CONFORMED COPY
--------------------------------------------------------------------------------
DATED 27 JULY 1999
--------------------------------------------------------------------------------
Borrowers
UPC FACILITY B.V.
TELEKABEL WIEN GmbH
XXXXX MULTICOM A/S (1)
Guaranteed by
UPC FACILITY B.V.
STIPDON INVESTMENTS B.V.
RADIO PUBLIC S.A.
CABLE-NETWORKS AUSTRIA HOLDING, B.V.
TELEKABEL HUNGARY N.V. (2)
Arranged by
BANK OF AMERICA INTERNATIONAL LIMITED
CIBC WORLD MARKETS PLC
CITIBANK, N.A.
MEESPIERSON N.V.
PARIBAS
THE ROYAL BANK OF SCOTLAND PLC
TORONTO DOMINION BANK EUROPE LIMITED (3)
The BANKS (4)
Agent
THE TORONTO-DOMINION BANK (5)
Security Agent
THE TORONTO-DOMINION BANK (6)
----------------------------------------
LOAN AND NOTE ISSUANCE AGREEMENT
for Facilities of up to Euro 1,000,000,000
----------------------------------------
Xxxxxx Xxxx
London
CONTENTS
Clause Heading Page
1 Purpose and interpretation........................................1
1.1 Purpose..................................................1
1.2 Definitions..............................................2
1.3 Headings................................................31
1.4 Construction of certain terms...........................31
1.5 Majority Banks..........................................32
1.6 Agent's opinion.........................................33
1.7 Bank's Commitments......................................33
2 The Facilities...................................................34
2.1 Amount..................................................34
2.2 Obligations several.....................................34
2.3 Interests several.......................................34
2.4 Telekabel Wien's interests several......................34
2.5 Xxxxx'x interests several...............................35
3 Conditions.......................................................36
3.1 Documents and evidence..................................36
3.2 General conditions precedent............................36
3.3 Waiver of conditions precedent..........................36
3.4 Notification............................................37
3.5 Existing UPC Security...................................37
3.6 Conditions subsequent...................................37
4 Drawings.........................................................38
4.1 Maximum Outstandings....................................38
4.2 Drawdown................................................39
4.3 Xxxx and Amount of Revolving Drawings...................39
4.4 Term and Amount of Term Drawings........................40
4.5 Selection of currencies.................................40
4.6 Limit on currencies; non-availability...................40
4.7 Currency Amounts........................................40
4.8 Notification to Banks...................................41
4.9 Repayment of Revolving Drawings.........................41
4.10 Division and consolidation of Term Drawings.............41
4.11 Initial Drawings........................................42
4.12 Revaluation of Term Drawings in Optional Currency.......42
4.13 Application of proceeds.................................43
4.14 Telekabel Notes.........................................43
4.15 Subsidiary Drawings.....................................44
5 Interest; alternative interest rates.............................45
5.1 Normal interest rate....................................45
5.2 Applicable Margin.......................................45
5.3 Interest Periods........................................46
5.4 Selection of Interest Periods for Term Drawings.........46
5.5 Determination of Interest Periods for Term Drawings.....46
5.6 Interest for late payment...............................46
5.7 Notification of interest periods and interest rates.....47
5.8 Reference Bank quotations...............................47
5.9 Market disruption; non-availability.....................48
6 Repayment, prepayment and cancellation...........................50
6.1 Repayment of Revolving Drawings.........................50
6.2 Reduction of Tranche A Commitment.......................50
6.3 Repayment of the Facility B Loan........................51
6.4 Voluntary prepayment....................................52
6.5 Additional voluntary prepayment.........................52
6.6 Mandatory prepayment....................................52
6.7 Application and amounts payable on prepayment...........55
6.8 Notice of prepayment....................................55
6.9 Cancellation of Commitments.............................56
7 Fees and expenses................................................57
7.1 Fees....................................................57
7.2 Expenses................................................57
7.3 Value Added Tax.........................................58
7.4 Stamp and other duties..................................58
7.5 Indemnity...............................................58
8 Payments and Taxes; accounts and calculations....................59
8.1 No set-off or counterclaim; distribution to the Banks...59
