EX-99.1 3 a04-4579_1ex99d1.htm EX-99.1

Exhibit 99.1

 

CONFORMED COPY

 

 

 

13 April 2004

 

 

£2,425,000,000 SENIOR FACILITIES AGREEMENT

 

 

between

 

 

NTL INCORPORATED
as Ultimate Parent

 

 

NTL INVESTMENT HOLDINGS LIMITED
as Borrower

 

 

CREDIT SUISSE FIRST BOSTON
DEUTSCHE BANK AG LONDON
GOLDMAN SACHS INTERNATIONAL
MORGAN STANLEY DEAN WITTER BANK LIMITED
BNP PARIBAS
CITIBANK N.A., LONDON
CREDIT LYONNAIS
FORTIS BANK S.A./N.V.
GE CAPITAL STRUCTURED FINANCE GROUP LIMITED
HSBC BANK PLC
SOCIETE GENERALE
as Mandated Lead Arrangers

 

 

CREDIT SUISSE FIRST BOSTON
as Facility Agent and Security Trustee

 

 

GE CAPITAL STRUCTURED FINANCE GROUP LIMITED
as Administrative Agent

 

and

 

 

THE LENDERS

 

 

 


7-11 Moorgate
London EC2R 6HH

 



 

TABLE OF CONTENTS

 

1.  DEFINITIONS AND INTERPRETATION

 

 

1.1  Definitions

 

 

1.2  Definitions in the Separation Memorandum

 

 

1.3  Accounting Expressions

 

 

1.4  Construction

 

 

1.5  Currency

 

 

1.6  Statutes

 

 

1.7  Time

 

 

1.8  References to Agreements

 

 

1.9  Documentary Credits

 

 

1.10  Commitments of Morgan Stanley

 

 

1.11  Holding Company of Ultimate Parent

 

2.  THE FACILITIES

 

 

2.1  The Facilities

 

 

2.2  Purpose

 

 

2.3  Several Obligations

 

 

2.4  Several Rights

 

3.  CONDITIONS

 

 

3.1  Conditions Precedent

 

 

3.2  Condition Subsequent relating to Diamond Sub-Group and Triangle Sub-Group

 

 

3.3  General Conditions Subsequent

 

4.  UTILISATION

 

 

4.1  Conditions to Utilisation

 

 

4.2  Lenders’ Participations

 

5.  DOCUMENTARY CREDITS

 

 

5.1  Issue of Documentary Credits

 

 

5.2  Renewal of Documentary Credits

 

 

5.3  Revaluation of Documentary Credits

 

 

5.4  Immediately Payable

 

 

5.5  Claims under a Documentary Credit

 

 

5.6  Documentary Credit Indemnities

 

 

5.7  Rights of Contribution

 

 

5.8  Role of the L/C Bank

 

 

5.9  Exclusion of Liability

 

 

5.10  Credit Appraisal by the Indemnifying Lenders

 

 

5.11  Appointment and Change of L/C Bank

 

6.  ANCILLARY FACILITIES

 

 

6.1  Utilisation of Ancillary Facilities

 

 

6.2  Operation of Ancillary Facilities

 

 

6.3  Ancillary Facility Default

 

7.  OPTIONAL CURRENCIES

 

 

7.1  Selection of Currency

 

 

7.2  Unavailability of Optional Currency

 

8.  REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS

 

 

8.1  Repayment of Revolving Facility Advances

 

 

8.2  Rollover Advances

 

 

8.3  Cash Collateralisation of Documentary Credits

 

 

8.4  Cleandown

 

9.  REPAYMENT OF TERM FACILITY OUTSTANDINGS

 

 

9.1  Repayment of A Facility Outstandings

 

 

9.2  Repayment of B Facility Outstandings

 

 

i



 

 

9.3  No Reborrowing of Term Facility Advances

 

10.  CANCELLATION

 

 

10.1  Voluntary Cancellation

 

 

10.2  Notice of Cancellation

 

 

10.3  Cancellation of Available Commitments

 

11.  VOLUNTARY PREPAYMENT

 

 

11.1  Voluntary Prepayment

 

 

11.2  Right of Prepayment and Cancellation in relation to a single Lender

 

 

11.3  Application of Repayments

 

 

11.4  Release from Obligation to make Advances

 

 

11.5  Notice of Repayment

 

 

11.6  Restrictions on Repayment

 

 

11.7  Cancellation upon Repayment

 

12.  MANDATORY PREPAYMENT AND CANCELLATION

 

 

12.1  Change of Control

 

 

12.2  Repayment from Net Proceeds

 

 

12.3  Blocked Accounts

 

 

12.4  Repayment from Excess Cash Flow

 

 

12.5  Repayment from Debt Proceeds

 

 

12.6  Repayment from Equity Proceeds

 

 

12.7  Repayment from Securitisations and Factoring

 

13.  INTEREST ON REVOLVING FACILITY ADVANCES

 

 

13.1  Interest Payment Date for Revolving Facility Advances

 

 

13.2  Interest Rate for Revolving Facility Advances

 

 

13.3  Margin Ratchet for Revolving Facility Advances

 

14.  INTEREST ON TERM FACILITY ADVANCES

 

 

14.1  Interest Periods for Term Facility Advances

 

 

14.2  Duration

 

 

14.3  Consolidation of Term Facility Advances

 

 

14.4  Division of Term Facility Advances

 

 

14.5  Payment of Interest for Term Facility Advances

 

 

14.6  Interest Rate for Term Facility Advances

 

 

14.7  Margin Ratchet for A Facility Advances

 

 

14.8  Notification

 

15.  MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES

 

 

15.1  Market Disruption

 

 

15.2  Substitute Interest Period or Term and Interest Rate

 

 

15.3  Alternative Rate

 

16.  COMMISSIONS AND FEES

 

 

16.1  Commitment Fees

 

 

16.2  Arrangement and Underwriting Fee

 

 

16.3  Agency Fee

 

 

16.4  Documentary Credit Fee

 

 

16.5  L/C Bank Fee

 

17.  TAXES

 

 

17.1  Tax Gross-up

 

 

17.2  Tax Indemnity

 

 

17.3  Tax Credit

 

18.  INCREASED COSTS

 

 

18.1  Increased Costs

 

 

18.2  Increased Costs Claims

 

 

18.3  Exceptions

 

19.  ILLEGALITY

 

20.  MITIGATION

 

 

20.1  Mitigation

 

 

ii



 

 

20.2  Limitation of Liability

 

21.  REPRESENTATIONS AND WARRANTIES

 

 

21.1  Due Organisation

 

 

21.2  No Deduction

 

 

21.3  Claims Pari Passu

 

 

21.4  No Immunity

 

 

21.5  Governing Law and Judgments

 

 

21.6  All Actions Taken

 

 

21.7  No Filing or Stamp Taxes

 

 

21.8  Binding Obligations

 

 

21.9  No Winding-up

 

 

21.10  No Event of Default

 

 

21.11  No Material Proceedings

 

 

21.12  Original Financial Statements

 

 

21.13  No Material Adverse Change

 

 

21.14  No Undisclosed Liabilities

 

 

21.15  Accuracy of Information

 

 

21.16  Indebtedness and Encumbrances

 

 

21.17  Execution of Finance Documents

 

 

21.18  Structure

 

 

21.19  Environmental Matters

 

 

21.20  Necessary Authorisations

 

 

21.21  Intellectual Property

 

 

21.22  Ownership of Assets

 

 

21.23  Payment of Taxes

 

 

21.24  Pension Plans

 

 

21.25  Security

 

 

21.26  Investment Company Act

 

 

21.27  Public Utility Holding Company Act

 

 

21.28  Insurance

 

 

21.29  Centre of Main Interests

 

 

21.30  Repetition

 

22.  FINANCIAL INFORMATION

 

 

22.1  Financial Statements

 

 

22.2  Provisions relating to Bank Group Financial Information

 

 

22.3  Budget

 

 

22.4  Other Information

 

 

22.5  Compliance Certificates

 

 

22.6  Change in Accounting Practices

 

 

22.7  Notifications

 

 

22.8  Role of the Administrative Agent

 

23.  FINANCIAL CONDITION

 

 

23.1  Financial Definitions

 

 

23.2  Ratios

 

 

23.3  Permitted Capital Expenditure

 

 

23.4  Currency calculations

 

 

23.5  Pro Forma Calculations

 

24.  POSITIVE UNDERTAKINGS

 

 

24.1  Undertakings in respect of the Broadcast Business

 

 

24.2  Application of Advances

 

 

24.3  Financial Assistance and Fraudulent Conveyance

 

 

24.4  Necessary Authorisations

 

 

24.5  Compliance with Applicable Laws

 

 

24.6  Insurance

 

 

24.7  Intellectual Property

 

 

iii



 

 

24.8  Ranking of Claims

 

 

24.9  Pay Taxes

 

 

24.10  Hedging

 

 

24.11  Pension Plans

 

 

24.12  Environmental Matters

 

 

24.13  Further Assurance

 

 

24.14  Centre of Main Interests

 

 

24.15  Group Structure Chart

 

 

24.16  Contributions to the Bank Group

 

 

24.17  “Know your client” checks

 

 

24.18  Change in Auditors

 

 

24.19  Syndication

 

 

24.20  Notice of Integrated Merger Event

 

25.  NEGATIVE UNDERTAKINGS

 

 

25.1  Undertakings with respect to the Broadcast Business

 

 

25.2  Negative Pledge

 

 

25.3  Loans and Guarantees

 

 

25.4  Financial Indebtedness

 

 

25.5  Dividends, Distributions and Share Capital

 

 

25.6  Disposals

 

 

25.7  Change of Business

 

 

25.8  Mergers

 

 

25.9  Joint Ventures

 

 

25.10  Transactions with Affiliates

 

 

25.11  Change in Financial Year

 

 

25.12  Ownership

 

 

25.13  Limitations on Hedging

 

 

25.14  Acquisitions and Investments

 

 

25.15  High Yield Notes

 

 

25.16  No Restrictions on Payments

 

 

25.17  Cableco Covenants

 

 

25.18  Baskets

 

26.  ACCEDING GUARANTORS AND ACCEDING HOLDING COMPANY

 

 

26.1  Acceding Guarantors

 

 

26.2  Acceding Holding Company

 

 

26.3  Assumption of Rights and Obligations

 

27.  EVENTS OF DEFAULT

 

 

27.1  Events of Default Relating to the Broadcast Business

 

 

27.2  Non-Payment

 

 

27.3  Covenants

 

 

27.4  Other Obligations

 

 

27.5  Misrepresentation

 

 

27.6  Cross Default

 

 

27.7  Insolvency

 

 

27.8  Winding-up

 

 

27.9  Execution or Distress

 

 

27.10  Similar Events

 

 

27.11  Repudiation

 

 

27.12  Illegality

 

 

27.13  Intercreditor Default

 

 

27.14  Revocation of Necessary Authorisations

 

 

27.15  Material Adverse Effect

 

 

27.16  Material Proceedings

 

 

27.17  Acceleration

 

 

27.18  Repayment on Demand

 

 

iv



 

28.  SEPARATION OF THE BROADCAST BUSINESS

 

 

28.1  Transactions Prior to Separation

 

 

28.2  Separation of the Broadcast Business

 

 

28.3  Release of Guarantees and Security

 

 

28.4  Covenant to Procure Release

 

29.  DEFAULT INTEREST

 

 

29.1  Consequences of Non-Payment

 

 

29.2  Default Rate

 

 

29.3  Maturity of Default Interest

 

 

29.4  Construction of Unpaid Sum

 

30.  GUARANTEE AND INDEMNITY

 

 

30.1  Guarantee

 

 

30.2  Indemnity

 

 

30.3  Continuing and Independent Obligations

 

 

30.4  Avoidance of Payments

 

 

30.5  Immediate Recourse

 

 

30.6  Waiver of Defences

 

 

30.7  No Competition

 

 

30.8  Appropriation

 

 

30.9  Limitation of Liabilities of United States Guarantors

 

31.  AGENTS

 

 

31.1  Appointment of the Facility Agent

 

 

31.2  Appointment of the Administrative Agent

 

 

31.3  Duties of the Facility Agent

 

 

31.4  Role of the Mandated Lead Arrangers and Administrative Agent

 

 

31.5  No Fiduciary Duties

 

 

31.6  Business with the Group

 

 

31.7  Discretion of the Agents

 

 

31.8  Instructing Group’s Instructions

 

 

31.9  No Responsibility

 

 

31.10  Exclusion of Liability

 

 

31.11  Lender’s Indemnity

 

 

31.12  Resignation

 

 

31.13  Confidentiality

 

 

31.14  Facility Office

 

 

31.15  Lenders’ Associated Costs Details

 

 

31.16  Credit Appraisal by the Lenders

 

 

31.17  Deduction from Amounts Payable by the Agents

 

 

31.18  Obligors’ Agent

 

 

31.19  Co-operation with the Agents

 

 

31.20  “Know your client” checks

 

32.  BORROWER’S INDEMNITIES

 

 

32.1  General Indemnities

 

 

32.2  Break Costs

 

33.  CURRENCY OF ACCOUNT

 

 

33.1  Currency

 

 

33.2  Currency Indemnity

 

34.  PAYMENTS

 

 

34.1  Payment to the Facility Agent

 

 

34.2  Same Day Funds

 

 

34.3  Clear Payments

 

 

34.4  Partial Payments

 

 

34.5  Indemnity

 

 

34.6  Notification of Payment

 

 

34.7  Business Days

 

 

v



 

35.  SET-OFF

 

 

35.1  Right to Set-off

 

 

35.2  No Obligation

 

36.  SHARING AMONG THE FINANCE PARTIES

 

 

36.1  Payments to Finance Parties

 

 

36.2  Redistribution of Payments

 

 

36.3  Recovering Finance Party’s Rights

 

 

36.4  Reversal of Redistribution

 

 

36.5  Exceptions

 

37.  CALCULATIONS AND ACCOUNTS

 

 

37.1  Day Count Convention

 

 

37.2  Reductions

 

 

37.3  Reference Banks

 

 

37.4  Maintain Accounts

 

 

37.5  Control Accounts

 

 

37.6  Prima Facie Evidence

 

 

37.7  Certificate of Finance Party

 

 

37.8  Certificate of the Facility Agent

 

 

37.9  Certificate of L/C Bank

 

38.  ASSIGNMENTS AND TRANSFERS

 

 

38.1  Successors and Assignees

 

 

38.2  Assignment or Transfers by Obligors

 

 

38.3  Assignments or Transfers by Lenders

 

 

38.4  Assignments

 

 

38.5  Transfer Deed

 

 

38.6  Transfer Fee

 

 

38.7  Disclosure of Information

 

 

38.8  No Increased Obligations

 

 

38.9  Notification

 

39.  COSTS AND EXPENSES

 

 

39.1  Transaction Costs

 

 

39.2  Preservation and Enforcement Costs

 

 

39.3  Stamp Taxes

 

 

39.4  Amendments, Consents and Waivers

 

 

39.5  Lenders’ Indemnity

 

 

39.6  Value Added Tax

 

40.  REMEDIES AND WAIVERS

 

41.  NOTICES AND DELIVERY OF INFORMATION

 

 

41.1  Writing

 

 

41.2  Giving of Notice

 

 

41.3  Use of Websites/E-mail

 

 

41.4  Electronic Communication

 

 

41.5  Certificates of Officers

 

42.  ENGLISH LANGUAGE

 

43.  PARTIAL INVALIDITY

 

44.  AMENDMENTS

 

 

44.1  Amendments

 

 

44.2  Consent

 

 

44.3  Technical Amendments

 

 

44.4  Guarantees and Security

 

 

44.5  Release of Guarantees and Security

 

 

44.6  Amendments affecting the Facility Agent

 

 

44.7  Amendments to the Pari Passu Intercreditor Agreement

 

45.  THIRD PARTY RIGHTS

 

46.  COUNTERPARTS

 

 

vi



 

47.  GOVERNING LAW

 

48.  JURISDICTION

 

 

48.1  Courts of England

 

 

48.2  Waiver

 

 

48.3  Service of Process

 

 

48.4  Proceedings in Other Jurisdictions

 

 

48.5  General Consent

 

 

48.6  Waiver of Immunity

 

49.  POST EXECUTION RESTRUCTURING

 

 

SCHEDULE 1

 

 

 

PART 1 - LENDERS AND COMMITMENTS

 

 

 

PART 2 - UK NON-BANK LENDERS

 

 

SCHEDULE 2

 

 

 

PART 1 - THE ORIGINAL GUARANTORS

 

 

 

PART 2 - THE RESTRICTED GUARANTORS

 

 

SCHEDULE 3 FORM OF DEED OF TRANSFER AND ACCESSION

 

 

SCHEDULE 4

 

 

 

PART 1 - CONDITIONS PRECEDENT TO FIRST UTILISATION

 

 

 

PART 2 - FORM OF CERTIFICATE OF OBLIGOR

 

 

 

