for banking supervision; and (b) "FEE BASE" has the meaning given to it, and will be calculated in accordance with, the Fee Regulations. 6. Each Bank shall supply any information required by the Agent for the purpose of calculating its additional costs rate. In particular, but without limitation, each Bank shall supply the following information in writing on or prior to the date on which it becomes a Bank: (a) its jurisdiction of incorporation and the jurisdiction of its Facility Office; and -147- 151 (b) such other information that the Agent may reasonably require for such purpose. Each Bank shall promptly notify the Agent in writing of any change to the information provided by it pursuant to this paragraph. 7. The rates of charge of each Bank for the purpose of F above shall be determined by the Agent based upon the information supplied to it pursuant to paragraph 6 above and on the assumption that unless a Bank notifies the Agent to the contrary, each Bank's obligations in relation to the Fee Regulations are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office. The Agent shall have no liability to any person if such determination results in an additional costs rate which over or under compensates any Bank and shall be entitled to assume that the information provided by any Bank pursuant to paragraph 6 above is true and correct in all respects. 8. The Agent shall distribute the additional amounts received pursuant to the Mandatory Cost Rate to the Banks on basis of the additional cost rate incurred by each Bank, as calculated in accordance with the above formula and based on the information provided by each Bank pursuant to paragraph 6 above. 9. Any determination by the Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost Rate, an additional costs rate or any amount payable to a Bank shall, in the absence of manifest error, be conclusive and binding on all of the parties hereto. 10. The Agent may from time to time, after consultation with the Principal Borrower (on its own behalf and on behalf of the other Borrowers) and the Banks, determine and notify to all parties any amendments or variations which are required to be made to this Schedule in order to comply with any charge in law, regulation or any requirements from time to time imposed by the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all the parties hereto. -148- 152 SCHEDULE 11 CONFIDENTIALITY UNDERTAKING TO: NTL Inc. and each of its subsidiaries including each person comprised in the CableCom Business (as defined below) [Date] Dear Sirs We refer to the CHF 4,100,000,000 credit agreement dated o March 2000 between NTL Incorporated as parent, Chase Manhattan plc and Morgan Stanley Senior Funding, Inc. as arrangers, Chase Manhattan International Limited as agent and others (the "FACILITY Agreement"). Capitalised terms used in this letter shall, unless otherwise stated, have the meaning given to them in paragraph 11 below. In consideration of you agreeing to certain information being made available to us, by our signature of this letter we agree as follows: 1. Confidentiality Undertaking We undertake (a) to keep the Confidential Information confidential and not to disclose it to anyone except as provided for by paragraph 2 below and to ensure that the Confidential Information is protected with security measures and a degree of care that would apply to our own confidential information, (b) to use the Confidential Information only for the Permitted Purpose and (c) to use all reasonable endeavours to ensure that any person to whom we pass any Confidential Information (unless disclosed under paragraph 2 (c) below) acknowledges and complies with the provisions of this letter as if that person were also a party to it (and so bound by its terms in your favour). 