8.2 Payments by the Banks...................................59
8.3 Non-Banking Days........................................59
8.4 Agent may assume receipt................................59
8.5 Grossing-up for Taxes...................................60
8.6 Qualifying Banks........................................60
8.7 Claw-back of Tax benefit................................61
8.8 Certification to secure a Tax benefit...................61
8.9 Bank accounts...........................................62
8.10 Partial payments........................................62
8.11 Calculations............................................63
8.12 Certificates conclusive.................................63
8.13 Reconventioning.........................................63
8.14 Effect of monetary union................................64
i
9 Guarantee........................................................65
9.1 Limits of Guarantee.....................................65
9.2 Covenant to pay.........................................65
9.3 Guarantors as principal debtors; indemnity..............66
9.4 No security taken by Guarantors.........................66
9.5 Interest................................................66
9.6 Continuing security and other matters...................67
9.7 New accounts............................................67
9.8 Liability unconditional.................................67
9.9 Collateral Instruments..................................68
9.10 Waiver of Guarantors'rights.............................68
9.11 Suspense accounts.......................................69
9.12 Settlements conditional.................................69
9.13 Guarantors to deliver up certain property...............69
9.14 Retention of this guarantee.............................69
9.15 Changes in constitution or reorganisations of
Secured Parties.........................................69
9.16 Other Guarantors........................................70
9.17 Acceding Guarantors.....................................70
10 Representations and warranties...................................72
10.1 Repeated representations and warranties.................72
10.2 Further representations and warranties..................74
10.3 First Drawing representations and warranties............76
10.4 Repetition..............................................79
11 Undertakings.....................................................80
11.1 Positive covenants......................................80
11.2 Negative covenants......................................90
12 Financial covenants..............................................96
12.1 Financial covenants.....................................96
12.2 Auditors certificate....................................97
12.3 Negative EBITDA.........................................98
13 Events of Default................................................99
13.1 Events of default.......................................99
13.2 Acceleration...........................................107
13.3 Demand basis...........................................108
14 Indemnities.....................................................109
14.1 Miscellaneous indemnities..............................109
14.2 Currency of account: currency indemnity................109
14.3 Environmental indemnity................................110
14.4 ESGB reserve requirements..............................110
15 Unlawfulness and increased costs; mitigation....................111
15.1 Unlawfulness...........................................111
15.2 Increased costs........................................111
15.3 Exceptions.............................................112
15.4 Mitigation.............................................113
15.5 Replacement of Banks...................................113
16 Set-off and pro rata payments...................................115
16.1 Set-off................................................115
16.2 Pro rata payments......................................115
16.3 No release.............................................116
16.4 No charge..............................................116
17 Assignment substitution and lending offices.....................117
17.1 Benefit and burden.....................................117
17.2 No assignment by Obligors..............................117
17.3 Assignment by Xxxxx....................................117
17.4 Transfer...............................................117
17.5 Reliance on Transfer Certificate.......................118
17.6 Authorisation of Agent.................................119
17.7 Construction of certain references.....................119
17.8 Lending offices........................................119
17.9 Disclosure of information..............................119
18 Joint Arrangers, Agent, Security Agent and Reference Banks......120
18.1 Appointment of Agent...................................120
18.2 Agent's actions........................................120
18.3 Agent's duties.........................................120