PART 3 - INITIAL SECURITY DOCUMENTS

 

 

 

PART 4 - CONDITIONS SUBSEQUENT DOCUMENTS

 

 

SCHEDULE 5

 

 

 

PART 1 - FORM OF UTILISATION REQUEST (ADVANCES)

 

 

 

PART 2 - FORM OF UTILISATION REQUEST (DOCUMENTARY CREDITS)

 

 

SCHEDULE 6 ASSOCIATED COSTS RATE

 

 

SCHEDULE 7

 

 

 

PART 1 - FORM OF ACCESSION NOTICE

 

 

 

PART 2 - ACCESSION DOCUMENTS

 

 

SCHEDULE 8

 

 

 

PART 1 - FORM OF QUARTERLY COMPLIANCE CERTIFICATE

 

 

 

PART 2 - FORM OF COMPLIANCE CERTIFICATE FOLLOWING INTEGRATED MERGER EVENT

 

 

SCHEDULE 9

 

 

 

PART 1 - MEMBERS OF THE BANK GROUP

 

 

 

PART 2 - MEMBERS OF THE DIAMOND SUB-GROUP

 

 

 

PART 3 - MEMBERS OF THE TRIANGLE SUB-GROUP

 

 

 

PART 4 - MEMBERS OF THE BROADCAST GROUP

 

 

SCHEDULE 10

 

 

 

PART 1 - EXISTING ENCUMBRANCES

 

 

 

PART 2 - EXISTING LOANS

 

 

 

PART 3 - EXISTING FINANCIAL INDEBTEDNESS

 

 

 

PART 4 - EXISTING PERFORMANCE BONDS

 

 

SCHEDULE 11 FORM OF L/C BANK ACCESSION CERTIFICATE

 

 

SCHEDULE 12 FORM OF DOCUMENTARY CREDIT

 

 

SCHEDULE 13 PRO FORMA BANK GROUP FINANCIAL STATEMENTS

 

 

SCHEDULE 14 PRO FORMA PARI PASSU INTERCREDITOR AGREEMENT

 

 

SCHEDULE 15 PRO FORMA BUDGET INFORMATION

 

 

vii



 

THIS AGREEMENT is dated 13 April 2004 and made between:

 

(1)           NTL INCORPORATED (“NTL”);

 

(2)           NTL INVESTMENT HOLDINGS LIMITED (the “Borrower”);

 

(3)           CREDIT SUISSE FIRST BOSTON, DEUTSCHE BANK AG LONDON, GOLDMAN SACHS INTERNATIONAL, MORGAN STANLEY DEAN WITTER BANK LIMITED., BNP PARIBAS, CITIBANK N.A., LONDON, CREDIT LYONNAIS, FORTIS BANK S.A./N.V., GE CAPITAL STRUCTURED FINANCE GROUP LIMITED, HSBC BANK PLC AND SOCIETE GENERALE (each a “Mandated Lead Arranger” and together, the “Mandated Lead Arrangers”);

 

(4)           CREDIT SUISSE FIRST BOSTON (as agent for and on behalf of the Finance Parties, the “Facility Agent”);

 

(5)           CREDIT SUISSE FIRST BOSTON (as security trustee for and on behalf of the Finance Parties, the “Security Trustee”);

 

(6)           GE CAPITAL STRUCTURED FINANCE GROUP LIMITED (as administrative agent for the Lenders under the B Facility, the “Administrative Agent”); and

 

(7)           THE LENDERS (as defined below).

 

1.             DEFINITIONS AND INTERPRETATION

 

1.1          Definitions

 

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

 

95% Security Test” means the requirement that, save as otherwise provided in Clause 24.13 (Further Assurance), members of the Bank Group generating not less than 95% of the Bank Group Covenant Profit (excluding for the purposes of this definition any Bank Group Covenant Profit generated by members of the Triangle Sub-Group prior to such time that the Triangle Notes have been repaid in full and any Bank Group Covenant Profit generated by members of the Diamond Sub-Group prior to such time that the total issued share capital of Diamond Cable shall have been acquired by NTL Group Limited in accordance with the provisions of Clause 49 (Post-Execution Restructuring)) have acceded as Guarantors to this Agreement as tested by reference to (subject to the provisions of paragraph (b) of the definition of “Merger Event Conditions”) each set of quarterly financial information relating to the Bank Group delivered to the Facility Agent pursuant to Clause 22.1 (Financial Statements).

 

Acceding Guarantor” means any member of the Bank Group (or immediately prior to the effective date of the Integrated Merger Event, any member of the Target Group) which has complied with the requirements of Clause 26.1 (Acceding Guarantors).

 

Acceding Holding Company” means any person which becomes the Holding Company of the Ultimate Parent and which has complied with the requirements of Clause 26.2 (Acceding Holding Company).

 

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

 

1



 

Acceptable Hedging Agreement” means a Hedging Agreement entered into on the terms of the International Swaps & Derivatives Association Inc. 1992 or 2002 Master Agreement (Multicurrency-Cross Border) under which:

 

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

 

(b)           the governing Law is English or New York Law.

 

Accession Notice” means a duly completed notice of accession in the form of Part 1 of Schedule 7 (Form of Accession Notice).

 

Act” means the Companies Act 1985 (as amended).

 

Advance” means, save as otherwise provided in this Agreement, a Revolving Facility Advance, an A Facility Advance or a B Facility Advance, as the context may require.

 

A Facility” means the term loan facility granted to the Borrower pursuant to Clause 2.1(b) (The Facilities).

 

A Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by the Lenders under the A Facility or arising in respect of the A Facility under Clause 14.3 (Consolidation of Term Facility Advances) or under Clause 14.4 (Division of Term Facility Advances).

 

A Facility Commitment” means, in relation to a Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Part 1 of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Deed pursuant to which such Lender becomes a party to this Agreement.

 

A Facility Margin” means, in relation to A Facility Advances, and subject to Clause 14.7 (Margin Ratchet for A Facility Advances), 2.25% per annum.

 

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

 

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

 

Agents” means the Facility Agent and the Administrative Agent, and “Agent” means either of them.

 

Agreed Allocation Principles” means the principles of cost allocation in respect of the services, facilities and other arrangements to be provided by members of the Core Group to members of the Broadcast Group or to a third party purchaser as contained in Section III of Part 3 of the Separation Memorandum, or otherwise as agreed between the Facility Agent (acting on the instructions of an Instructing Group) and the Borrower.

 

Agreed Business Plan” means the business plan, financial model and analysis of the future funding requirements of the Borrower and the Bank Group (excluding the Broadcast Business) prepared by the Borrower and delivered to the Mandated Lead Arrangers prior to the date of this Agreement.

 

2



 

Ancillary Facility” means any:

 

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

 

(b)           forward foreign exchange facility;

 

(c)           derivatives facility;

 

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

 

(e)           performance bond facility; and/or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Asset Adjustment Payments” means:

 

(a)           a payment made by a member of the Bank Group to a company carrying on the CWC DataCo Business, in respect of a transfer of assets from that company carrying on the CWC DataCo Business to such a member of the Bank Group; or

 

3



 

(b)           a payment made by a company carrying on the CWC DataCo Business to a member of the Bank Group, in respect of a transfer of assets from such a member of the Bank Group to that company carrying on the CWC DataCo Business,

 

in each case, in accordance with the terms of the Transaction Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(y)           all of the transactions comprising such a series of transactions (from and including the transfer of the assets by a Bank Holdco to and including the acquisition of those

 

4



 

assets by the Asset Transferring Party or vice versa) are completed within two Business Days; and

 

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

 

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

 

Associated Costs Rate” means, in relation to any Advance or Unpaid Sum, the rate determined in accordance with Schedule 6 (Associated Costs Rate).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

5



 

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

 

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

 

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

 

Available Commitment” means, in relation to a Lender, the aggregate amount of its Available Revolving Facility Commitment, its Available Ancillary Facility Commitment and its Available Term Facility Commitments or, in the context of a particular Facility, its Available A Facility Commitment, its Available B Facility Commitment, its Available Revolving Facility Commitment or its Available Ancillary Facility Commitment, as the context may require.

 

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

 

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

 

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

 

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

 

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

 

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

 

Available Term Facility Commitment” means, in relation to a Lender, the aggregate amount of its Available A Facility Commitment and its Available B Facility Commitment.

 

BBA LIBOR” means in relation to a currency other than euro, the British Bankers’ Association Interest Settlement Rate for the relevant currency and specified period.

 

B Facility” means the term loan facility granted to the Borrower pursuant to Clause 2.1(c) (The Facilities).

 

B Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by the Lenders under the B Facility or arising in respect of the B Facility under Clause 14.3 (Consolidation of Term Facility Advances) or under Clause 14.4 (Division of Term Facility Advances).

 

B Facility Commitment” means, in relation to a Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Part 1 of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Deed pursuant to which such Lender becomes a party to this Agreement.

 

6



 

B Facility Margin” means, in relation to B Facility Advances, 2.75% per annum.

 

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

 

Bank Group” means:

 

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

 

(i)            the Borrower;

 

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

 

(iii)         Moleseye Limited, for so long as it is a Subsidiary of the Borrower;

 

(iv)          Fawnspring Limited, for so long as it is a Subsidiary of the Borrower;

 

(v)            each member of the Diamond Sub-Group;

 

(vi)          following an Integrated Merger Event, each Target Group Obligor and each other person which was a Subsidiary or Holding Company of the Target immediately prior to the Integrated Merger Event which is designated as a member of the Bank Group by the Borrower pursuant to Clause 24.20 (Notice of Integrated Merger Event) or by notice to the Facility Agent from time to time and for so long as such company is a member of the Group;

 

(vii)         each of the Borrower’s other direct and indirect Subsidiaries from time to time, excluding the Bank Group Excluded Subsidiaries (other than Moleseye Limited, Fawnspring Limited and NTL South Herts); and

 

(viii)        without prejudice to sub-paragraph (vii) above, each of the direct and indirect Subsidiaries from time to time of NTL Communications Limited, excluding prior to the accession of Cableco to this Agreement, the Borrower and its direct and indirect Subsidiaries and thereafter, Cableco and its direct and indirect Subsidiaries;

 

(b)           for all other purposes:

 

(i)            the Borrower and each of its direct and indirect Subsidiaries from time to time, other than (A) the Bank Group Excluded Subsidiaries and (B) each member of the Triangle Sub-Group, until such time that the Triangle Notes have been repaid in full, as contemplated by the provisions of Clause 3.2 (Condition Subsequent relating to Diamond Sub-Group and Triangle Sub-Group);

 

(ii)           without prejudice to sub-paragraph (i) above, each of the direct and indirect Subsidiaries from time to time of NTL Communications Limited, excluding prior to the accession of Cableco to this Agreement, the Borrower and its direct and indirect Subsidiaries and thereafter, Cableco and its direct and indirect Subsidiaries; and

 

(iii)         following an Integrated Merger Event, each Target Group Obligor and each other person which was a Subsidiary or Holding Company of the Target immediately prior

 

7



 

to the Integrated Merger Event which is designated as a member of the Bank Group by the Borrower pursuant to Clause 24.20 (Notice of Integrated Merger Event) or by notice to the Facility Agent from time to time and for so long as such company is a member of the Group.

 

For information purposes only, the members of the Bank Group as at the date of this Agreement for the purposes of this paragraph (b) are listed in Part 1 of Schedule 9 (Members of the Bank Group).

 

Bank Group Cash Flow” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

Bank Group Covenant Profit” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

 “Bank Group Excluded Subsidiary” means:

 

(a)           any Subsidiary of the Borrower, NTL Communications Limited or following an Integrated Merger Event, a Subsidiary of the Target Group which is a Dormant Subsidiary and which (i) has assets (save for loans existing on the date of this Agreement owed to it by other members of the Bank Group) with an aggregate value of £10,000 or less; and (ii) is not a Guarantor;

 

(b)           Moleseye Limited;

 

(c)           Fawnspring Limited;

 

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

 

(e)           any Subsidiary of the Borrower, NTL Communications Limited or, following an Integrated Merger Event, a Subsidiary of the Target Group which is a Project Company;

 

(f)            any company which becomes a Subsidiary of the Borrower, NTL Communications Limited or, following an Integrated Merger Event, a Subsidiary of the Target Group, in each case, after the date of this Agreement pursuant to an Asset Passthrough; and

 

(g)           after Principal Separation shall have occurred in accordance with the provisions of Clause 28 (Separation of the Broadcast Business), any company which is a member of the Broadcast Group,

 

provided that any Bank Group Excluded Subsidiary (other than after Principal Separation has occurred, any member of the Broadcast Group) may, at the election of the Borrower and upon not less than 10 Business Days’ prior written notice to the Facility Agent, cease to be a Bank Group Excluded Subsidiary and become a member of the Bank Group.

 

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

 

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

 

Blocked Account” means each interest bearing account maintained with the Facility Agent in the name of an Obligor for the purposes of Clause 12.3 (Blocked Accounts) which is secured in favour of

 

8



 

the Security Trustee pursuant to the Security Documents, or as otherwise required by the terms of this Agreement.

 

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

 

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

 

exceeds:

 

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

 

Broadcast Business” means that part of the Group constituting “ntl:broadcast” relating to the provision of digital and analogue television and radio broadcast transmission services, studio play-out facilities, network design, construction and maintenance, tower site rental and satellite and media services as well as the design and operation of radio networks and voice and data services to public safety organisations as more particularly described in paragraph 2 of Part 1 of the Separation Memorandum.

 

Broadcast Group” has the meaning ascribed to it in the Separation Memorandum.  The members of the Broadcast Group as at the date of this Agreement are set out in Part 4 of Schedule 9 (Members of the Broadcast Group).

 

Broadcast Group Covenant Profit” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Budget” means in respect of any financial year the budget for such financial year and for the first Financial Quarter of the immediately succeeding financial year (provided that the Budget to be delivered under Clause 3.1 (Conditions Precedent) need only be for the financial year ending 31 December 2004), in the form and including the information required to be delivered by the Borrower to the Facility Agent pursuant to Clause 22.3 (Budget).

 

Budgeted Capital Expenditure” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

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

 

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

 

Cable & Wireless” means Cable & Wireless plc, a company incorporated in England & Wales with company number 238525.

 

9



 

Cableco” means NTL Cable PLC, a company incorporated in England & Wales with company number 5061787 which shall accede to the terms of this Agreement on or prior to the Closing Date as a Guarantor.

 

Capital Expenditure” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

Cash” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Cash Equivalent Investment” means:

 

(a)           debt securities denominated in Dollars, Sterling or euro issued or fully guaranteed or fully insured by any member state of the European Union or the United States of America (or any agency of it) rated at least A-2 by Standard & Poor’s and P-2 by Moody’s and having maturities of 12 months or less from the date of acquisition;

 

(b)           certificates of deposit of, or time deposits or overnight bank deposits with, any commercial bank whose short-term securities are rated at least A-2 by Standard and Poor’s and P-2 by Moody’s and having maturities of 12 months or less from the date of acquisition;

 

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

 

(d)           medium term fixed or floating rate notes of an issuer rated at least AA by Standard & Poor’s and/or Aa2 by Moody’s at the time of acquisition and having a remaining term of 12 months or less from the date of acquisition; or

 

(e)           any investment in a money market fund (i) whose aggregate assets exceed £500 million and (ii) at least 90% of whose assets constitute Cash Equivalent Investments of the type described in paragraphs (a) to (d) of this definition.

 

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

 

Change in Tax Law” means the introduction, implementation, repeal, withdrawal or change in, or in the interpretation, administration or application of any Law relating to taxation after the date of this Agreement.

 

Change of Control” means:

 

(a)           any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than any Permitted Holder or a group of Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this paragraph (a) such person or group shall be deemed to have “beneficial ownership” of all shares that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 30% of the total voting power of the Voting Stock of the Ultimate Parent (for the purposes of this paragraph (a), such person shall be deemed to beneficially own any Voting Stock of an entity held by any other entity (the “parent entity”), if such other entity is the beneficial owner (as defined in this paragraph (a)), directly or indirectly, of more than 50% of the voting power of the Voting Stock of such parent entity);

 

10



 

(b)           during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors of the Ultimate Parent (together with any new directors whose election by such board of directors or whose nomination for election by the shareholders of such company was approved by a vote of a majority of the directors of such company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors of the Ultimate Parent, then in the office; or

 

(c)           any “Change of Control” occurs under the High Yield Notes or (if applicable) any High Yield Refinancing, in each case, for so long as any principal amount remains owing under the same and to the extent such High Yield Notes or (if applicable) High Yield Refinancing are not defeased,

 

provided it shall not constitute a Change of Control under paragraph (a) above in the event that the Ultimate Parent becomes a wholly-owned Subsidiary of a Holding Company and the stockholders of such Holding Company are substantially the same as the stockholders of the Ultimate Parent prior to such acquisition.

 

Closing Date” means the date on which the first Utilisation is made pursuant to and in accordance with the terms of this Agreement.