2. Permitted Disclosure You agree that we may disclose Confidential Information: (a) to any other bank which becomes (or is considering becoming) a bank under the Facility Agreement and their officers, directors, employees and professional advisers only to the extent necessary for the Permitted Purpose and so long as any such other bank has addressed and delivered a letter to you in substantially the same form as this letter; (b) subject to us procuring that the following comply with the terms of this letter, to other members of the Group and their officers, directors, employees and professional advisers, in each case to the extent necessary for the Permitted Purpose, and to their auditors; -149- 153 (c) (i) where requested or required by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body, (ii) where required by the rules of any stock exchange on which the shares or other securities of any member of the Group are listed or (iii) where required by the laws or regulations of any country with jurisdiction over the affairs of any member of the Group; and (d) to our officers, directors, employees, professional advisers, in each case to the extent necessary for the Permitted Purpose, and to our auditors to the extent necessary for auditing our business. 3. Notification of Required or Unauthorised Disclosure We agree (to the extent permitted by law) to inform you promptly of the full circumstances of any disclosure under paragraph 2(c) or upon becoming aware that Confidential Information has been disclosed in breach of this letter. 4. Return of Copies If (a) you so request in writing and (b) we do not become or cease to be a bank under the Facility Agreement, we shall promptly return all Confidential Information supplied to us by you, the Agent, the Arrangers and/or any Bank and destroy or permanently erase all copies of Confidential Information made by us and use all reasonable endeavours to ensure that anyone to whom we have supplied any Confidential Information destroys or permanently erases such Confidential Information and any copies made by them, in each case save to the extent that we or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with internal policy, or where the Confidential Information has been disclosed under paragraph 2(c) above. 5. Continuing Obligations The obligations in this letter are continuing and, in particular, shall survive the termination of any discussions or negotiations between you and us or us and any Bank. Notwithstanding the previous sentence, the obligations in this letter shall cease (without prejudice to any antecedent breach of this letter) twelve months after we have returned all Confidential Information supplied to us by you, the Agent, the Arrangers and/or any Bank and destroyed or permanently erased all copies of Confidential Information made by us (other than any such Confidential Information or copies which have been disclosed under paragraph 2 above (or which, pursuant to paragraph 4 above, are not required to be returned or destroyed)). 6. Consequences of Breach We acknowledge and agree that you may be irreparably harmed by the breach of the terms hereof and damages may not be an adequate remedy; you may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this letter by us. 7. No Waiver; Amendments, etc This letter sets out the full extent of our obligations of confidentiality owed to the addressees of this letter in relation to the information the subject of this letter. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise of any -150- 154 right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privileges hereunder. The terms of this letter and our obligations hereunder may only be amended or modified by written agreement between us. 8. Inside Information We acknowledge that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation relating to insider dealing. 9. Nature of Undertakings The undertakings given by us under this letter are given (without implying any fiduciary obligations on your part) to and for the benefit of each member of the NTL group (including, each person comprised in the CableCom Business). 10. Governing Law and Jurisdiction This letter (including the agreement constituted by your acknowledgement of its terms) shall be governed by and construed in accordance with the laws of England and we submit to the non-exclusive jurisdiction of the English courts. 