18.4 Agent's rights.........................................121
18.5 No liability of Joint Arrangers, Security
Agent and Agent........................................122
18.6 Non-reliance on Joint Arrangers, Security
Agent or Agent.........................................123
18.7 No Responsibility on Joint Arrangers, Security
Agent or Agent for any Obligor's performance...........123
18.8 Reliance on documents and professional advice..........124
18.9 Other dealings.........................................124
18.10 Rights of Agent as Bank: no partnership................124
18.11 Amendments: waivers....................................124
18.12 Reimbursement and indemnity by Xxxxx...................125
18.13 Retirement of Agent....................................126
18.14 Change of Reference Banks..............................126
18.15 Prompt distribution of proceeds........................127
ii
19 Notices and other matters.......................................128
19.1 Notices................................................128
19.2 Notices through the Agent..............................130
19.3 No implied waivers remedies cumulative.................130
19.4 English translations...................................130
19.5 Counterparts...........................................131
19.6 No breach of Austrian Agreements.......................131
20 Governing law and Jurisdiction..................................132
20.1 Law....................................................132
20.2 Submission to jurisdiction.............................132
20.3 Agent for service of process...........................132
Schedule
1 Part A - The Banks and their Commitments........................133
Part B - Original Guarantors....................................136
Part C - Borrowers..............................................137
2 Form of Drawdown Notice.........................................138
3 Documents and evidence required prior to the
giving of the Drawdown Notice in respect of the
first Drawing...................................................140
4 Calculation of Additional Cost..................................147
5 Form of Transfer Certificate....................................149
6 Part A - Compliance Certificate to be delivered
by an Authorised Officer of UPCF or UPC................153
Part B - Compliance Certificate to be delivered by
the auditors of UPCF or UPC............................155
7 Registrations and Licences......................................157
8 Principal Agreements............................................163
9 Part A - Guarantor's Deed of Accession..........................164
Part B - Documents and Evidence to be delivered
by an Acceding Guarantor...............................165
10 Form of Quarterly Management Accounts/Monthly Information.......167
11 Form of Telekabel Note..........................................175
12 Norwegian Asset Security........................................176
13 Part A - UPCF Group Structure Chart as at
the date of the first Drawing..........................182
Part B - UPCF Group Structure Chart after the
Restructuring..........................................183
iii
THIS AGREEMENT is dated 27 July, 1999 and made BETWEEN:
(1) UPC FACILITY B.V., TELEKABEL WIEN GmbH and XXXXX MULTICOM A/S as
Borrowers;
(2) THE ENTITIES listed in part B of schedule 1 as Original Guarantors;
(3) BANK OF AMERICA INTERNATIONAL LIMITED, CIBC WORLD MARKETS PLC,
CITIBANK, N.A., MEESPIERSON N.V., PARIBAS, THE ROYAL BANK OF SCOTLAND
PLC and TORONTO DOMINION BANK EUROPE LIMITED as Joint Arrangers;
(4) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set
out in part A of schedule 1;
(5) THE TORONTO-DOMINION BANK as Agent; and
(6) THE TORONTO-DOMINION BANK as Security Agent.
IT IS AGREED as follows:
1 Purpose and interpretation
1.1 Purpose
(a) This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrowers credit facilities of up to Euro
1,000,000,000 (comprising Facility A and Facility B) to be used (A)
(in the case of Facility A) for (i) general corporate purposes of the
Restricted Group, (ii) financing capital expenditure of the Restricted
Group relating to upgrading the Cable Systems of the Restricted Group
and expanding the products made available by the Restricted Group
through such Cable Systems, (iii) financing Permitted European
Acquisitions, (iv) financing Permitted Payments, (v) financing
interest and fees payable and expenses incurred in connection with the
Facilities and (vi) if the aggregate principal amount outstanding to
the relevant Borrowers under the Existing UPC Senior Facility together
with all unpaid interest thereon and any other amounts payable in
relation thereto, which are required to be discharged pursuant to
clause 4.11, exceeds Euro 250,000,000, for the purpose of discharging
such amount as exceeds Euro 250,000,000 and (B) (in the case of
Facility B) for the purposes of refinancing the Existing UPC Senior
Facility and for general corporate purposes.