 

Commitment” means, in relation to a Lender, its A Facility Commitment, its B Facility Commitment, its Revolving Facility Commitment and/or its Ancillary Facility Commitment, as the context may require.

 

Commitment Letter” means the letter dated on or about the date of this Agreement from the Mandated Lead Arrangers to the Ultimate Parent and the Borrower in relation to the commitment of the Mandated Lead Arrangers to arrange and underwrite the Facilities.

 

Compliance Certificate” means:

 

(a)           in the case of a Compliance Certificate required to be delivered under paragraph (a) of Clause 22.5 (Compliance Certificates), a certificate substantially in the form set out in Part 1 of Schedule 8 (Form of Quarterly Compliance Certificate); or

 

(b)           in the case of a Compliance Certificate required to be delivered under paragraph (b) of Clause 22.5 (Compliance Certificates), a certificate substantially in the form set out in Part 2 of Schedule 8 (Form of Compliance Certificate following Integrated Merger Event),

 

or in each case, such other similar form as the Facility Agent shall agree with the Borrower.

 

Consolidated Debt Service” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Consolidated Net Borrowings” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Consolidated Net Income” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Consolidated Senior Debt” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Consolidated Total Debt” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Consolidated Total Net Cash Interest Payable” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

11



 

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

 

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

 

Core Group” has the meaning ascribed to it in the Separation Memorandum.

 

Cost” means the cost estimated in good faith by the relevant member of the Bank Group to have been incurred or to be received by that member of the Bank Group in the provision or receipt of the relevant service, facility or arrangement, including, without limitation, a reasonable proportion of the employment, property, information technology, administration, utilities, transport and materials costs incurred or received in the provision or receipt of such service, facility or arrangement, but excluding costs which are either not material or not directly attributable to the provision or receipt of the relevant service, facility or arrangement.

 

Current Assets” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Current Liabilities” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

CWC” means NTL (CWC) Limited (formerly known as Cable & Wireless Communications Limited), a company registered in England & Wales with company number 3288998.

 

CWC ConsumerCo Business” means the residential cable, business cable, indirect residential telephony, residential internet and digital television development and services businesses owned and operated by CWC and its Subsidiaries and acquired by the Group on 30 May 2000.

 

CWC DataCo Business” means the corporate, business, internet protocol and wholesale operations previously carried on by CWC and its Subsidiaries and acquired by Cable & Wireless on 30 May 2000.

 

Debt Proceeds” means the cash proceeds received in respect of any Financial Indebtedness raised by any member of the Group (after deducting all reasonable fees, commissions, costs and expenses incurred by any member of the Group in connection with such raising) whether raised by way of bilateral or syndicated credit facilities, in the international or domestic debt capital markets or otherwise and including, for the avoidance of doubt, any debt which at any time following issuance is capable of being converted or exchanged into equity.

 

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

 

Designated Broadcast Assets” has the meaning ascribed to it in the Separation Memorandum.

 

12



 

Diamond Cable” means Diamond Cable Communications Limited, a company registered in England and Wales with company number 02965241.

 

Diamond Holdings” means Diamond Holdings Limited, a company registered in England and Wales with company number 03483724.

 

Diamond Notes” means, collectively, the (a) 10% Senior Notes due 2008 issued by Diamond Holdings (and guaranteed by Diamond Cable) under an indenture dated 6 February 1998 and (b) 9 1/8% Senior Notes due 2008 issued by Diamond Holdings (and guaranteed by Diamond Cable) under an indenture dated 6 February 1998.

 

Diamond Sub-Group” means Diamond Cable (for so long as it remains a member of the Group) and its Subsidiaries from time to time.  For information purposes only, members of the Diamond Sub-Group as at the date of this Agreement are set out in Part 2 of Schedule 9 (Members of the Diamond Sub-Group).

 

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

 

Dormant Subsidiary” means, at any time, with respect to any company, any Subsidiary of such company which is “dormant” as defined in section 249AA of the Act (or the equivalent under the laws of the jurisdiction of incorporation of the relevant company).

 

Double Taxation Treaty” means in relation to a payment of interest on an Advance made to the Borrower, any convention or agreement between the government of the Relevant Tax Jurisdiction of the Borrower and any other government for the avoidance of double taxation with respect to taxes on income and capital gains which makes provision for exemption from tax imposed by the Relevant Tax jurisdiction of the Borrower on interest.

 

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

 

Eligible Deposit Bank” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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 the third stage of EMU.

 

Encumbrance” means:

 

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

 

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

 

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

 

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

 

13



 

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

 

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

 

(c)           land (including land under water).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Equity Proceeds” means the cash proceeds raised by any member of the Group by way of equity securities offerings in the international or domestic equity capital markets (after deducting all reasonable fees, commissions, costs and expenses incurred by any member of the Group in connection with such raising) and which do not constitute Debt Proceeds.

 

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

 

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

 

(b)           if no such rate is displayed and the Facility Agent shall not have selected an alternative service on which such rate is displayed as contemplated by the definition of “Relevant Page”, the arithmetic mean (rounded upwards, if not already such a multiple, to 5 decimal places) of the rates (as notified to the Facility Agent) at which each of the Reference Banks was offering to prime banks in the European Interbank Market deposits in euro for such period at or about 11.00 am (Brussels time) on the Quotation Date for such period.

 

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

 

14



 

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

 

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

 

Excess Cash Flow” means in relation to any financial year of the Borrower, Bank Group Cash Flow less Consolidated Debt Service for such financial year, provided that for the purposes of such calculation, no amount shall be included or excluded more than once.

 

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

 

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

 

Existing Performance Bonds” means each of the performance bonds existing as at the date of this Agreement, details of which are set out in Part 4 of Schedule 10 (Existing Performance Bonds).

 

Excluded Group Covenant Profit” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Existing Encumbrance” means any Encumbrance existing at the date of this Agreement, details of which are set out in Part 1 of Schedule 10 (Existing Encumbrances).

 

Existing Financial Indebtedness” means the Financial Indebtedness existing at the date of this Agreement, details of which are set out in Part 3 of Schedule 10 (Existing Financial Indebtedness).

 

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

 

Existing Senior Credit Facilities Agreement” means that certain senior credit facility dated 30 May 2000 made between NTL Incorporated, NTL Communications Limited, the Borrower, the Guarantors listed therein, J.P. Morgan plc and Morgan Stanley Senior Funding, Inc. as arrangers and joint book managers of the revolving facilities, J.P. Morgan Europe Limited as agent and security trustee and the banks listed therein, as the same may have been amended and restated from time to time.

 

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

 

Facilities” means the Term Facilities, the Revolving Facility, any Ancillary Facility and any Documentary Credit granted to the Borrower under this Agreement, and “Facility” means any of them, as the context may require.

 

Facility Agent’s Spot Rate of Exchange” means, in relation to 2 currencies, the Facility Agent’s spot rate of exchange for the purchase of the first-mentioned currency with the second-mentioned currency in the London foreign exchange market at or about 11 a.m. on a particular day.

 

15



 

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

 

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

 

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

 

 “Final Maturity Date” means:

 

(a)           in respect of the Revolving Facility, the date falling 84 months after the date of this Agreement;

 

(b)           in respect of the A Facility, the date falling 84 months after the date of this Agreement; and

 

(c)           in respect of the B Facility, the date falling 96 months after the date of this Agreement.

 

Finance Documents” means:

 

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

 

(b)           the Fee Letters;

 

(c)           any Ancillary Facility Documents;

 

(d)           the Security Documents;

 

(e)           the Group Intercreditor Agreement;

 

(f)            the HYD Intercreditor Agreement;

 

(g)           following an Integrated Merger Event, the Pari Passu Intercreditor Agreement;

 

(h)           the Hedging Agreements entered into pursuant to Clause 24.10 (Hedging);

 

(i)            any other agreement or document entered into or executed by a member of the Bank Group pursuant to any of the foregoing documents; and

 

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

 

Finance Parties” means the Agents, the Mandated Lead Arrangers, the Security Trustee, the Lenders and each Hedge Counterparty and “Finance Party” means any of them.

 

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

 

(a)           moneys borrowed;

 

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

 

16



 

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

 

(d)           the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with applicable GAAP, be treated as a finance or capital lease;

 

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

 

(f)            the amount of any liability in respect of any purchase price for assets or services the payment of which is deferred for a period in excess of 120 days in order to raise finance or to finance the acquisition of those assets or services;

 

(g)           any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

 

(h)           any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

 

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

 

(j)            any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial or other institution; or

 

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

 

Financial Officer” means the Chief Financial Officer, the Vice President – Finance, the Controller or the Group Treasurer, in each case, of the Borrower or of the Group, or any similar officer of the Borrower or of the Group.

 

Financial Quarter” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

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

 

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

 

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

 

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

 

17



 

(i)            first made available by the Bank Holdco to (in the case of Cableco) the Borrower or, (in the case of NTL Communications Limited or the company which is the Holding Company for the Target Group), one of its Subsidiaries (other than in the case of NTL Communications Limited, Cableco or any of its Subsidiaries) by way of the subscription for new securities, capital contribution or Subordinated Funding;

 

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

 

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

 

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

 

(ii)           finally made by the Borrower to Cableco or by one of the Subsidiaries of NTL Communications Limited (other than Cableco or any of its Subsidiaries) to NTL Communications Limited or by a member of the Target Group to the company which is the Holding Company for the Target Group by way of dividend or other distribution, loan or the payment of interest on or the repayment of the principal amount of any loan made by way of Subordinated Funding.

 

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

 

Group” means:

 

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

 

(i)            the Ultimate Parent and its Subsidiaries for the time being;

 

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

 

(iii)         following a Merger Event, each member of the Target Group (for so long as it remains a Subsidiary of the Group); and

 

(b)           for all other purposes, the Ultimate Parent and its Subsidiaries from time to time including, following a Merger Event, each member of the Target Group, but excluding upon and following Principal Separation having occurred in accordance with the provisions of Clause 28 (Separation of the Broadcast Business), each member of the Broadcast Group.

 

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

 

18


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

 

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

 

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

 

(d)                                  to the extent permitted by this Agreement, the provision of Content,

 

and any related ancillary or complementary business to any of the services described above in the United Kingdom, Ireland, the Isle of Man and the Channel Islands provided that “Group Business” may include the provision of any such services outside the United Kingdom, Ireland, the Isle of Man and the Channel Islands which either (i) relate to the Broadcast Business or (ii) which constitute a non-material part of the Group Business and which are acquired pursuant to an acquisition permitted under the terms of this Agreement.

 

Group Intercreditor Agreement” means the intercreditor agreement dated on or about the Closing Date between certain of the Obligors, other members of the Group or the Broadcast Group and the Finance Parties.

 

Group Structure Chart” means the group structure chart delivered to the Facility Agent pursuant to paragraph 6 of Part 1 of Schedule 4 (Conditions Precedent to First Utilisation) or any updated group structure chart which is delivered to the Facility Agent pursuant to Clause 24.15 (Group Structure Chart) from time to time.

 

Guarantors” means

 

(a)                                  for the purposes of Clause 30 (Guarantee and Indemnity), Cableco, the Original Guarantors and any Acceding Guarantors; and

 

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

 

and “Guarantor” means any one of them as the context requires, provided that in either case, such person has not been released from its rights and obligations as a Guarantor hereunder pursuant to Clause 28 (Separation of the Broadcast Business) or Clause 44.5 (Release of Guarantees or Security).

 

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

 

Hedge Counterparty” means each Lender or Affiliate of a Lender which is a party to a Hedging Agreement entered into for the purposes of Clause 24.10 (Hedging) and “Hedge Counterparties” means all such Lenders or Affiliates.

 

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

 

High Yield Offering” means the offering of the High Yield Notes by Cableco pursuant to an exemption from registration under the United States Securities Act of 1933 including pursuant to Rule 144A and/or Regulation S of the United States Securities Act of 1933.

 

19



 

High Yield Notes” means the senior unsecured high yield notes issued by Cableco pursuant to the High Yield Offering, the proceeds of which are to be applied in accordance with paragraph 8(c) of Part 1 to Schedule 4 (Conditions Precedent to First Utilisation), including without limitation, any floating rate high yield notes (the “Floating Rate Notes”) issued as part of the High Yield Offering.

 

High Yield Refinancing” means any Financial Indebtedness incurred for the purposes of refinancing all or a portion of the High Yield Notes, or for the purposes of refinancing the Financial Indebtedness incurred to refinance the Floating Rate Notes (the “Refinancing High Yield Notes”) including any Financial Indebtedness incurred for the purpose of the payment of all principal, interest, fees, expenses, commissions, make-whole and any other contractual premium payable under the High Yield Notes or Refinancing High Yield Notes being refinanced and any reasonable fees, costs and expenses incurred in connection with such refinancing, in respect of which the following terms apply:

 

(a)                                  the final maturity date or redemption date of such refinancing (including without limitation, the payment of any accreting principal in respect of any make-whole premium payable on any Refinancing High Yield Notes issued at a discount) occurs on or after the scheduled redemption date in respect of the high yield notes being refinanced;

 

(b)                                  the average life of the High Yield Refinancing is longer than (or in respect of a refinancing in part, is equal to) the remaining average life of the high yield notes which are being refinanced, as at the time of such refinancing;

 

(c)                                  taking into account any hedging arrangements for the principal and interest on the High Yield Refinancing, the interest rate per annum payable in cash on such Financial Indebtedness:

 

(i)                                    in respect of any High Yield Refinancing of the Floating Rate Notes, shall be at a fixed rate which does not exceed the higher of (x) 8.75% per annum and (y) the aggregate of (A) LIBOR for Dollars for a period of three months at the relevant time that the High Yield Refinancing is priced, (B) the original margin on the Floating Rate Notes being refinanced and (C) 50 basis points; and

 

(ii)                                in respect of any High Yield Refinancing other than as specified in sub-paragraph (i) above, (A) which is completed in the first five years after the original issuance of such high yield notes, shall not exceed the higher of interest payable in cash on such high yield notes or 10% per annum, or (B) which is completed at any time thereafter, shall not exceed 10% per annum; and

 

(d)                                  the Financial Indebtedness constituted by any High Yield Refinancing is structurally subordinated to the Facilities on a basis no less favourable to the Facilities than the basis on which the High Yield Notes are subordinated to the Facilities.

 

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

 

HYD Intercreditor Agreement” means (a) the intercreditor agreement dated on or about the Closing Date between certain of the Obligors, the Finance Parties and the indenture trustee in respect of the High Yield Notes and any High Yield Refinancings, and (b) to the extent a High Yield Refinancing occurs and an intercreditor agreement is entered into on substantially similar terms to the intercreditor agreement referred to in paragraph (a) in connection with such High Yield Refinancing, that intercreditor agreement, in each case, as the same may be amended, supplemented, novated or restated from time to time.

 

Increased Cost” means:

 

20



 

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

 

(b)                                  any additional or increased cost; or

 

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

 

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

 

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

 

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

 

Information Memorandum” means the information memorandum to be dated April 2004 in a form approved by the Borrower (such approval not to be unreasonably withheld or delayed) concerning the Obligors which, at the request of the Borrower and on its behalf, is prepared in relation to the Facilities and the business, assets, financial condition and prospects of the Group and which is made available by the Mandated Lead Arrangers to selected banks and other institutions for the purpose of syndication of the Facilities.

 

Initial Security Documents” means the documents listed in Part 3 of Schedule 4 (Initial Security Documents).

 

Instructing Group” means:

 

(a)                                  before any Utilisation of the Facilities under this Agreement, a Lender or group of Lenders whose Available Commitments amount in aggregate to more than 66 2/3% of the Available Facilities; and

 

(b)                                  thereafter, a Lender or group of Lenders to whom in aggregate more than 66 2/3% of the aggregate amount of the Outstandings are (or if there are no Outstandings at such time, immediately prior to their repayment, were then) owed.

 

Integrated Merger Event” means the designation by the Borrower of an Integrated Merger Event and the notification to the Facility Agent pursuant to Clause 24.20 (Notice of Integrated Merger Event) (subject to satisfaction of the Merger Event Conditions) of the proposed effective date of such Integrated Merger Event, the purpose of which is to enable the Borrower to better integrate the businesses of the Bank Group and the businesses of the Target Group.