11. Definitions In this letter: "ACQUISITION" means the acquisition by certain members of the NTL Inc. group of the Cablecom Business. "AGENT" means Chase Manhattan International Limited. "ARRANGERS" means Chase Manhattan plc and Morgan Stanley Senior Funding, Inc. "BANK" means any bank or financial institution which is, at any time, party to the Facility Agreement as a "Bank". "CABLECOM BUSINESS" means the subsidiaries of Cablecom Holding AG, together with certain other assets and liabilities. "CONFIDENTIAL INFORMATION" means any information relating to any member of the NTL Inc. group, any person comprised in the CableCom Business, the Information Memorandum, the Facility Agreement and/or the Acquisition provided to us by you, any of your affiliates or advisers, the Agent, the Arrangers and/or any Bank (or any affiliates or advisers of any Bank), in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that (a) is or becomes public knowledge other than as a direct or indirect result of any breach of this letter or (b) is known by us before the date the information is disclosed to us by you or any of your affiliates or advisers, the Agent, the Arrangers and/or any Bank (or any affiliates or advisers of any Bank) or is obtained by us thereafter, other than from a source which is connected with the NTL Inc. group or any person comprised in the CableCom Business and which, in either case, as far as we are aware, has not been obtained in violation of, and is not otherwise subject to, any obligation of confidentiality. -151- 155 "GROUP" means us, each of our holding companies and subsidiaries and each subsidiary of each of our holding companies (as each such term is defined in the Companies Act 1985). "INFORMATION MEMORANDUM" means the information memorandum dated February 2000, relating to the Acquisition and the Cablecom Business, prepared and distributed by the Arrangers. "PERMITTED PURPOSE" means: (a) in respect of a person who is considering and evaluating whether to participate in the Facility Agreement as a Bank, such consideration and evaluation; (b) in respect of a person who is a party to the Facility Agreement as a Bank, its continued participation as a Bank; or (c) in respect of a person who has ceased to participate in the Facility Agreement as a Bank, the maintenance by such a person of a record of its participation. Please sign and return the enclosed copy of this letter to acknowledge your consent to the terms and conditions hereof. Yours faithfully .................................. For and on behalf of [insert name of bank or other ending institution] We agree to the above. .................................. For and on behalf of NTL INC. Date: -152- 156 SCHEDULE 12 EXISTING MORTGAGES
MAXIMUM MATURITY MORTGAGOR AMOUNT OF MEMBER OF THE INDEBTEDNESS RESTRICTED ASSETS SUBJECT TO MORTGAGOR CAN GROUP MORTGAGEE AN ENCUMBRANCE OWE (CHF) MATURITY - ------------- --------------- ------------------- ------------- ---------- Principal Graubundner Building at 671,000 31/12/2006 Borrower KB Commercialstrasse 23, Chur Rera AG Graubundner Building at 1,200,000 None KB Steinbockstrasse 8, Chur Rera AG PK Rediffussion Building at 12,000,000 None Zollstrasse 42, Zurich Rera AG PK Rediffussion Building at 1,200,000 None Belpstrasse 36, Bern Rera AG United Bank of Building at Grand- 1,000,000 None Switzerland pont 5, Lausanne Video 2000 SA United Bank of Building at Avenue 600,000 23/4/2001 Switzerland de la Gare 5, Neuchatel Video 2000 SA United Bank of Building at Avenue 600,000 23/4/2003 Switzerland de la Gare 5, Neuchatel Rera AG Winterthur Building at 2,300,000 None Versich Bepstrasse 36, Ben
-153- 157 SCHEDULE 13 FORM OF DEED OF ACCESSION THIS Deed dated [ ], [ ] is supplemental to a credit agreement (the "CREDIT AGREEMENT") dated 28 March 2000 and made between a group of borrowers including Cablecom (Ostschweiz) AG, Chase Manhattan International Limited as agent, the financial institutions defined therein as Banks and others. Words and expressions defined in the Credit Agreement have the same meaning when used in this Deed. [Name of Permitted Facilities Provider] hereby agrees with each other person who is or who becomes a party to the Credit Agreement that with effect on and from the date hereof it will be bound by the Credit Agreement as the Permitted Facilities Provider as if it had been party to the Credit Agreement in that capacity. The address for notice of [Name of the Permitted Facilities Provider] for the purposes of Clause 40 (Notices) of the Credit Agreement is:- [ ]. This Deed is governed by English law. EXECUTED AS A DEED ) by [Name of the Permitted