 

Integrated Merger Projected Debt Coverage Ratio” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

 “Integrated Merger Senior Leverage Ratio” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Integrated Merger Trailing Debt Coverage Ratio” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

21



 

Interest” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

Intra-Group Services” means:

 

(a)                                  the provision of services, facilities or other arrangements not the subject of paragraph (d) below, by a member of the Bank Group to a member of the Group (other than a member of the Bank Group) or a member of the Broadcast Group or by a member of the Group (other than a member of the Bank Group) or a member of the Broadcast Group to a member of the Bank Group, provided that the consideration for the provision thereof is in the reasonable opinion of the Borrower, no less than Cost;

 

(b)                                  the provision of services constituted by NTL Group Limited employing personnel, acting as agent to buy equipment or other assets or services or trade with residential customers on behalf of other members of the Group or following Principal Separation, any member of the Broadcast Group, provided that the consideration for the provision thereof is, in the reasonable opinion of the Borrower, no less than Cost;

 

(c)                                  the provision of services constituted by NTL Business Limited acting as agent to trade with business customers on behalf of other members of the Group or following Principal Separation, any member of the Broadcast Group, provided that the consideration for the provision thereof is, in the reasonable opinion of the Borrower, no less than Cost; and

 

(d)                                  the provision of services, facilities or other arrangements (i) contemplated by Part 3 of the Separation Memorandum provided that in the case of the provision of services, facilities or other arrangements by a member of the Core Group, the consideration for the provision thereof by any member of the Core Group to the Broadcast Group or to a third party purchaser is not less than the amounts prescribed by the Agreed Allocation Principles or, at the Borrower’s election, Cost, or (ii) as contemplated by Part 6 of the Separation Memorandum.

 

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

 

Law” means:

 

(a)                                  common or customary law;

 

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

 

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

 

L/C Bank” means Credit Suisse First Boston or any other Lender which has been appointed as L/C Bank in accordance with Clause 5.11 (Appointment and Change of L/C Bank) and which has not resigned in accordance with paragraph (c) of Clause 5.11 (Appointment and Change of L/C Bank).

 

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

 

22



 

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

 

Legal Opinions” means any of the legal opinions referred to in paragraph 10 of Part 1 to Schedule 4 (Conditions Precedent to First Utilisation) and paragraph 2 of Part 2 to Schedule 7 (Accession Documents) required to be delivered pursuant to Clause 3.1 (Conditions Precedent) and Clause 26 (Acceding Guarantors and Acceding Holding Company), respectively.

 

Lender” means a person (including each L/C Bank and each Ancillary Facility Lender) which:

 

(a)                                  is named in Part 1 of Schedule 1 (Lenders and Commitments); or

 

(b)                                  has become a party to this Agreement in accordance with the provisions of Clause 38 (Assignments and Transfers),

 

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

 

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

 

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

 

(b)                                  if no such rate is displayed and the Facility Agent shall not have selected an alternative service on which such rate is displayed as contemplated by the definition of “Relevant Page”, the arithmetic mean (rounded upwards, if not already such a multiple, to the nearest 5 decimal places) of the rates (as notified to the Facility Agent) at which each of the Reference Banks was offering to prime banks in the London interbank market deposits in the relevant currency for such period at or about 11.00 am on the Quotation Date for such period.

 

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

 

Material Adverse Effect” means a material adverse change in:

 

(a)                                  the financial condition, assets or business of the Obligors (taken as a whole) (excluding for these purposes, any member of the Broadcast Group insofar as it relates to the Broadcast Business); or

 

(b)                                  the ability of any Obligor (excluding for these purposes, any member of the Broadcast Group insofar as it relates to the Broadcast Business) to perform and comply with its payment or other material obligations under any Finance Document (taking into account the resources available to such Obligor from any other member of the Group or the Broadcast Group).

 

Material Subsidiary” means, at any time, a member of the Bank Group (other than a member of the Broadcast Group) whose contribution to Bank Group Covenant Profit (on a consolidated basis if it has Subsidiaries) represents at least 5% of the Bank Group Covenant Profit.

 

Member State” means a member of the European Community.

 

23



 

Merger Event” means:

 

(a)                                  the merger, amalgamation or consolidation of the Ultimate Parent, or any Holding Company or wholly-owned Subsidiary of the Ultimate Parent, with a Target or any Holding Company or wholly-owned Subsidiary of a Target which results in the Group and the Target Group forming one and the same group of companies;

 

(b)                                  the acquisition by the Ultimate Parent, or any Holding Company or wholly-owned Subsidiary of the Ultimate Parent, of the total issued share capital of, a Target or any Holding Company or wholly-owned Subsidiary of a Target and which results in all or substantially all of the assets and business of the Target Group being acquired by, and forming a part of, the Group; or

 

(c)                                  the acquisition by a Target or any Holding Company or wholly-owned Subsidiary of the Target of the total issued share capital of, the Ultimate Parent, or any Holding Company or wholly-owned Subsidiary of the Ultimate Parent and which results in all or substantially all of the assets and business of the Group being acquired by, and forming a part of, the Target Group,

 

and which the Borrower designates by written notice to the Facility Agent as the “Merger Event” for the purposes of this Agreement, provided that only one such designation may be permitted during the term of the Facilities.

 

Merger Event Conditions” means, in relation to an Integrated Merger Event:

 

(a)                                  either:

 

(i)                                    the Borrower shall have satisfied each of the Merger Event Integration Tests as at close of business on the effective date of the Integrated Merger Event; or

 

(ii)                                the prior consent of an Instructing Group shall have been obtained to such Integrated Merger Event;

 

(b)                                  save as permitted pursuant to the proviso to Clause 24.13 (Further Assurance), such members of the Target Group who are to become members of the Bank Group upon the Integrated Merger Event shall have acceded to this Agreement as Acceding Guarantors pursuant to Clause 26.1 (Acceding Guarantors), as are necessary to ensure that immediately following the Integrated Merger Event, the 95% Security Test would be satisfied, where the 95% Security Test is calculated by reference to the aggregate of (i) Bank Group Covenant Profit for the Financial Quarter ending on the most recent Quarter Date prior to the effective date of the Integrated Merger Event and (ii) Target Group Covenant Profit for the most recent quarter period ending on the date prior to the effective date of the Integrated Merger Event for which the most recent quarterly financial information is available for the Target Group; and

 

(c)                                  the Security Trustee is granted first ranking security interests over (i) all or substantially all of the assets and undertakings of each Target Group Obligor (other than any asset which the security trustee or security agent in respect of the Target Group Financial Indebtedness or Target Group Refinancing Indebtedness has agreed may be excluded from the corresponding security documents granted or to be granted in respect of the Target Group Financial Indebtedness and/or Target Group Refinancing Indebtedness and which is in existence on and following the effective date of the Integrated Merger Event, or which the Security Trustee agrees may be excluded from such security (provided that the Security Trustee shall not agree to exclude any asset of a Target Group Obligor from such security where the net book value of such asset exceeds £3 million (or its equivalent in other currencies) without the prior consent of an Instructing Group (not to be unreasonably withheld or delayed)) on terms

 

24



 

substantially similar to the relevant Security Documents executed by members of the Bank Group prior to such Integrated Merger Event; and (ii) all of the issued share capital of each Target Group Obligor from the prospective shareholders of such Target Group Obligor after the Integrated Merger Event, in each case, for the purposes of securing the guarantees given by each such Target Group Obligor under paragraph (b) above.

 

Merger Event Integration Tests” means:

 

(a)                                  the aggregate principal amount of any Target Group Financial Indebtedness and any Target Group Refinancing Indebtedness (without double counting) incurred on a senior secured basis and ranking pari passu with the obligations under this Agreement does not exceed £1,250,000,000 (or its equivalent in other currencies);

 

(b)                                  there is no decrease in the credit ratings of the Facilities assigned by Standard and Poor’s and Moody’s to such debt (if any) immediately prior to the Integrated Merger Event and there is no change in outlook for such credit ratings;

 

(c)                                  the Integrated Merger Senior Leverage Ratio does not exceed 2.95:1;

 

(d)

(i)

the Integrated Merger Trailing Debt Coverage Ratio shall not be less than the ratio set out in the table below opposite the Quarter Date immediately prior to the proposed effective date of the Integrated Merger Event; and

 

(ii)

the Integrated Merger Projected Debt Coverage Ratio as at (A) the Quarter Date falling at the end of the first full Financial Quarter after the effective date of the Integrated Merger Event, and (B) as at each subsequent Quarter Date thereafter, shall be projected in the combined business plan of the Bank Group and Target Group to not be less than the ratio set forth in the table below opposite such Quarter Date, in each case, calculated on a rolling twelve month basis, provided that in respect of each Quarter Date falling at the end of each of the first three full Financial Quarters from the effective date of the Integrated Merger Event, such calculations shall be made on an annualised basis for the period between the Quarter Date at the beginning of the first full Financial Quarter arising after the Integrated Merger Event and ending on such Quarter Date;

 

Quarter Date

 

Ratio

 

 

 

 

 

30 June 2004

 

1.46

x

 

 

 

 

30 September 2004

 

1.42

x

 

 

 

 

31 December 2004

 

1.54

x

 

 

 

 

31 March 2005

 

1.52

x

 

 

 

 

30 June 2005

 

1.55

x

 

 

 

 

30 September 2005

 

1.51

x

 

 

 

 

31 December 2005

 

1.53

x

 

 

 

 

31 March 2006

 

1.46

x

 

 

 

 

30 June 2006

 

1.51

x

 

 

 

 

31 March 2008

 

1.45

x

 

 

 

 

30 June 2008

 

1.51

x

 

 

 

 

30 September 2008

 

1.34

x

 

 

 

 

31 December 2008

 

1.37

x

 

 

 

 

31 March 2009

 

1.37

x

 

 

 

 

30 June 2009

 

1.40

x

 

 

 

 

30 September 2009

 

1.50

x

 

 

 

 

31 December 2009

 

1.54

x

 

 

 

 

31 March 2010

 

1.57

x

 

25



 

Quarter Date

 

Ratio

 

 

 

 

 

30 September 2006

 

1.43

x

 

 

 

 

31 December 2006

 

1.50

x

 

 

 

 

31 March 2007

 

1.42

x

 

 

 

 

30 June 2007

 

1.47

x

 

 

 

 

30 September 2007

 

1.43

x

 

 

 

 

31 December 2007

 

1.48

x

 

 

 

 

30 June 2010

 

1.61

x

 

 

 

 

30 September 2010

 

1.65

x

 

 

 

 

31 December 2010

 

1.69

x

 

 

 

 

31 March 2011 and thereafter

 

1.72

x

 

(e)                                  subject to paragraph (f) below, the ratio of (i) the aggregate of (A) projected Consolidated Net Borrowings as of the close of business on the proposed effective date of the Integrated Merger Event plus (without double counting) (B) Pro Forma Target Group Debt (provided that for the purposes of calculating the aggregate figure for this sub-paragraph (i), if the aggregate of the Cash balances deducted from Consolidated Total Debt in arriving at Consolidated Net Borrowings is less than £200 million (or its equivalent in other currencies), an amount of cash and the value of any Cash Equivalent Investments held by the Target Group may be deducted from Pro Forma Target Group Debt, provided further that in no event may the aggregate of all such amounts deducted for the purposes of this sub-paragraph (i) exceed £200 million (or its equivalent in other currencies)), to (ii) the aggregate of (A) Bank Group Covenant Profit calculated on an annualised basis for the Semi-Annual Period ending on the Quarter Date of the Bank Group immediately prior to the proposed effective date of the Integrated Merger Event and (B) Target Group Covenant Profit calculated on an annualised basis for the Semi-Annual Period ending on the Quarter Date for the Target Group immediately prior to the proposed effective date of the Integrated Merger Event shall not be more than X (where X has the value indicated opposite the Quarter Date immediately prior to the proposed effective date of the Integrated Merger Event in the table set out in paragraph (d) to Clause 23.2 (Ratios) under the caption “Net Debt Leverage Ratio”);

 

(f)                                    if:

 

(i)                                    the Borrower has designated any Target Group Acquisition Indebtedness to be serviced from the Bank Group pursuant to a written notice delivered to the Facility Agent prior to the proposed effective date of the Integrated Merger Event; and/or

 

(ii)                                (A) the amount of Target Group Interim Indebtedness plus Target Group Financial Indebtedness included for the purposes of the Merger Event Integration Tests exceeds the amount of Target Group Financial Indebtedness as of the date of the Unintegrated Merger Event; and (B) during the period between the effective date of the Unintegrated Merger Event and the proposed effective date of the Integrated Merger Event, the Target Group has entered into or made acquisitions of businesses or investments in joint ventures outside the ordinary course of business (in each case excluding businesses or joint ventures acquired from or entered into with any other member of the Group and excluding acquisitions of assets made in exchange for similar assets) or paid any dividends or distributions to any member of the Group other than to another member of the Target Group or to a member of the Bank Group where the consideration paid, the investments contractually committed and the dividends and distributions paid in aggregate exceed £250 million (or its equivalent in other currencies),

 

26



 

then the provisions of paragraph (e) above shall not apply and in replacement thereof, the ratio of (i) the aggregate of (A) projected Consolidated Net Borrowings, as of the close of business on the proposed effective date of the Integrated Merger Event, calculated on a pro forma basis to include the aggregate principal amount of Target Group Acquisition Indebtedness to be serviced from the Bank Group plus (without double counting) (B) Pro Forma Target Group Debt (provided that for the purposes of calculating the aggregate figure for this sub-paragraph (i), if the aggregate of the Cash balances deducted from Consolidated Total Debt in arriving at Consolidated Net Borrowings is less than £200 million (or its equivalent in other currencies), an amount of cash and the value of Cash Equivalent Investments held by the Target Group may be deducted from Pro Forma Target Group Debt, provided further that in no event may the aggregate of all such amounts deducted for the purposes of this sub-paragraph (i) exceed £200 million (or its equivalent in other currencies)) to (ii) the aggregate of (A) Bank Group Covenant Profit calculated on an annualised basis for the Semi-Annual Period ending on the Quarter Date of the Bank Group immediately prior to the proposed effective date of the Integrated Merger Event and (B) Target Group Covenant Profit calculated on an annualised basis for the Semi-Annual Period ending on the Quarter Date for the Target Group immediately prior to the proposed effective date of the Integrated Merger Event, shall not be more than the ratio which is the higher of the following ratios:

 

(x)                                  the ratio set forth in the table below opposite the Quarter Date immediately prior to the proposed effective date of the Integrated Merger Event; and

 

Quarter Date

 

Ratio

 

 

 

 

 

30 June 2004

 

4.40

x

 

 

 

 

30 September 2004

 

4.05

x

 

 

 

 

31 December 2004

 

3.60

x

 

 

 

 

31 March 2005

 

3.49

x

 

 

 

 

30 June 2005

 

3.45

x

 

 

 

 

30 September 2005

 

3.42

x

 

 

 

 

31 December 2005

 

3.37

x

 

 

 

 

31 March 2006

 

3.21

x

 

 

 

 

30 June 2006

 

3.12

x

 

 

 

 

30 September 2006

 

2.96

x

 

 

 

 

31 December 2006

 

2.90

x

 

 

 

 

31 March 2007

 

2.73

x

 

 

 

 

30 June 2007

 

2.66

x

 

 

 

 

30 September 2007

 

2.51

x

 

 

 

 

31 December 2007

 

2.46

x

 

 

 

 

31 March 2008

 

2.30

x

 

 

 

 

30 June 2008

 

2.27

x

 

 

 

 

30 September 2008

 

2.10

x

 

 

 

 

31 December 2008

 

2.08

x

 

 

 

 

31 March 2009

 

1.92

x

 

 

 

 

30 June 2009

 

1.88

x

 

 

 

 

30 September 2009

 

1.76

x

 

 

 

 

31 December 2009

 

1.75

x

 

 

 

 

31 March 2010

 

1.61

x

 

 

 

 

30 June 2010

 

1.59

x

 

 

 

 

30 September 2010

 

1.47

x

 

 

 

 

31 December 2010

 

1.47

 

 

 

 

 

31 March 2011 and thereafter

 

1.34

x

 

(y)                                  the actual ratio of Consolidated Net Borrowings to Bank Group Covenant Profit for the Quarter Date immediately prior to the proposed effective date of the Integrated Merger Event calculated with respect to the Bank Group only (without including any

 

27



 

members of the Target Group) and in the manner set forth in paragraph (a) of Clause 23.2 (Ratios), provided that the ratio in this paragraph (y) shall in no event be higher than X (where X has the value indicated opposite the Quarter Date immediately prior to the proposed effective date of the Integrated Merger Event, in the table set out in paragraph (d) of Clause 23.2 (Ratios) under the caption “Net Debt Leverage Ratio”) and

 

(g)                                 the ratio of (i) (A) Bank Group Covenant Profit calculated on an annualised basis for the Semi-Annual Period ending on the Quarter Date of the Bank Group immediately prior to the proposed effective date of the Integrated Merger Event plus (B) Target Group Covenant Profit calculated on an annualised basis for the Semi-Annual Period ending on the Quarter Date of the Target Group immediately prior to the proposed effective date of the Integrated Merger Event, to (ii) (A) Consolidated Total Net Cash Interest Payable calculated on an annualised basis for such Semi-Annual Period relating to the Bank Group (as constituted immediately prior to the effective date of the Integrated Merger Event) plus (without double counting) (B) Pro Forma Target Group Net Cash Interest Payable, calculated on an annualised basis for such Semi-Annual Period relating to the Target Group, shall be not less than Y (where Y has the value indicated opposite the Quarter Date immediately prior to the proposed effective date of the Integrated Merger Event in the table set out in paragraph (d) to Clause 23.2 (Ratios) under the caption “Net Interest Coverage Ratio”)),

 

provided that:

 

(i)                                    no Target Group Financial Indebtedness or Target Group Refinancing Indebtedness which is to be repaid by close of business on the proposed effective date of the Integrated Merger Event (or any amounts of Interest payable thereon) shall be taken into account in assessing compliance with any of the tests set out in this definition; and

 

(ii)                                for the purposes of assessing satisfaction with the Merger Event Integration Tests and the Merger Event Conditions, the calculations relating to the trailing Target Group Cash Flow and Target Group Covenant Profit shall be by reference to the financial information for Target Group for the relevant period, adjusted for GAAP and to reflect the accounting policies, practices and procedures of the Bank Group then in effect in accordance with Clause 22.1 (Financial Information).

 

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

 

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

 

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

 

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

 

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

 

Net Proceeds” means:

 

(a)                                  any cash proceeds received by any member of the Bank Group (including, when received, any cash proceeds received by way of deferred instalment of purchase price or from the sale of

 

28



 

Cash Equivalent Investments or Marketable Securities acquired by any member of the Bank Group in consideration for any disposal as contemplated under Clause 25.6 (Disposals)) in connection with the sale, transfer, lease, surrender, loan or other disposal of an asset by any member of the Bank Group after deducting:

 

(i)                                    all taxes paid or reasonably estimated by the Borrower to be payable as a result of that disposal;

 

(ii)                                all reasonable fees, commissions costs and expenses incurred by any member of the Bank Group in arranging or effecting that disposal; and

 

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

 

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

 

Non-Bank Group Serviceable Debt” means:

 

(a)                                  Financial Indebtedness arising under the High Yield Notes and any High Yield Refinancings;

 

(b)                                  upon the occurrence of an Integrated Merger Event, and subject to satisfaction of the test set out in paragraph (f) of the definition of “Merger Event Integration Tests”, any Target Group Acquisition Indebtedness and at any time thereafter, any Target Group Acquisition Refinancing Indebtedness which, in any case, the Borrower has designated as Non-Bank Group Serviceable Debt by notice in writing to the Facility Agent delivered not less than 5 Business Days’ prior to the Integrated Merger Event or the incurrence of the Target Group Acquisition Refinancing Indebtedness, as the case may be;

 

(c)                                upon the occurrence of a Merger Event or if later, at the time such Financial Indebtedness was incurred, any Target Group Financial Indebtedness and any Target Group Refinancing Indebtedness which the Borrower has designated as Non-Bank Group Serviceable Debt by notice in writing to the Facility Agent delivered not less than 5 Business Days’ prior to the Merger Event or the incurrence of such Financial Indebtedness, as the case may be;

 

(d)                                  upon or at any time after an Integrated Merger Event, any Post Merger Target Group Refinancing which the Borrower has designated as Non-Bank Group Serviceable Debt by notice in writing to the Facility Agent delivered not less than 5 Business Days’ prior to the incurrence of such Post Merger Target Group Refinancing; and

 

(e)                                  any Financial Indebtedness not described in paragraphs (a) to (d) above which is raised by any member of the Group which is not a member of the Bank Group, (i) where the Borrower has provided not less than 5 Business Days’ prior written notice to the Facility Agent designating such Financial Indebtedness as Non-Bank Group Serviceable Debt, and (ii) the proceeds of which are contributed into the Bank Group in accordance with the provisions of Clause 24.16 (Contributions to the Bank Group),

 

in the case of paragraphs (b), (c), (d) and (e), to the extent only of the principal amounts so designated at the relevant time and provided that any Non-Bank Group Serviceable Debt shall thereafter at all times remain Non-Bank Group Serviceable Debt.

 

29



 

NTL South Herts” means NTL (South Hertfordshire) Limited (formerly known as Cable & Wireless Communications (South Hertfordshire) Limited), a company incorporated in England & Wales with registered number 2401044.

 

Obligors” means the Borrower, the Original Guarantors and any Acceding Guarantors (including, following an Integrated Merger Event, the Target Group Obligors) and “Obligor” means any of them.

 

Obligors’ Agent” means the Borrower in its capacity as agent for Cableco and the Obligors, pursuant to Clause 31.17 (Obligors’ Agent).

 

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

 

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

 

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

 

Original Financial Statements” means the audited consolidated financial statements of the Group for the financial year ended 31 December 2003.

 

Original Guarantor” means each of the companies listed in Part 1 of Schedule 2 (The Original Guarantors), each of which shall accede to this Agreement on or prior to the Closing Date.

 

Original Obligors” means the Borrower and the Original Guarantors.

 

Outstanding L/C Amount” means:

 

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

 

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

 

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

 

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

 

Parent Intercompany Debt” means any Indebtedness owed by the Borrower to Cableco from time to time, including without limitation, arising under the Parent Intercompany Loan Agreements or any convertible unsecured loan stock issued by the Borrower to Cableco and which is subordinated to the Facilities pursuant to the terms of the HYD Intercreditor Agreement.

 

Parent Intercompany Loan Agreements” means:

 

(a)           the loan agreements dated 7 November 2003, 28 November 2003 and 9 January 2004; and

 

(b)           any subsequent loan agreements,

 

30



 

in each case, made between Cableco and the Borrower (but in the case of the agreements referred to in paragraph (a) originally made between the Borrower and NTL Communications Limited) relating to the Parent Intercompany Debt.

 

Pari Passu Intercreditor Agreement” means (a) the intercreditor agreement to be dated on or about the effective date of an Integrated Merger Event, entered into between certain of the Obligors, certain members of the Target Group, certain of the Finance Parties and certain other parties for the purpose of allowing, upon and following an Integrated Merger Event, up to £1,250,000,000 (or its equivalent in other currencies) in aggregate principal amount of the Target Group Financial Indebtedness and any Target Group Refinancing Indebtedness to be incurred on a senior secured basis ranking pari passu with all amounts outstanding under the Facilities, the form of which is set out in Schedule 14 (Pro Forma Pari Passu Intercreditor Agreement) or (b) to the extent that any Post Merger Target Group Refinancing occurs to refinance any of the Target Group Financial Indebtedness and/or Target Group Refinancing Indebtedness referred to in paragraph (a) in a manner which is not prohibited by this Agreement, the intercreditor agreement entered into on substantially similar terms to the intercreditor agreement referred to in paragraph (a) in connection with such Post Merger Target Group Refinancing.

 

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

 

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

 

Permitted Capital Expenditure” has the meaning ascribed to it in Clause 23.3 (Permitted Capital Expenditure).

 

Permitted Holders” shall mean any person who, together with any of its Affiliates, holds 5% or more of the outstanding capital stock of the Ultimate Parent on the date of this Agreement (as such persons are set out in the Offering Memorandum distributed in respect of the High Yield Notes) and any Affiliates of such person from time to time.

 

Permitted Payments” means:

 

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

 

(i)            to implement any part of Separation;

 

(ii)                                made, at any time, to fund the payment of corporate expenses (including taxes and the buy back of stock from employees) by any member of the Group the aggregate amount of such payments being no greater than £30 million per annum (or its equivalent in other currencies) or following an Integrated Merger Event, being no greater than £50 million per annum (or its equivalent in other currencies), of which no more than £2 million per annum (or its equivalent in other currencies) may be incurred in the buy back of stock from employees; or

 

(iii)                            to the extent that any amounts constituting proceeds of the High Yield Offering are contributed to the Borrower on or before the Closing Date pursuant to paragraph 8(c) of Part 1 to Schedule 4 (Conditions Precedent to First Utilisation) (the “High Yield Contributed Amount”), one or more payments to or on behalf of Cableco which in aggregate do not exceed the High Yield Contributed Amount, in order to satisfy the reasonable costs and expenses incurred by Cableco and any other member of the

 

31



 

Group (other than any member of the Bank Group) in connection with the High Yield Offering, the termination of the Existing Senior Credit Facilities Agreement and the Finance Documents, and/or for the purposes of ensuring that the issuer of the Diamond Notes shall have sufficient funds to repay the Diamond Notes in full, as contemplated by Clause 3.2 (Conditions subsequent relating to Diamond Sub-Group and Triangle Sub-Group);

 

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

 

(i)                                    the terms of the Finance Documents;

 

(ii)                                upon and following the occurrence of a Merger Event and only if and to the extent the Borrower shall have designated such Financial Indebtedness as Non-Bank Group Serviceable Debt, the terms of any Target Group Financial Indebtedness, any Target Group Refinancing Indebtedness and any Post Merger Target Group Refinancing;

 

(iii)                            the terms of the High Yield Notes and any High Yield Refinancings (or in each case, any guarantee of the obligations thereunder), to the extent such payment is permitted by the terms of the HYD Intercreditor Agreement, other than any payments in relation to any fees, costs, expenses, commissions or other payments required to be made in respect of any amendment, consent or waiver in respect of the High Yield Notes or any such High Yield Refinancings (or in each case, any guarantee of the obligations thereunder);

 

(iv)                               upon and following an Integrated Merger Event, subject to satisfaction of the test set out in paragraph (f) of the definition of “Merger Event Integration Tests” and only if and to the extent that the Borrower shall have designated such Financial Indebtedness as Non-Bank Group Serviceable Debt, the terms of any Target Group Acquisition Indebtedness, and at any time thereafter, the terms of any Target Group Acquisition Refinancing Indebtedness;

 

(v)                                   the terms of any agreements for Financial Indebtedness which constitutes Non-Bank Group Serviceable Debt falling within paragraph (e) of the definition thereof;

 

(vi)                               any Hedging Agreement entered into by a member of the Group relating to currency or interest rate hedging of Financial Indebtedness referred to in sub-paragraphs (i) to (v) above and which is not entered into for investment or speculative purposes; or

 

(vii)                           the terms of any Subordinated Funding within the meaning of paragraphs (a), (c), (f)(i) or (f)(iii) of the definition thereof, to the extent required to facilitate any Permitted Payments allowed under sub-paragraphs (i) to (vi) above,

 

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

 

(c)                                  payments made to Cableco or NTL Communications Limited in respect of amounts owing under loans granted to any member of the Bank Group by way of Subordinated Funding, provided that:

 

(i)                                    an amount equal to such payment is re-invested by Cableco or NTL Communications Limited into a member of the Bank Group subject to or potentially liable to US Federal Income Taxes or whose members or shareholders are liable or potentially

 

32



 

liable to US Federal Income Taxes in respect of its net income or profits, immediately after such payment;

 

(ii)                                the aggregate principal amount of such payments and re-invested amounts on any day does not exceed £25 million (or its equivalent in other currencies); and

 

(iii)                            to the extent any such payments are made in cash, any re-invested amounts are also made in cash;

 

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

 

(e)                                  any payment of any dividend, payment, loan or other distribution, or the repayment of a loan, or the redemption of loan stock or redeemable equity made out of proceeds of an Asset Adjustment Payment referred to in paragraph (b) of the definition thereof received by a member of the Bank Group,

 

provided that notwithstanding any of the foregoing, no dividends, payments, loans, distributions, repayments or redemption shall be permitted in respect of any loans which constitute Equity Equivalent Funding.

 

Post Merger Target Group Refinancing” means any Financial Indebtedness incurred at any time after an Integrated Merger Event (other than Target Group Refinancing Indebtedness), for the purposes of refinancing any Target Group Financial Indebtedness or any Target Group Refinancing Indebtedness, including any Financial Indebtedness incurred for the purpose of the payment of all principal, interest, fees, expenses, commissions, make-whole and any other contractual premium payable which is not inconsistent with standard market practice, in respect of such refinancing and any reasonable fees, costs and expenses incurred in connection with such refinancing, and in respect of which the following terms will apply:

 

(a)                                  the final maturity date or redemption of such refinancing occurs after the scheduled final maturity date or redemption date of the Target Group Financial Indebtedness or the Target Group Refinancing Indebtedness being refinanced;

 

(b)                                  the average life of the Post Merger Target Group Refinancing is longer than the remaining average life of the Target Group Financial Indebtedness or the Target Group Refinancing Indebtedness being refinanced at the time of such refinancing;

 

(c)                                  taking into account any hedging arrangements for the principal and interest on the Post Merger Target Group Refinancing, the interest rate per annum payable in cash on the Post Merger Target Group Refinancing or in the case of a floating rate loan, the applicable margin, shall not exceed the interest payable in cash, or as the case may be, the applicable margin, on the Target Group Financial Indebtedness or any Target Group Refinancing Indebtedness which is being refinanced; and

 

(d)                                  such Post Merger Target Group Refinancing is raised by (i) any member of the Bank Group provided that such Post Merger Target Group Refinancing is not (in the reasonable opinion of the Facility Agent having taken legal advice from counsel where appropriate) raised at a level which is structurally superior to the level at which the Target Group Financial Indebtedness or Target Group Refinancing Indebtedness being refinanced was raised or (ii) any other member of the Group which is not a member of the Bank Group.

 

33



 

Principal Separation” means the transfers of the Designated Core Business and the Designated Broadcast Business (as such terms are defined in the Separation Memorandum) as contemplated by Parts 4 and 5 respectively of the Separation Memorandum and the implementation of arrangements for Shared Assets (as such term is defined in the Separation Memorandum) as contemplated by Part 6 of the Separation Memorandum, in each case, on substantially the terms set out in the Separation Memorandum (or on such other terms as may be approved by the Facility Agent acting on the instructions of an Instructing Group).

 

Pro Forma Debt Service of Target” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

 “Pro Forma Target Group Debt” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Pro Forma Target Group Net Cash Interest Payable” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

 “Pro Forma Target Group Senior Debt” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

Proportion” in relation to a Lender, means:

 

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

 

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

 

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

 

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

 

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

 

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

 

(a)                                  a UK Bank Lender;

 

34



 

(b)                                  a Treaty Lender; or

 

(c)                                  a UK Non-Bank Lender.

 

Quarter Date” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

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

 

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

 

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

 

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

 

Reference Banks” means the principal London offices of Credit Suisse First Boston, Deutsche Bank AG and Barclays Bank PLC or such other bank or banks as may be appointed as such by the Facility Agent after consultation with the Borrower.

 

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

 

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

 

Relevant Tax Jurisdiction” means:

 

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

 

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

 

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

 

Repayment Date” means:

 

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

 

(b)                                  in respect of the Term Facility Outstandings, each of the dates specified in Clause 9 (Repayment of Term Facility Outstandings) as a Repayment Date in respect of the relevant Term Facility Outstandings,

 

35



 

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

 

Repayment Instalment” means, in respect of the Term Facility Outstandings, the amounts required to be paid by way of repayment on each Repayment Date, as specified in Clause 9 (Repayment of Term Facility Outstandings).

 

Repeating Representations” means the representations and warranties set out in Clauses 21.1 (Due Organisation), 21.4 (No Immunity), 21.5 (Governing Law and Judgments), 21.6 (All Actions Taken), 21.8 (Binding Obligations), 21.17 (Execution of Finance Documents), paragraphs (a), (b) and (c) of 21.18 (Group Structure), 21.26 (Investment Company Act), 21.27 (Public Utility Holding Company Act) and 21.29 (Centre of Main Interests).

 

Reservations” means:

 

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

 

(b)                                  anything analogous to any of the matters set out in paragraph (a) above under any laws of any applicable jurisdiction;

 

(c)                                  the reservations in or anything disclosed by any of the Legal Opinions;

 

(d)                                  any circumstance arising through a failure to obtain any consent from the lenders under the Existing Senior Credit Facilities Agreement to (i) the execution of the Finance Documents, (ii) the exercise of any rights or the performance of any obligations under the Finance Documents or (iii) the application of the proceeds of the High Yield Notes in a manner which is contrary to the Existing Senior Credit Facilities Agreement, or (iv) any other matter contemplated by the Finance Documents; and

 

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

 

Restricted Guarantors” means each of the Original Guarantors listed in Part 2 of Schedule 2 (The Restricted Guarantors) and any other Guarantor that accedes to this Agreement pursuant to Clause 26.1 (Acceding Guarantors), in each case, which is subject to or potentially liable to US Federal Income Taxes or whose members or shareholders are liable or potentially liable to US Federal Income Taxes in respect of its net income or profit.

 

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

 

Revolving Facility Advance” means an advance (including a Rollover Advance) as from time to time reduced by repayment made or to be made by the Lenders under the Revolving Facility (but excluding for the purposes of this definition, any utilisation of the Revolving Facility by way of Ancillary Facility or Documentary Credit).

 

36



 

Revolving Facility Commitment” means, in relation to a Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Deed pursuant to which such Lender becomes a party to this Agreement less the Ancillary Facility Commitment (if any) of such Lender.

 

Revolving Facility Margin” means, in relation to Revolving Facility Advances and subject to Clause 13.3 (Margin Ratchet for Revolving Facility Advances), 2.25% per annum.

 

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

 

Rollover Advance” means a Rollover Advance as defined in Clause 8.2 (Rollover Advances).