Facilities Provider] ) acting by [ ] ) in the presence of:- ) Name: Address: -154- 158 SIGNATURES THE PARENT NTL INCORPORATED By: JEFFREY G WYMAN Address: 110 East 59th Street New York, NY USA Fax: 001 212 752 1157 THE SHAREHOLDER NTL CABLECOM HOLDING GMBH By: JEFFREY G WYMAN GAUDENZ DOMENIG Address: c/o ATAG Ernst & Young AG Bundesstrasse 3 6304 Zug Switzerland THE ORIGINAL BORROWERS CABLECOM (OSTSCHWEIZ) AG By: JEFFREY G WYMAN GAUDENZ DOMENIG Address: Neumuhlestrasse 42 8406 Winterthur Switzerland Fax: 00 411 277 9292 -155- 159 CABLECOM MANAGEMENT AG By: JEFFREY G WYMAN GAUDENZ DOMENIG Address: Zollstrasse 42 8005 Zurich Switzerland BALCAB AG By: JEFFREY G WYMAN GAUDENZ DOMENIG Address: Munchensteinerstrasse 270 4053 Basel Switzerland THE ORIGINAL GUARANTORS NTL CABLECOM HOLDING GMBH By: JEFFREY G WYMAN GAUDENZ DOMENIG Address: c/o ATAG Ernst & Young Bundesstrasse 3 6304 Zug Switzerland CABLECOM (OSTSCHWEIZ) AG By: JEFFREY G WYMAN GAUDENZ DOMENIG Address: Neumuhlestrasse 42 8400 Winterthur Switzerland -156- 160 CABLECOM AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Zwirnerstrasse 70 8041 Zurich Switzerland CABLECOM (SUISSE ROMANDE) SA By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Avenue du Midi 11 1700 Fribourg Switzerland CODITEL SA By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Boulevard Carl-Vogt 66 1205 Geneva Switzerland CABLECOM (TICINO) SA By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Via C. Molo 5 6500 Bellinzona Switzerland -157- 161 BALCAB AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Munchensteinerstrasse 270 4053 Basel Switzerland SWISS ONLINE AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Industriestrasse 19 8112 Otelfingen Switzerland CABLECOM (BERN) AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Belpstrasse 36 3007 Bern Switzerland CABLECOM ENGINEERING AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Zollstrasse 42 8005 Zurich Switzerland -158- 162 CABLECOM (MITTELLAND) AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Delfterstrasse 10 5004 Aarau Switzerland CABLECOM (ZENTRALSCHWEIZ) AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: c/o Fischer Holding AG Habsburgerstrasse 22 6003 Lucerne Switzerland KILCHENMANN HOLDING AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Bernstrasse 95 3122 Kehrsatz Switzerland NORDEX SA By: GAUDENZ DOMENIG ULRICH DIETIKER Address: c/o Roberto Poretti Via Canonica 5 6950 Tesserete Switzerland -159- 163 RERA AG IMMOBILIENGESELLSCHAFT By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Zollstrasse 42 8005 Zurich Switzerland WINTER KABELFERNSEH AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: c/o Balcab AG Munchensteinerstrasse 270 4023 Basel Switzerland CABLE SIGNAL OLTEN AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Swisscom Gasse 4600 Olten Switzerland KILCHENMANN KABELFERNSEH AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Bernstrasse 95 3122 Kehrsatz Switzerland -160- 164 CABLECOM MEDIA AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Zollstrasse 42 8005 Zurich Switzerland CATEC SV AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Wolleraustrasse 9 8807 Freienbad Switzerland REDIFFUSION AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Sonnenbergstrasse 72 8603 Schwerzenbach Switzerland CABLECOM MANAGEMENT AG By: GAUDENZ DOMENIG ULRICH DIETIKER Address: Zollstrasse 42 8005 Zurich Switzerland -161- 165 THE ARRANGERS CHASE MANHATTAN PLC By: VALERIE REYNIER Address: 125 London Wall London EC2Y 5AJ MORGAN STANLEY SENIOR FUNDING, INC. By: VALERIE REYNIER (AS ATTORNEY) Address: 1585 Broadway New York NY 10036 USA THE AGENT CHASE MANHATTAN INTERNATIONAL LIMITED By: VALERIE REYNIER Address: Trinity Tower 9 Thomas Moore Street London E1 9YT Fax: +44 (0) 20 7777 2360 Attention: Steve Clarke Loans Agency Department THE BANKS THE LEAD ARRANGERS THE CHASE MANHATTAN BANK By: VALERIE REYNIER MORGAN STANLEY SENIOR FUNDING, INC. By: VALERIE REYNIER (AS ATTORNEY) -162- 166 ARRANGERS BANK OF AMERICA, N.A. By: VALERIE REYNIER (AS ATTORNEY) BAYERISCHE HYPO- UND VEREINSBANK AKTIENGESELLSCHAFT, LONDON BRANCH By: VALERIE REYNIER (AS ATTORNEY) PARIBAS By: VALERIE REYNIER (AS ATTORNEY) CIBC WORLD MARKETS PLC By: VALERIE REYNIER (AS ATTORNEY) CITIBANK, N.A. By: WERNER