 

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

 

Security Documents” means:

 

(a)                                  each of the Initial Security Documents and the Subsequent Security Documents;

 

(b)                                  any security documents required to be delivered by an Acceding Guarantor pursuant to Clause 26.1 (Acceding Guarantors);

 

(c)                                  in relation to any Integrated Merger Event, any security documents granted in favour of the Security Trustee by any member of the Target Group pursuant to the Merger Event Conditions;

 

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

 

(e)                                  any other document executed at any time pursuant to Clause 24.13 (Further Assurance) or any similar covenant in any of the Security Documents referred to in paragraph (a) to (d) above.

 

Semi-Annual Period” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Separation” means the Principal Separation and any transfers of assets, liabilities or other arrangements necessary in order to implement and give effect to the Principal Separation (whether the same occur before, on or after Principal Separation).

 

Separation Memorandum” means that memorandum entitled “NTL Broadcast Separation Memorandum” dated 24 March 2004 relating to the separation of the Broadcast Business and prepared by Messrs. Travers Smith Braithwaite as set out in the Annex (Separation Memorandum), as such memorandum may be amended and supplemented from time to time in a manner satisfactory to the Facility Agent (acting on the instructions of an Instructing Group).

 

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

 

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

 

37



 

Sterling Amount” means at any time:

 

(a)                                  in relation to an Advance, the amount specified in the Utilisation Request for that Advance as adjusted, if necessary, in accordance with the terms of this Agreement and to reflect any repayment, consolidation or division of that Advance;

 

(b)                                  in relation to a Documentary Credit, (i) if such Documentary Credit is denominated in Sterling, the Outstanding L/C Amount in relation to it at such time or (ii) if such Documentary Credit is not denominated in Sterling, the equivalent in Sterling of the Outstanding L/C Amount at such time, calculated as at the later of (1) the date which falls 2 Business Days before its issue date or any renewal date or (2) the date of any revaluation pursuant to Clause 5.3 (Revaluation of Documentary Credits);

 

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

 

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

 

Subordinated Funding” means any loan made to any Obligor by any member of the Group or after Principal Separation, any member of the Broadcast Group, that is not an Obligor which:

 

(a)                                  constitutes Parent Intercompany Debt;

 

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

 

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

 

(d)                                  is an intercompany loan arising out of, or in connection with, Separation (or any part of it) which is owed by a member of the Core Group to a member of the Broadcast Group for so long as it remains a Subsidiary of the Ultimate Parent, and which constitutes Equity Equivalent Funding;

 

(e)                                  constitutes Equity Equivalent Funding; or

 

(f)                                    in circumstances where, upon and following an Integrated Merger Event, the members of the Target Group do not constitute Subsidiaries of the Borrower:

 

(i)                                    constitutes a loan made by a member of the Group which is not an Obligor to a Target Group Obligor which exists as at the effective date of the Integrated Merger Event;

 

(ii)                                constitutes Equity Equivalent Funding; or

 

(iii)                            is made by a Bank Holdco to Target and which may or may not thereafter be contributed into or invested in the Target Group,

 

38



 

provided that, in the case of paragraphs (b), (c), (d), (e) and (f), the relevant debtor and creditor are party to the Group Intercreditor Agreement as an Intergroup Debtor or Intergroup Creditor (as such terms are defined in the Group Intercreditor Agreement), respectively, or where the relevant debtor and creditor are party to such other subordination arrangements as may be satisfactory to the Facility Agent, acting reasonably.

 

Subsequent Security Documents” means the security documents listed in Part 4 of Schedule 4 (Conditions Subsequent Documents).

 

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

 

(a)                                  any company:

 

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

 

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

 

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

 

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

 

Successful Syndication” has the meaning given to it in the Commitment Letter.

 

Syndication Date” means the date specified by the Mandated Lead Arrangers (and notified to the Facility Agent and the Borrower) as the day on which Successful Syndication has occurred.

 

Target” means a person whose principal area of business is substantially the Group Business (or any part of it) and whose operations are based predominantly in the United Kingdom.

 

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

 

Target Group” means Target (or to the extent applicable, any Holding Company of the Target) and its Subsidiaries as at the date on which the Merger Event has or is deemed to have occurred and thereafter shall mean, Target (or to the extent applicable, any Holding Company of the Target) and its Subsidiaries from time to time.

 

Target Group Acquisition Indebtedness” means any Financial Indebtedness raised by any member of the Group (other than a member of the Bank Group) the proceeds of which have been or are to be used to finance the acquisition of the Target Group and any reasonable fees, costs and expenses incurred in relation to the same.

 

Target Group Acquisition Refinancing Indebtedness” means any Financial Indebtedness incurred by any member of the Group (other than a member of the Bank Group) to refinance all or any part of the Target Group Acquisition Indebtedness, including any Financial Indebtedness incurred for the purpose of the payment of all principal, interest, fees, expenses, commissions, make-whole and any other contractual premium payable in respect thereof which is not inconsistent with standard market practice, in respect of such refinancing and any reasonable fees , costs and expenses incurred in connection with such refinancing, and in respect of which the following terms apply:

 

39



 

(a)                                  the final maturity date or redemption of such refinancing occurs after the scheduled final maturity date or redemption date of the Target Group Acquisition Indebtedness being refinanced;

 

(b)                                  the average life of the Target Group Acquisition Refinancing Indebtedness is longer than the remaining average life of the Target Group Acquisition Indebtedness being refinanced at the time of such refinancing;

 

(c)                                  taking into account any hedging arrangements for the principal and interest on the Target Group Acquisition Refinancing Indebtedness, the interest rate per annum payable in cash, or in the case of a floating rate loan, the applicable margin, on such Target Group Acquisition Refinancing Indebtedness shall not exceed the interest payable in cash, or as the case may be, the applicable margin, on Target Group Acquisition Indebtedness which is being refinanced; and

 

(d)                                  such Target Group Acquisition Refinancing Indebtedness is structurally subordinated to the Facilities.

 

Target Group Cash Flow” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Target Group Consolidated Revenues” means, in respect of any period, the consolidated revenues for the Target Group for that period as evidenced by the financial statements of the Target Group for such period.

 

Target Group Covenant Profit” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

Target Group Financial Indebtedness” means:

 

(a)                                  Financial Indebtedness of the Target Group existing as at the date on which a Merger Event has or is deemed to have occurred to the extent not incurred in contemplation of the Merger Event; and

 

(b)                                  Financial Indebtedness constituting Target Group Interim Indebtedness,

 

but excluding any Financial Indebtedness owed by one member of the Target Group to another member of the Target Group and following an Integrated Merger Event, any Financial Indebtedness owed by one member of the Target Group to a member of the Bank Group, any Financial Indebtedness constituted by guarantees of the Facilities and any Subordinated Funding.

 

Target Group Interim Indebtedness” means Financial Indebtedness incurred by the Target Group between the effective date of an Unintegrated Merger Event and the effective date of an Integrated Merger Event.

 

Target Group Obligors” means any member of the Target Group that becomes an Obligor under this Agreement, pursuant to the provisions of Clause 26.1 (Acceding Guarantors).

 

Target Group Refinancing Indebtedness” means any Financial Indebtedness incurred at any time prior to an Integrated Merger Event by any member of the Group other than a member of the Bank Group or upon or immediately following an Integrated Merger Event, incurred by any member of the Group (other than any member of the Bank Group which was also a member of the Bank Group immediately prior to the Integrated Merger Event), in each case, to refinance all or any part of the Target Group Financial Indebtedness, including any Financial Indebtedness incurred for the purpose of the payment of all principal, interest, fees, expenses, commissions, make-whole and any other contractual premium payable in respect thereof which is not inconsistent with standard market

 

40



 

practice, in respect of such Target Group Financial Indebtedness and any reasonable fees, costs and expenses incurred in connection with such refinancing.

 

Target Group Senior Debt” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

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

 

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

 

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

 

Tax Liability” has the meaning set out in paragraph (e) of Clause 17.2 (Tax Indemnity).

 

Tax Payment” means the increase in any payment made by an Obligor to a Finance Party under paragraph (c) of Clause 17.1 (Tax Gross-up) or any amount payable under paragraph (d) of Clause 17.1 (Tax Gross-up) or under Clause 17.2 (Tax Indemnity).

 

Term” means:

 

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

 

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

 

Term Facilities” means the A Facility or the B Facility and “Term Facility” means either of them, as the context may require.

 

Term Facility Advance” means any A Facility Advance or a B Facility Advance and “Term Facility Advances” shall be construed accordingly.

 

Term Facility Outstandings” means, at any time, the aggregate of the A Facility Outstandings and the B Facility Outstandings at such time.

 

Termination Date” means:

 

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

 

(b)                                  in relation to each Term Facility, the date falling 30 days after the date of this Agreement; and

 

(c)                                  in relation to each Ancillary Facility the date which is specified as such in the applicable Ancillary Facility Documents provided such date shall not be later than the Termination Date in respect of the Revolving Facility.

 

Transaction Agreement” means the restated agreement dated as of 26 July 1999 between Bell Atlantic Corporation, Cable & Wireless, CWC and NTL Europe Inc (as amended from time to time).

 

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

 

Transfer Deed” means a duly completed deed of transfer and accession in the form set out in Schedule 3 (Form of Deed of Transfer and Accession) which has been executed as a deed by a Lender and a Transferee whereby such Lender seeks to transfer to such Transferee all or a part of such Lender’s rights, benefits and obligations under this Agreement as contemplated in Clause 38

 

41



 

(Assignments and Transfers) and such Transferee agrees to accept such transfer and to be bound by this Agreement and to accede to the HYD Intercreditor Agreement, the Group Intercreditor Agreement and, if applicable, the Pari Passu Intercreditor Agreement.

 

Transferee” means a bank or other institution to which a Lender seeks to transfer all or part of its rights, benefits and obligations under this Agreement pursuant to and in accordance with Clause 38 (Assignments and Transfers).

 

Treaty Lender” means in relation to a payment of interest on an Advance to the Borrower, a Lender which is entitled to claim full relief from liability to taxation otherwise imposed by the Borrower’s Relevant Tax Jurisdiction (in relation to that Lender’s participation in Advances made to the Borrower) on interest under a Double Taxation Treaty and which does not carry on business in that Relevant Tax Jurisdiction through a permanent establishment with which that Lender’s participation in that Advance is effectively connected and, in relation to any payment of interest on any Advance made by that Lender, such Obligor has received notification in writing from the Board of the Inland Revenue authorising such Obligor to pay interest on such Advances without any Tax Deduction.

 

Triangle Notes” means the 11.2% senior discount debentures due 2007 issued by NTL (Triangle) LLC (formerly known as Comcast UK Cable Partners Limited).

 

Triangle Sub-Group” means NTL (Triangle) LLC (for so long as it remains a member of the Group) and its Subsidiaries from time to time.  For information purposes only, members of the Triangle Sub-Group as at the date of this Agreement are set out in Part 3 of Schedule 9 (Members of the Triangle Sub-Group).

 

UK Bank Lender” means, in relation to a payment of interest on a participation in an Advance to the Borrower, a Lender which is beneficially entitled to and within the charge to United Kingdom corporation tax as regards that payment and (a) if the participation in that Advance was made by it, is a Lender which is a “bank” (as defined for the purposes of section 349 of the Taxes Act in section 840A of the Taxes Act) or (b) if the participation in that Advance was made by a different person, such person was a “bank” (as defined for the purposes of section 349 of the Taxes Act in section 840A of the Taxes Act) at the time that Advance was made.

 

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

 

(a)                                  a Lender which is beneficially entitled to the income in respect of which that payment is made and is a UK Resident company (the first condition set out in section 349B of the Taxes Act); or

 

(b)                                  a Lender which satisfies one of the other conditions set out in section 349B of the Taxes Act,

 

where the Board of the Inland Revenue has not given a direction under section 349C of the Taxes Act which relates to that payment of interest on an Advance to the Borrower.

 

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

 

Ultimate Parent” means, on the date of this Agreement, NTL, and at any time thereafter, any person that accedes to this Agreement as the Ultimate Parent pursuant to Clause 26.2 (Acceding Holding Company).

 

Unintegrated Merger Event” means a Merger Event has occurred but an Integrated Merger Event has not occurred.

 

42



 

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

 

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

 

Utilisation Date” means (a) in relation to an Advance, the date on which such Advance is (or is requested) to be made (b) in relation to a utilisation by way of Ancillary Facility, the date on which such Ancillary Facility is established, and (c) in relation to a utilisation by way of Documentary Credit, the date on which such Documentary Credit is to be issued, in each case, in accordance with the terms of this Agreement.

 

Utilisation Request” means:

 

(a)                                  in relation to an Advance a duly completed notice in the form set out in Part 1 to Schedule 5 (Form of Utilisation Request (Advances)); or

 

(b)                                  in relation to a Documentary Credit, a duly completed notice in the form set out in Part 2 to Schedule 5 (Form of Utilisation Request (Documentary Credits)).

 

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

 

“Working Capital” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).

 

1.2                               Definitions in the Separation Memorandum

 

Unless otherwise defined in Clause 1.1 (Definitions) or Clause 23.1 (Financial Definitions), capitalised terms used in this Agreement relating to the Broadcast Business and Separation, shall have the meanings ascribed to those terms in Part 8 of the Separation Memorandum.

 

1.3                               Accounting Expressions

 

All accounting expressions which are not otherwise defined in this Agreement shall be construed in accordance with accounting principles generally accepted in the United States of America.

 

1.4                               Construction

 

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

 

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

 

agreed form” means, in relation to any document, in the form agreed by or on behalf of the Mandated Lead Arrangers and the Borrower prior to the date of this Agreement;

 

company” includes any body corporate;

 

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

 

43



 

determines” or “determined” means a determination made in the absolute discretion of the person making the determination;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

a “person” shall be construed as a reference to any person, firm, company, whether with limited liability or otherwise, 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;

 

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

 

VAT” shall be construed as value added tax as provided for in the Value Added Tax Act 1994 and legislation (or purported legislation and whether delegated or otherwise) supplemental to that Act or in any primary or secondary legislation promulgated by the European Community or European Union or any official body or agency of the European Community or European Union, and any tax similar or equivalent to value added tax imposed by any country other than the United Kingdom and any similar or turnover tax replacing or introduced in addition to any of the same;

 

44



 

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

 

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

 

1.5                               Currency

 

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

 

1.6                               Statutes

 

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

 

1.7                               Time

 

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

 

1.8                               References to Agreements

 

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

 

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

 

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

 

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

 

1.9                               Documentary Credits

 

Any reference in this Agreement to:

 

(a)                                  an amount borrowed includes any amount utilised by way of Documentary Credit;

 

(b)                                  a Lender funding its participation in a Utilisation includes an Indemnifying Lender participating in a Documentary Credit;

 

(c)                                  amounts outstanding under this Agreement include amounts outstanding under, or in relation to, any Documentary Credit;

 

(d)                                  an outstanding amount of a Documentary Credit at any time is the maximum amount that is or may be payable by the L/C Bank in respect of that Documentary Credit at that time;

 

45



 

(e)                                  the Borrower “repaying” a Documentary Credit or an Ancillary Facility utilised by way of performance bond means:

 

(i)                                    the Borrower providing cash cover for that Documentary Credit or performance bond;

 

(ii)                                the maximum amount payable under the Documentary Credit or performance bond being reduced in accordance with its terms or otherwise in a manner satisfactory to the L/C or Ancillary Facility Lender, as the case be, in each case, acting reasonably; or

 

(iii)                            the L/C Bank or Ancillary Facility Lender, as the case be, being satisfied that it has no further liability under that Documentary Credit or performance bond,

 

and that the amount by which a Documentary Credit or performance bond is repaid under sub-paragraph (e)(i) or reduced under sub-paragraph (e)(ii) above is the amount of the relevant cash cover or reduction; and

 

(f)                                    the Borrower providing “cash cover for a Documentary Credit or an Ancillary Facility utilised by way of performance bond means the Borrower paying an amount in the currency of the Documentary Credit or performance bond to an interest-bearing account in the name of the Borrower and the following conditions are met:

 

(i)                                    the account is with the Facility Agent (if the cash cover is to be provided for all the Indemnifying Lenders) or with an Indemnifying Lender or the L/C Bank or the Ancillary Facility Lender (if the cash cover is to be provided for that Indemnifying Lender or the L/C Bank or Ancillary Facility Lender, as the case may be);

 

(ii)                                in the case of cash deposited as cash cover for a Documentary Credit, withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of that Documentary Credit until no amount is or may be outstanding under that Documentary Credit; and

 

(iii)                            the Borrower has executed a security document over that account, in form and substance satisfactory to the Facility Agent or the Finance Party with which that account is held, creating a first ranking security interest over that account,

 

or on such other terms as may be satisfactory to the Facility Agent, the relevant Indemnifying Lender, the relevant Ancillary Facility Lender or the L/C Bank.