BARILI DEUTSCHE BANK AG LONDON By: VALERIE REYNIER (AS ATTORNEY) DRESDNER BANK LUXEMBOURG S.A. By: VALERIE REYNIER (AS ATTORNEY) MORGAN GUARANTY TRUST COMPANY OF NEW YORK By: VALERIE REYNIER (AS ATTORNEY) THE ROYAL BANK OF SCOTLAND PLC By: VALERIE REYNIER (AS ATTORNEY) -163- 167 SOCIETE GENERALE By: VALERIE REYNIER (AS ATTORNEY) WESTDEUTSCHE LANDESBANK GIROZENTRALE By: VALERIE REYNIER (AS ATTORNEY) CO-ARRANGERS ABC INTERNATIONAL BANK PLC By: VALERIE REYNIER (AS ATTORNEY) BANCA NAZIONALE DEL LAVORO S.P.A., LONDON BRANCH By: VALERIE REYNIER (AS ATTORNEY) BANKGESELLSCHAFT BERLIN AG By: VALERIE REYNIER (AS ATTORNEY) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND By: VALERIE REYNIER (AS ATTORNEY) BAYERISCHE LANDESBANK GIROZENTRALE By: VALERIE REYNIER (AS ATTORNEY) CREDIT LYONNAIS By: VALERIE REYNIER (AS ATTORNEY) CREDIT SUISSE By: VALERIE REYNIER (AS ATTORNEY) -164- 168 THE DAI-ICHI KANGYO BANK, LIMITED By: VALERIE REYNIER (AS ATTORNEY) DEXIA PROJECT AND PUBLIC FINANCE INTERNATIONAL BANK By: VALERIE REYNIER (AS ATTORNEY) DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG By: VALERIE REYNIER (AS ATTORNEY) COOPERTIEVE CENTRALE RAIFFEISEN -- BOERENLEENBANK BA (TRADING AS RABOBANK INTERNATIONAL) By: VALERIE REYNIER (AS ATTORNEY) DLJ CAPITAL FUNDING, INC. By: VALERIE REYNIER (AS ATTORNEY) MEESPIERSON N.V. By: VALERIE REYNIER (AS ATTORNEY) SCOTIABANK EUROPE PLC By: VALERIE REYNIER (AS ATTORNEY) LEAD MANAGER THE FUJI BANK, LIMITED By: VALERIE REYNIER (AS ATTORNEY) -165- EX-12.1 7 y49999ex12-1.txt COMPUTATION OF RATIO OF EARNINGS 1 NTL Communications Corp. Exhibit 12.1 Computation of Ratio of Earnings to Fixed Charges
Year Ended December 31, 3 Months Ended -------------------------------------------------------------- March 31, 2001 2000 1999 1998 1997 1996 -------------- ---- ---- ---- ---- ---- Fixed charges: Interest $ 329.6 $ 981.4 $ 720.0 $ 356.6 $ 209.4 $ 147.3 Amortization of debt expense 9.9 33.8 18.0 10.2 7.8 8.9 Interest portion of rental expense 4.2 15.4 9.2 9.8 6.0 5.0 ---------- ---------- -------- -------- -------- -------- Fixed charges 343.7 1,030.6 747.2 376.6 223.2 161.2 Preferred stock dividend requirement -- -- 13.1 18.8 12.0 -- ---------- ---------- -------- -------- -------- -------- Combined fixed charges and preferred stock dividend requirement $ 343.7 $ 1,030.6 $ 760.3 $ 395.4 $ 235.2 $ 161.2 ========== ========== ======== ======== ======== ======== Earnings: (Loss) from operations $ (837.0) $ (2,468.0) $ (743.4) $ (507.2) $ (344.1) $ (258.6) Fixed charges 343.7 1,030.6 747.2 376.6 223.2 161.2 Less: Capitalized interest (21.6) (95.1) (41.8) (27.8) (6.8) (10.3) ---------- ---------- -------- -------- -------- -------- $ (514.9) $ (1,532.5) $ (38.0) $ (158.4) $ (127.7) $ (107.7) ========== ========== ======== ======== ======== ======== Ratio of Earnings to Fixed Charges (1) -- -- -- -- -- --
----------------- The ratio of earnings to fixed charges and combined fixed charges and preferred stock dividends is not meaningful for the periods that result in a deficit. (1) For the three months ended March 31, 2001 and for the years ended December 31, 2000, 1999, 1998, 1997 and 1996, the deficit of earnings to fixed charges was $858.6 million, $2,563.1 million $785.2 million, $535.0 million, $350.9 million, and $268.9 million, respectively. For the years ended December 31, 1999, 1998 and 1997, the deficit of earnings to combined fixed charges and preferred stock dividends was $798.3 million, $553.8 million and $362.9 million, respectively. EX-12.2 8 y49999ex12-2.txt COMPUTATION OF RATIO OF EARNINNGS TO FIXED CHARGES 1 NTL Incorporated Exhibit 12.2 Computation of Ratio of Earnings to Fixed Charges