 

1.10                        Commitments of Morgan Stanley

 

References to the Commitment of Morgan Stanley Dean Witter Bank Limited in relation to the Facilities shall be construed as references to the aggregate Commitment in relation to the Facilities of Morgan Stanley Dean Witter Bank Limited and Morgan Stanley Senior Funding, Inc. (in such proportions as Morgan Stanley Dean Bank Limited notifies to the Facility Agent from time to time) and Morgan Stanley Senior Funding, Inc. is a party to this Agreement as a Lender to give effect to such Commitment (as so notified).

 

1.11                        Holding Company of Ultimate Parent

 

If at any time the Ultimate Parent becomes the Subsidiary of any Holding Company as contemplated by, inter alia, the definition of “Change of Control”, the provisions of Clause 26.2 (Acceding Holding Company) shall apply and upon satisfaction of the provisions thereof, any references in the Finance Documents to “Ultimate Parent” shall thereafter be deemed to be references to such Holding Company.

 

46


2.             THE FACILITIES

 

2.1          The Facilities

 

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

 

(a)           a revolving loan facility in a maximum aggregate amount of £250,000,000 (the “Revolving Facility”) which shall be available for drawing in euro, Dollars, Sterling or any Optional Currency subject to the utilisation in full of the Term Facilities;

 

(b)           a term loan facility in a maximum amount of £1,275,000,000 (the “A Facility”) which shall be available in Sterling in a single drawing; and

 

(c)           a term loan facility in a maximum aggregate amount of £900,000,000 (the “B Facility”) which shall be available in Sterling in a single drawing on the Closing Date and thereafter, following prior consultation with the Borrower and in accordance with the terms of the Commitment Letter, shall be divided into sub-tranches denominated in euro (the “B1 Sub-Tranche”), Dollars (the “B2 Sub-Tranche”) and Sterling (the “B3 Sub-Tranche”) (in the case of Dollars and euro, calculated at the Facility Agent’s Spot Rate of Exchange for such currency) on a date falling no later than 3 months following the Closing Date.

 

2.2          Purpose

 

(a)           The Term Facilities are intended to finance the repayment in full of all amounts due and payable under the Existing Senior Credit Facilities Agreement (including without limitation, by way of principal, interest, break costs, fees and expenses, commission and any other premiums), any fees, costs and expenses due and payable under the Finance Documents and any other fees, costs and expenses incurred by the Obligors in connection with the negotiation and preparation of the Finance Documents and the High Yield Offering.

 

(b)           The Revolving Facility is intended to finance the purposes set out in paragraph (a) above to the extent that the utilisation in full of the Term Facilities is insufficient to satisfy such purposes, to finance the general working capital requirements and the general corporate purposes of the Bank Group or for the purposes of complying with the obligations of the Borrower under the Pari Passu Intercreditor Agreement and may be utilised by way of Revolving Facility Advances, Documentary Credits or, subject to the provisions of Clause 6 (Ancillary Facilities), Ancillary Facilities.

 

(c)           The Borrower shall apply all amounts borrowed under this Agreement in or towards satisfaction of the purposes referred to in paragraphs (a) and (b) and none of the Finance Parties shall be obliged to concern themselves with such application.

 

2.3          Several Obligations

 

The obligations of each Finance Party under this Agreement are several and the failure by a Finance Party to perform any of its obligations under this Agreement shall not affect the obligations of any of the Obligors towards any other party to this Agreement nor shall any other party be liable for the failure by such Finance Party to perform its obligations under this Agreement.

 

2.4          Several Rights

 

The rights of each Finance Party are several and any debt arising under this Agreement at any time from an Obligor to any Finance Party to this Agreement shall be a separate and independent debt.  Each Finance Party may, except as otherwise stated in this Agreement, separately enforce its rights under this Agreement.

 

47



 

3.             CONDITIONS

 

3.1          Conditions Precedent

 

The obligations of the Lenders to make the Facilities available shall be conditional upon the Facility Agent having confirmed to the Borrower that it has received (or has waived in accordance with this Agreement, the requirement to receive) the documents listed in Part 1 of Schedule 4 (Conditions Precedent to First Utilisation) and that each is satisfactory, in form and substance, to the Facility Agent, acting reasonably.  The Facility Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

 

3.2          Condition Subsequent relating to Diamond Sub-Group and Triangle Sub-Group

 

(a)           The Borrower, in relation to the Triangle Sub-Group, and, the Ultimate Parent, in relation to the Diamond Sub-Group, shall each procure that as soon as practicable after the Closing Date and in any event within 90 days from the Closing Date:

 

(i)            all amounts outstanding under and in connection with the Diamond Notes (in the case of the Ultimate Parent) and the Triangle Notes (in the case of the Borrower) shall have been repaid in full (including without limitation, all amounts due and payable by way of principal, interest, fees and expenses, commission, make-whole payments and any other premiums) as a result of which, the Diamond Notes and Triangle Notes are cancelled;

 

(ii)           the total issued share capital of Diamond Cable shall have been acquired by NTL Group Limited in accordance with the provisions of Clause 49 (Post-Execution Restructuring) as a result of which the Diamond Sub-Group shall form a part of the Bank Group and Diamond Cable and such members of the Diamond Sub-Group as shall be necessary to ensure that the 95% Security Test is satisfied (assuming for the purpose of calculating compliance with the 95% Security Test, that the Diamond Sub-Group and the Triangle Sub-Group are part of the Bank Group and that the members of the Triangle Sub-Group which the Borrower has indicated will accede to this Agreement as Acceding Guarantors have done so) shall have acceded to this Agreement as Acceding Guarantors and provided all necessary documentation in connection with such accession in accordance with the provisions of Clause 26.1 (Acceding Guarantors); and

 

(iii)         (following redemption in full of the Triangle Notes) NTL (Triangle) LLC and such other members of the Triangle Sub-Group as shall be necessary to ensure that the 95% Security Test is satisfied (assuming for the purpose of calculating compliance with the 95% Security Test, that the Triangle Sub-Group and the Diamond Sub-Group are part of the Bank Group and that the members of the Diamond Sub-Group which the Borrower has indicated will accede to this Agreement as Acceding Guarantors have done so) shall have acceded to this Agreement as Acceding Guarantors and provided all necessary documentation in connection with such accession in accordance with the provisions of Clause 26.1 (Acceding Guarantors),

 

provided that no member of the Diamond Sub-Group or Triangle Sub-Group shall become an Obligor under this Clause 3.2 unless its direct Holding Company is or becomes an Obligor.

 

(b)           The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied as to the matters referred to in paragraph (a).

 

48



 

3.3          General Conditions Subsequent

 

The Borrower shall procure (and each relevant Obligor shall ensure) that within 30 days after the Closing Date (or earlier, to the extent required by any time-limit prescribed by law) all Initial Security Documents shall have been registered or filed with all appropriate authorities to the extent necessary for the purposes of perfecting the Security created thereunder and there shall have been delivered to the Facility Agent each of the documents listed in Part 4 of Schedule 4 (Conditions Subsequent Documents) each in form and substance satisfactory to the Facility Agent, acting reasonably.  The Facility Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

 

4.             UTILISATION

 

4.1          Conditions to Utilisation

 

Save as otherwise provided in this Agreement, an Advance will be made by the Lenders to the Borrower or a Documentary Credit will be issued by an L/C Bank at the Borrower’s request if:

 

(a)           in the case of an Advance, the Facility Agent has received from the Borrower a duly completed Utilisation Request in the relevant form, and in the case of a Documentary Credit, both the Facility Agent and the L/C Bank have received from the Borrower a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is 10 Business Days and no later than 2:00 p.m. on the day which is 3 Business Days (or in the case of any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 2:00 p.m. on the day which is 5 Business Days) prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the Borrower to utilise the amount requested on the Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement;

 

(b)           the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;

 

(c)           in the case of a Utilisation by way of Term Facility Advance, such Utilisation would result in the maximum principal amount of each Term Facility Advance being utilised, or in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Sterling Amount of such Revolving Facility Advance is (i) equal to the amount of the Available Revolving Facility Commitment at such time, or (ii) less than such amount but equal to, or an integral multiple of £10 million;

 

(d)           in the case of a Utilisation by way of Documentary Credit, the proposed Sterling Amount of such Documentary Credit is (i) equal to the amount of the Available Revolving Facility or (ii) less than such amount but equal to or more than £1 million or such lesser amount as the L/C Bank may agree;

 

(e)           in the case of a Utilisation by way of a Revolving Facility Advance, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances;

 

(f)            in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit ends on or before the Termination Date in respect of the Revolving Facility;

 

(g)           in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Advance is a period of 1, 2, 3 or 6 months or such other period as the Facility Agent may agree (provided that in respect of any period of more than 6 months, the Facility Agent shall obtain the prior consent of the Lenders), and ends on or before the Final Maturity Date in respect of the Revolving Facility provided that, save as the Mandated Lead Arrangers may

 

49



 

otherwise agree, prior to the Syndication Date, the Term of each Revolving Facility Advance shall be 1 month (or, if less, such duration as is necessary to ensure that such Term ends on the Syndication Date);

 

(h)           in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 15 (Market Disruption and Alternative Interest Rates);

 

(i)            in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the L/C Bank and the Facility Agent shall each have approved the terms of such Documentary Credit;

 

(j)            in the case of a Utilisation by way of a Revolving Facility Advance upon and following an Integrated Merger Event, such Utilisation is made in accordance with the provisions of the Pari Passu Intercreditor Agreement; and

 

(k)           in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:

 

(i)            in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), the Facility Agent shall not have received instructions from an Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of an Event of Default having occurred which is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit; or

 

(ii)           in the case of any Utilisation other than that referred to in sub-paragraph (i):

 

(A)          in the case of the first Utilisation (except to the extent such first Utilisation occurs on the date immediately after the date of this Agreement), all representations set out in Clause 21 (Representations and Warranties) made by each of the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; or

 

(B)          in the case of any other Utilisation, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation.

 

4.2          Lenders’ Participations

 

Each Lender will participate through its Facility Office in each Advance made pursuant to Clause 4.1 (Conditions to Utilisation) in its respective Proportion.

 

5.             DOCUMENTARY CREDITS

 

5.1          Issue of Documentary Credits

 

(a)           Each L/C Bank shall issue Documentary Credits pursuant to Clause 4.1 (Conditions to Utilisation) by:

 

(i)            completing the issue date and the proposed Expiry Date of any Documentary Credit to be issued by it; and

 

50



 

(ii)           executing and delivering such Documentary Credit to the relevant Beneficiary on the relevant Utilisation Date.

 

(b)           Each Lender having a Revolving Facility Commitment (an “Indemnifying Lender”) will participate by way of indemnity in each Documentary Credit in an amount equal to its L/C Proportion.

 

(c)           The Facility Agent shall notify each Indemnifying Lender and the L/C Bank of the details of any requested Documentary Credit (including the Sterling Amount of it, and, if such Documentary Credit is not to be denominated in Sterling, the relevant currency in which it will be denominated and the amount of it) and its participation in that Documentary Credit.

 

5.2          Renewal of Documentary Credits

 

(a)           The Borrower may request that a Documentary Credit issued on its behalf be renewed by delivering to the Facility Agent and the L/C Bank a Renewal Request which complies with Clause 4.1 (Conditions to Utilisation).

 

(b)           The terms of each renewed Documentary Credit shall be the same as those of the relevant Documentary Credit immediately prior to its renewal, except that (as stated in the Renewal Request therefor):

 

(i)            its amount may be less than the amount of such Documentary Credit immediately prior to its renewal; and

 

(ii)           its Term shall start on the date which was the Expiry Date of that Documentary Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

(c)           If the conditions set out in this Clause 5.2 have been met, the L/C Bank shall amend and re-issue the relevant Documentary Credit pursuant to a Renewal Request.

 

5.3          Revaluation of Documentary Credits

 

(a)           If any Documentary Credit is denominated in a currency other than Sterling and has a Term of more than 6 months, the Facility Agent shall at six month intervals after the date of such Documentary Credit recalculate the Sterling Amount of that Documentary Credit by notionally converting into the relevant currency, the outstanding amount of that Documentary Credit on the basis of the Facility Agent’s Spot Rate of Exchange on the date of calculation.

 

(b)           The Borrower shall, if requested by the Facility Agent within 2 days of any calculation under paragraph (a) above, ensure that within 3 Business Days sufficient Revolving Facility Outstandings are repaid to prevent the Sterling Amount of the Revolving Facility Outstandings exceeding the aggregate amount of all of the Revolving Facility Commitments adjusted to reflect any cancellations or reductions, following any adjustment under paragraph (a) above.

 

5.4          Immediately Payable

 

If a Documentary Credit or any amount outstanding under a Documentary Credit is expressed to be immediately payable, the Borrower shall repay that amount immediately.

 

51



 

5.5          Claims under a Documentary Credit

 

(a)           The Borrower irrevocably and unconditionally authorises the L/C Bank to pay any claim made or purporting to be made under a Documentary Credit requested by it and which appears on its face to be in order (a “claim”).

 

(b)           The Borrower shall within 3 Business Days of a demand pay to the Facility Agent for the L/C Bank an amount equal to the amount of any claim.

 

(c)           The Borrower acknowledges that the L/C Bank:

 

(i)            is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

 

(ii)           deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

(d)           The obligations of the Borrower under this Clause 5.5 will not be affected by:

 

(i)            the sufficiency, accuracy or genuineness of any claim or any other document; or

 

(ii)           any incapacity of, or limitation on the powers of, any person signing a claim or other document.

 

(e)           Without prejudice to any other matter contained in this Clause 5.5, the L/C Bank shall notify the Borrower as soon as reasonably practicable after receiving a claim.

 

5.6          Documentary Credit Indemnities

 

(a)           The Borrower shall within 3 Business Days of demand indemnify the L/C Bank against any cost, loss or liability incurred by the L/C Bank (otherwise than by reason of the L/C Bank’s gross negligence or wilful misconduct) in acting as the L/C Bank under any Documentary Credit requested by the Borrower provided that this indemnity shall not take effect until the Closing Date.

 

(b)           Each Indemnifying Lender shall (according to its L/C Proportion) promptly on demand indemnify the L/C Bank against any cost, loss or liability incurred by the L/C Bank (otherwise than by reason of the L/C Bank’s gross negligence or wilful misconduct) in acting as the L/C Bank under any Documentary Credit (except to the extent that the L/C Bank has been reimbursed by an Obligor pursuant to a Finance Document).

 

(c)           If any Indemnifying Lender is not permitted (by its constitutional documents or any applicable Law) to comply with paragraph (b) above, then that Indemnifying Lender will not be obliged to comply with paragraph (b) and shall instead be deemed to have taken, on the date the relevant Documentary Credit is issued (or if later, on the date that Indemnifying Lender’s participation in the Documentary Credit is transferred or assigned to that Indemnifying Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Documentary Credit in an amount equal to its L/C Proportion of that Documentary Credit.  On receipt of demand from the Facility Agent, that Indemnifying Lender shall pay to the Facility Agent (for the account of the L/C Bank) an amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.

 

(d)           The Borrower shall within 3 Business Days of demand reimburse any Indemnifying Lender for any payment it makes to the L/C Bank under this Clause 5.6 in respect of that

 

52



 

Documentary Credit unless an Obligor has already reimbursed the L/C Bank in respect of that payment.

 

(e)           The obligations of each Indemnifying Lender under this Clause 5.6 are continuing obligations and will extend to the ultimate balance of sums payable by that Indemnifying Lender in respect of any Documentary Credit, regardless of any intermediate payment or discharge in whole or in part.

 

(f)            The obligations of any Indemnifying Lender under this Clause 5.6 will not be affected by any act, omission, matter or thing which, but for this Clause 5.6 would reduce, release or prejudice any of its obligations under this Clause 5.6 (without limitation and whether or not known to it or any other person) including:

 

(i)            any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Documentary Credit or any other person;

 

(ii)           the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

(iii)         the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Documentary Credit or any other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

(iv)          any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Documentary Credit or any other person;

 

(v)            any amendment or restatement (however fundamental) or replacement of a Finance Document, any Documentary Credit or any other document or security;

 

(vi)          any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Documentary Credit or any other document or security; or

 

(vii)         any insolvency or similar proceedings.

 

5.7          Rights of Contribution

 

No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 5 (Documentary Credits).

 

5.8          Role of the L/C Bank

 

(a)           Nothing in this Agreement constitutes the L/C Bank as a trustee or fiduciary of any other person.

 

(b)           The L/C Bank shall not be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

 

(c)           The L/C Bank may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

 

(d)           The L/C Bank may rely on:

 

53



 

(i)            any representation, notice of document believed by it to be genuine, correct and appropriately authorised; and

 

(ii)           any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.

 

(e)           The L/C Bank may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.

 

(f)            The L/C Bank may act in relation to the Finance Documents through its personnel and agents.

 

(g)           The L/C Bank is not responsible for:

 

(i)            the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the L/C Bank, the Facility Agent, the Mandated Lead Arrangers, an Obligor or any other person given in or in connection with any Finance Document; or

 

(ii)           the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document.