Year Ended December 31, 3 Months Ended -------------------------------------------------------------- March 31, 2001 2000 1999 1998 1997 1996 -------------- ---- ---- ---- ---- ---- Fixed charges: Interest $ 376.7 $ 1,131.9 $ 722.5 $ 356.6 $ 209.4 $ 147.3 Amortization of debt expense 12.1 40.9 18.2 10.2 7.8 8.9 Interest portion of rental expense 6.7 18.7 12.2 9.8 6.0 5.0 ---------- ---------- -------- -------- -------- -------- Fixed charges 395.5 1,191.5 752.9 376.6 223.2 161.2 Preferred stock dividend requirement 65.1 194.0 73.7 18.8 12.0 -- ---------- ---------- -------- -------- -------- -------- Combined fixed charges and preferred stock dividend requirement $ 460.6 $ 1,385.5 $ 826.6 $ 395.4 $ 235.2 $ 161.2 ========== ========== ======== ======== ======== ======== Earnings: (Loss) from operations $ (1,060.4) $ (3,074.7) $ (768.0) $ (507.2) $ (344.1) $ (258.6) Fixed charges 395.5 1,191.5 752.9 376.6 223.2 161.2 Less: Capitalized interest (21.6) (95.1) (41.8) (27.8) (6.8) (10.3) ---------- ---------- -------- -------- -------- -------- $ (686.5) $ (1,978.3) $ (56.9) $ (158.4) $ (127.7) $ (107.7) ========== ========== ======== ======== ======== ======== Ratio of Earnings to Fixed Charges (1) -- -- -- -- -- --
----------------- The ratio of earnings to fixed charges and combined fixed charges and preferred stock dividends is not meaningful for the periods that result in a deficit. (1) For the three months ended March 31, 2001 and for the years ended December 31, 2000, 1999, 1998, 1997 and 1996, the deficit of earnings to fixed charges was $1,082.0 million, $3,169.8 million $809.8 million, $535.0 million, $350.9 million, and $268.9 million, respectively. For the three months ended March 31, 2001 and for the years ended December 31, 2000, 1999, 1998 and 1997, the deficit of earnings to combined fixed charges and preferred stock dividends was $1,147.1 million, $3,363.8 million, $883.5 million, $553.8 million and $362.9 million, respectively. EX-23.1 9 y49999ex23-1.txt CONSENT OF ERNST & YOUNG LLP 1 Exhibit 23.1 CONSENTS OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of NTL Communications Corp. and NTL Incorporated for the registration of $1,150,000,000 of their 6-3/4% Convertible Senior Notes due 2008 and shares of NTL Incorporated common stock and to the incorporation by reference therein of: (i) our report dated March 2, 2001, with respect to the consolidated financial statements and schedules of NTL Communications Corp. for the year ended December 31, 2001, included in its Current Report on Form 8-K/A dated May 4, 2001 and (ii) our report dated March 2, 2001, with respect to the consolidated financial statements and schedules of NTL Incorporated included in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. New York, New York July 19, 2001 /s/ ERNST & YOUNG LLP EX-23.2 10 y49999ex23-2.txt CONSENT OF ERNST & YOUNG 1 Exhibit 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" and to the use of our report dated May 3, 2001, with respect to the financial statements of ntl (CWC Holdings) as of December 31, 2000 and for the seven months then ended, included in NTL Communications Corp.'s Current Report on Form 8-K/A dated May 4, 2001 filed with the Securities and Exchange Commission, and incorporated by reference in the Registration Statement (Form S-3) and related Prospectus of NTL Communications Corp. for the registration of $1,150,000,000 of its 6 3/4% Convertible Senior Notes due 2008, and NTL Incorporated for the registration of shares of its common stock. London, England July 19, 2001 /s/ ERNST & YOUNG EX-23.3 11 y49999ex23-3.txt CONSENT OF ARTHUR ANDERSEN 1 Exhibit 23.3 CONSENT OF INDEPENDENT AUDITORS As independent auditors, we consent to the incorporation by reference in this registration statement on Form S-3 of our report dated October 6, 2000 on our audit of the combined financial statements of CWC ConsumerCo as of March 31, 1999 and 2000, for the three years ended March 31, 2000. We also consent to the references to our firm under the Caption "Experts". /s/ ARTHUR ANDERSEN Arthur Andersen London, England July 20, 2001 EX-23.4 12 y49999ex23-4.txt CONSENT OF PRICEWATERHOUSECOOPERS AG 1 Exhibit 23.4 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the use in this Registration Statement on Form S-3 of NTL Incorporated of our report dated March 14, 2000 except for Note 21 relating to differences between Swiss and United States accounting principles, which is as of April 28, 2000, relating to the financial statements of Cablecom Holding AG, which appear in such Registration Statement. We also consent to us under the headings "Experts" in such Registration Statement. PricewaterhouseCoopers AG /s/ Julie Fitzgerald /s/ Lukas Imark - --------------------------- -------------------------- Julie Fitzgerald Lukas Imark Berne, Switzerland July 19, 2001 -----END PRIVACY-ENHANCED MESSAGE-----