 

5.9          Exclusion of Liability

 

(a)           Without limiting paragraph (b) below, the L/C Bank will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.

 

(b)           No Finance Party (other than the L/C Bank) may take any proceedings against any officer, employee or agent of the L/C Bank in respect of any claim it might have against the L/C Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document.

 

5.10        Credit Appraisal by the Indemnifying Lenders

 

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Indemnifying Lender confirms to the L/C Bank that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of the risks arising under or in connection with any Finance Document, including but not limited to, those listed in paragraphs (a) to (d) of Clause 31.15 (Credit Appraisal by the Lenders).

 

5.11        Appointment and Change of L/C Bank

 

(a)           The Borrower, with the prior written consent of the relevant Lender, may designate any Lender with a Revolving Facility Commitment as an L/C Bank or as a replacement therefor, but not with respect to Documentary Credits already issued by any other L/C Bank.

 

(b)           Any Lender so designated shall become an L/C Bank under this Agreement by delivering to the Facility Agent an executed L/C Bank Accession Certificate.

 

(c)           An L/C Bank may resign as issuer of further Documentary Credits at any time if (i) the Borrower and an Instructing Group consent to such resignation or so require; (ii) there is, in the reasonable opinion of the L/C Bank, an actual or potential conflict of interest in it

 

54



 

continuing to act as L/C Bank; or (iii) its Revolving Facility Commitment is reduced to zero, provided that the L/C Bank shall not resign until a replacement L/C Bank is appointed.

 

6.             ANCILLARY FACILITIES

 

6.1          Utilisation of Ancillary Facilities

 

(a)           The Borrower may, subject to paragraphs (b) and (c) below, at any time at least 35 days prior to the Termination Date in respect of the Revolving Facility by delivery of a notice (a “Conversion Notice”) to the Facility Agent, request an Ancillary Facility to be established by the conversion of any Lender’s Available Revolving Facility Commitment (or any part of it) into an Ancillary Facility Commitment with effect from the date (in this Clause 6, the “Effective Date”) specified in the Conversion Notice (being a date not less than 3 Business Days after the date such Conversion Notice is received by the Facility Agent).

 

(b)           Each Conversion Notice shall specify:

 

(i)            the nominated Ancillary Facility Lender;

 

(ii)           the type of Ancillary Facility and the currency or currencies in which the Borrower wishes such Ancillary Facility to be available;

 

(iii)         the proposed Sterling Amount of the original Ancillary Facility Commitment (subject always to paragraph (c) below), being an amount equal to (i) the Available Revolving Facility Commitment of the nominated Ancillary Facility Lender or, if less, (ii) equal to or more than £5 million;

 

(iv)          the commencement and expiry date for the relevant Ancillary Facility (such expiry date not to extend beyond the Final Maturity Date in respect of the Revolving Facility); and

 

(v)            such other details as to the nature, amount, fees for and operation of the proposed Ancillary Facility as the Facility Agent and the nominated Ancillary Facility Lender may reasonably require.

 

(c)           The aggregate Sterling Amount of the Revolving Facility Commitments which may at any time be utilised by way of Ancillary Facilities shall not exceed £100 million and the aggregate Sterling Amount of Ancillary Facilities which may at any time be utilised by way of performance bond facilities shall not exceed £100 million.

 

(d)           The Facility Agent shall promptly notify the Lenders of each Conversion Notice received pursuant to paragraph (a) above.

 

(e)           Any Lender nominated as an Ancillary Facility Lender which has notified the Facility Agent of its consent to such nomination shall, subject to the Facility Agent’s consent (not to be unreasonably withheld or delayed), be authorised to make the proposed Ancillary Facility available in accordance with the Conversion Notice (as approved by the Facility Agent) with effect on and from the Effective Date.  No other Lender shall be obliged to consent to the nomination of the Ancillary Facility Lender.

 

(f)            Any material variation from the terms of the Ancillary Facility or any proposed increase or reduction of the Ancillary Facility Commitment shall be effected on and subject to the provisions of this Clause 6 mutatis mutandis as if such Ancillary Facility were newly requested, provided that the Sterling Amount of the Ancillary Facility Outstandings under each Ancillary Facility shall at no time exceed the related Ancillary Facility Commitment.

 

55



 

(g)           The Borrower may (subject to compliance with the applicable terms of the relevant Ancillary Facility) at any time by giving written notice to the Facility Agent and the relevant Ancillary Facility Lender cancel any Ancillary Facility Commitment pursuant to and in accordance with Clause 10.1 (Voluntary Cancellation), provided that on the date of such cancellation, that part of such Ancillary Facility Commitment as shall have been so cancelled shall be converted back into the Revolving Facility Commitment of the relevant Lender unless the Revolving Facility Commitments are also cancelled on such date.

 

(h)           The Ancillary Facility Commitment of any Ancillary Facility Lender shall terminate and be cancelled on the date agreed therefor between the relevant Ancillary Facility Lender and the Borrower, provided such date shall be no later than the Termination Date in respect of the Revolving Facility (the “Ancillary Facility Termination Date”).  Any Ancillary Facility Outstandings on the applicable Ancillary Facility Termination Date shall be repaid in full by the Borrower on such date.

 

(i)            The Revolving Facility Commitment of each Lender at any time shall be reduced by the amount of any Ancillary Facility Commitment of such Lender at such time but shall, subject to any other provisions of this Agreement, automatically be increased by the amount of any portion of its Ancillary Facility Commitment which ceases to be made available to the Borrower for any reason (other than as a result of Utilisation of it) in accordance with the terms of such Ancillary Facility or is cancelled pursuant to paragraphs (g) or (h) above.

 

6.2          Operation of Ancillary Facilities

 

(a)           Subject to paragraph (b) below, the terms governing the operation of any Ancillary Facility (including the rate of interest (including default interest), fees, commission and other remuneration in respect of such Ancillary Facility) shall be those determined by agreement between the Ancillary Facility Lender and the Borrower, provided that such terms shall be based upon the normal commercial terms and market rates of the relevant Ancillary Facility Lender.

 

(b)           In the case of any inconsistency or conflict between the terms of any Ancillary Facility, the applicable Ancillary Facility Documents and this Agreement, the terms and provisions of the applicable Ancillary Facility Document shall prevail unless the contrary intention is expressly provided for in this Agreement.

 

(c)           The Borrower and Ancillary Facility Lender will promptly upon request by the Facility Agent, supply the Facility Agent with such information relating to the operation of each Ancillary Facility (including without limitation details of the Ancillary Facility Outstandings and the Sterling Amount thereof) as the Facility Agent may from time to time reasonably request (and the Borrower consents to such documents and information being provided to the Facility Agent and the other Lenders).

 

6.3          Ancillary Facility Default

 

(a)           If a default occurs under any Ancillary Facility, no Ancillary Facility Lender may demand repayment of any monies or demand cash cover for any Ancillary Facility Outstandings, or take any analogous action in respect of any Ancillary Facility, until the Acceleration Date.

 

(b)           If an Acceleration Date occurs, the claims of each Lender with a Revolving Facility Commitment and each Ancillary Facility Lender in respect of amounts outstanding to them under the Revolving Facility and Ancillary Facilities respectively shall be adjusted in accordance with this Clause 6.3 by making all necessary transfers of such portions of such claims such that following such transfers the Revolving Facility Outstandings and Ancillary Facility Outstandings (together with the rights to receive interest, fees and charges in relation

 

56



 

thereto) of (i) each Lender with a Revolving Facility Commitment and (ii) each Ancillary Facility Lender, in each case as at the Acceleration Date shall be an amount corresponding pro rata to the proportion that the sum of such Lender’s Revolving Facility Commitment and/or (as the case may be) Ancillary Facility Commitment bears to the sum of all of the Revolving Facility Commitments and the Ancillary Commitments, each as at the Acceleration Date.

 

(c)           No later than the third Business Day following the Acceleration Date each of the Ancillary Facility Lenders shall notify the Facility Agent in writing of the Sterling Amount of its Ancillary Facility Outstandings as at the close of business on the Acceleration Date, such amount to take account of any clearing of debits which were entered into the clearing system of such Ancillary Facility Lenders prior to the Acceleration Date and any amounts credited to the relevant accounts prior to close of business on the Acceleration Date.

 

(d)           On receipt of the information referred to in paragraph (c) above, the Facility Agent will promptly determine what adjustment payments (if any) are necessary as between the Lenders participating in the Revolving Facility and each Ancillary Facility Lender in order to ensure that, following such adjustment payments, the requirements of paragraph (b) above are complied with.

 

(e)           The Facility Agent will notify all the Lenders as soon as practicable of its determinations pursuant to paragraph (d) above, giving details of the adjustment payments required to be made.  Such adjustment payments shall be payable by the relevant Lenders and shall be made to the Facility Agent within 3 Business Days following receipt of such notification from the Facility Agent.  The Facility Agent shall distribute the adjustment payments received, among the Ancillary Facility Lenders and the Lenders participating in the Revolving Facility in order to satisfy the requirements of paragraph (b) above.

 

(f)            If at any time following the Acceleration Date, the amount of Revolving Facility Outstandings of any Lender or Ancillary Facility Outstandings of any Ancillary Facility Lender used in the Facility Agent’s calculation of the adjustments required under paragraph (d) above should vary for any reason (other than as a result of currency exchange fluctuation or other reason which affects all relevant Lenders equally), further adjustment payments shall be made on the same basis (mutatis mutandis) provided for in this Clause 6.3.

 

(g)           In respect of any amount paid by any Lender (a “Paying Lender”) pursuant to either of paragraphs (e) or (f) above, as between the Borrower and the Paying Lender, the amount so paid shall be immediately due and payable by the Borrower to the Paying Lender and the payment obligations of the Borrower to the Lender(s) which received such payment shall be treated as correspondingly reduced by the amount of such payment.

 

(h)           Each Lender shall promptly supply to the Facility Agent such information as the Facility Agent may from time to time request for the purpose of giving effect to this Clause 6.3.

 

(i)            If an Ancillary Facility Lender has the benefit of any Encumbrance securing any of its Ancillary Facilities, the realisations from such security when enforced will be treated as an amount recovered by such Ancillary Facility Lender in its capacity as a Lender which is subject to the sharing arrangements in Clause 36 (Sharing Among the Finance Parties) to the intent that such realisation should benefit all Lenders pro rata.

 

57



 

7.             OPTIONAL CURRENCIES

 

7.1          Selection of Currency

 

The Borrower shall select the currency of a Revolving Facility Advance made to it (which shall be Sterling, Dollars, euro or an Optional Currency) in the Utilisation Request relating to the relevant Revolving Facility Advance.

 

7.2          Unavailability of Optional Currency

 

If before 10.00 a.m. on the Quotation Date for the relevant Revolving Facility Advance:

 

(a)           a Lender notifies the Facility Agent that the relevant Optional Currency is not readily available to it in the amount required; or

 

(b)           a Lender notifies the Facility Agent that compliance with its obligation to participate in the Revolving Facility Advance in the proposed Optional Currency would contravene a Law or regulation applicable to it,

 

the Facility Agent will promptly give notice to the Borrower to that effect.  In this event, any Lender that gives notice pursuant to this Clause 7.2 will be required to participate in the relevant Revolving Facility Advance in Sterling (in an amount equal to that Lender’s Proportion of the Sterling Amount of the relevant Revolving Facility Advance or, in respect of a Rollover Advance, an amount equal to that Lender’s Proportion of the Sterling Amount of any amount that the Lenders are actually required to advance in accordance with Clause 8.2 (Rollover Advances)), and its participation will be treated as a separate Advance denominated in Sterling during that Term.

 

8.             REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS

 

8.1          Repayment of Revolving Facility Advances

 

Subject to the provisions of the Pari Passu Intercreditor Agreement upon and following an Integrated Merger Event, the Borrower shall (subject to Clause 8.2 (Rollover Advances)) repay the full amount of each Revolving Facility Advance on its Repayment Date.

 

8.2          Rollover Advances

 

Without prejudice to the Borrower’s obligation to repay the full amount of each Revolving Facility Advance made to it on the applicable Repayment Date, where, on the same day on which the Borrower is due to repay a Revolving Facility Advance (a “Maturing Advance”) the Borrower has also requested that a Revolving Facility Advance in the same currency as and in an amount which is equal to or less than the Maturing Advance be made to it (a “Rollover Advance”), subject to the Lenders being obliged to make such Rollover Advance under Clause 4.1 (Conditions to Utilisation), the amount to be so repaid and the amount to be so drawn down shall be netted off against each other so that the amount which the Borrower is actually required to repay on the applicable Repayment Date shall be the net amount remaining after such netting off.

 

8.3          Cash Collateralisation of Documentary Credits

 

The Borrower may give the Facility Agent not less than 5 Business Days’ prior written notice of its intention to repay a Documentary Credit and, having given such notice, shall procure that the relevant Outstanding L/C Amount in respect of such Documentary Credit is reduced to zero and repaid in full by providing cash cover therefor in accordance with Clause 1.9 (Documentary Credits) (in each case,) or by reducing the Outstanding L/C Amount of such Documentary Credit or by cancelling such

 

58



 

Documentary Credit and returning the original to the L/C Bank or the Facility Agent on behalf of the Lenders.

 

8.4          Cleandown

 

Notwithstanding any other provision of this Agreement, the Borrower shall procure that (other than in respect of any Ancillary Facility Outstandings or Documentary Credits) Revolving Facility Outstandings are reduced to zero for a period of at least 5 consecutive Business Days in each annual period during which the Revolving Facility is available for drawing under this Agreement.

 

9.             REPAYMENT OF TERM FACILITY OUTSTANDINGS

 

9.1          Repayment of A Facility Outstandings

 

The Borrower shall make such repayments as may be necessary to ensure that on each of the dates set out in the table below (each a “Repayment Date”) the aggregate Sterling Amount of the A Facility Outstandings (as at the close of business in London on the Closing Date) is reduced by an amount equal to the amount set out in the table below (each, a “Repayment Instalment”).

 

Repayment Date

 

Amount Repayable

 

 

 

 

 

 

30 September 2004

 

£

8,000,000

 

 

 

 

 

 

31 March 2005

 

£

30,000,000

 

 

 

 

 

 

30 September 2005

 

£

30,000,000

 

 

 

 

 

 

31 March 2006

 

£

59,800,000

 

 

 

 

 

 

30 September 2006

 

£

59,800,000

 

 

 

 

 

 

31 March 2007

 

£

95,300,000

 

 

 

 

 

 

30 September 2007

 

£

95,300,000

 

 

 

 

 

 

31 March 2008

 

£

110,900,000

 

 

 

 

 

 

30 September 2008

 

£

148,500,000

 

 

 

 

 

 

31 March 2009

 

£

127,500,000

 

 

 

 

 

 

30 September 2009

 

£

127,500,000

 

 

 

 

 

 

31 March 2010

 

£

127,500,000

 

 

 

 

 

 

30 September 2010

 

£

127,500,000

 

 

 

 

 

 

31 March 2011

 

£

127,400,000

 

 

59



 

 

9.2          Repayment of B Facility Outstandings

 

The Borrower shall repay the B Facility Advance by making such repayments (each, a “Repayment Instalment”) as may be necessary to ensure that on each of the dates falling 90 months and 96 months (each a “Repayment Date”) after the date of this Agreement, the aggregate Sterling Amount of the B Facility Outstandings (as at the close of business in London on the Closing Date) on a pro rata basis across each of the B1 Sub-Tranche, B2 Sub-Tranche and B3 Sub-Tranche, is reduced by 50% of such B Facility Outstandings.

 

9.3          No Reborrowing of Term Facility Advances

 

The Borrower may not reborrow any part of any Term Facility Advance which is repaid.

 

10.          CANCELLATION

 

10.1        Voluntary Cancellation

 

Subject to the provisions of the Pari Passu Intercreditor Agreement upon and following an Integrated Merger Event, the Borrower may, by giving to the Facility Agent not less than 3 Business Days’ prior written notice to that effect (unless an Instructing Group has given its prior consent to a shorter period) cancel any Available Facility in whole or any part (but if in part, in an amount that reduces the Sterling Amount of such Facility by a minimum amount of £10,000,000 and an integral multiple of £5,000,000) and any such cancellation shall (subject to the provisions of Clause 6.1(g) (Utilisation of Ancillary Facilities), reduce the relevant Available Commitments of the Lenders rateably.

 

10.2        Notice of Cancellation

 

Any notice of cancellation given by the Borrower pursuant to Clause 10.1 (Voluntary Cancellation) shall be irrevocable and shall specify the date upon which such cancellation is to be made and the amount of such cancellation.

 

10.3        Cancellation of Available Commitments

 

(a)           On each Termination Date any Available Commitments in respect of the Facility to which such Termination Date relates shall automatically be cancelled and the Commitment of each Lender in relation to such Facility shall automatically be reduced to zero.

 

(b)           No Available Commitments which have been cancelled hereunder may thereafter be reinstated.

 

11.          VOLUNTARY PREPAYMENT