(b) For the purposes of this Agreement, Facility A and Facility B shall
only be made available to Telekabel Wien against the issue by
Telekabel Wien of Telekabel Notes within the overall limit of the
Facilities and, without prejudice to the foregoing, Telekabel Wien
shall, subject to the approval of the managing board of Telekabel Wien
of the amount of such borrowing, be permitted to borrow against the
issue of Telekabel Notes upon and subject to the terms of this
Agreement, a sum of up to Austrian Schillings 2,500,000,000 or such
greater amount as shall be agreed upon by the supervisory board of
Telekabel Wien from time to time.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"1999 Budget" means the budget for the Restricted Group for the period
commencing on 1st January, 1999 and ending on 31st December, 1999
contained within the Management Base Case;
"Acceding Guarantors" means those entities which have become a party to
this Agreement as Guarantors pursuant to clause 9.17;
"Additional Cost" means in relation to any period a percentage
calculated for such period at an annual rate determined in accordance
with schedule 4;
"Adjusted Annualised Consolidated EBITDA" means twice the aggregate of
the Adjusted Consolidated EBITDA in respect of the relevant Six Month
Period;
"Adjusted Consolidated EBITDA" means, in respect of each Quarterly
Period or financial year, the consolidated EBITDA of the Restricted
Group adjusted so that any EBITDA (whether positive or negative)
attributable to New Services is not taken into account;
"Affiliates" means, in respect of any person, a direct or indirect
Subsidiary or Holding Company of that person;
"Agent" means The Toronto-Dominion Bank of Triton Court, 00/00 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX or such other person as may be appointed agent
for the Banks pursuant to clause 18.13;
"Annual Budget" means a budget in respect of the Restricted Group for
each financial year containing information of a substantially similar
type and to a substantially similar level of detail as the 1999 Budget
or containing such additional information or additional level of detail
as UPCF reasonably deems necessary, or, omitting such information or to
such lesser level of detail, as has at the relevant time, been approved
in writing by the Agent;
1
"Annualised Consolidated EBITDA" means twice the aggregate of the
Consolidated EBITDA in respect of the relevant Six Month Period;
"Approved Stock Options" means any options granted by a member of the
Restricted Group to directors and/or employees of such member of the
Restricted Group to subscribe for shares in that member of the
Restricted Group provided that the maximum aggregate amount of such
options shall not exceed eight per cent. of its issued share capital,
in the case of Stipdon, and five per cent. of its issued share capital,
in the case of each other member of the Restricted Group;
"Associated Company" of a person means (i) any other person which is
directly or indirectly Controlled by, under common Control with or
Controlling such person or (ii) any other person owning beneficially
and/or legally directly or indirectly 10 per cent. or more of the
equity interest in such person or 10 per cent. of whose equity interest
is owned beneficially and/or legally directly or indirectly by such
person;
"Austrian Agreements" means the following documents and agreements
which have been entered into by the Telekabel Austrian Entities:
(a) Vereinbarung (agreement on mutual relations) dated 30th
November 1977 between Telekabel Wien and Kabel-TV-Wien GmbH;
(b) Entgeltvereinbarung (agreement on details of payment), dated
23rd November 1987 between Telekabel Wien and Stadt Wien;
(c) Programmnutzungsvereinbarung (agreement on use of television
and radio programmes) dated 10th December 1987 between
Telekabel Wien and Kabel-TV-Wien GmbH;
(d) Treuhand-und Geschaftsbesorgungsvertrag (trust and agency
agreement) dated 29th November 1988 between Telekabel Wien,
Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Betriebsgesellschaft mbh and
Philips Data Systems GmbH;
(e) Kostenvergutung (reimbursement of costs agreement) dated 27th
July 1994 by Telekabel Wien in favour of Kabel-TV Wiener
Neustadt/Neunkirchen GmbH;
(f) Syndikatsvereinbarung (shareholders agreement) dated 28th June
1995 between Osterreichische Philips Industrie GmbH, CNA and
Kabel-TV-Wien GmbH;
(g) Geschaftsordnung (internal organisational rules) Telekabel
Wien GmbH dated 28th June 1995 between Osterreichische Philips
Industrie GmbH, CNA and Kabel-TV-Wien GmbH;
(h) Entgeltvereinbarung (agreement on details of payment) dated
9th February 1988 between Telekabel Graz GmbH and Grazer
Kabel-TV GmbH;
(i) Grundsatzvereinbarung (basic agreement on mutual relations)
dated 30th November 1977 entered into between Osterreichische
Philips Industrie GmbH and Kabel-TV-Wien GmbH;
(j) Dividendengarantie (guarantee of dividends) dated 30th
November 1987 entered into by Osterreichische Philips
Industrie GmbH in favour of Kabel-TV-Wien GmbH;
(k) Grundsatzvereinbarung (basic agreement on mutual relations and
operations of project company (Telekabel Graz GmbH)) dated 5th
May 1983 entered into between Osterreichische Philips
Industrie GmbH and Grazer Kabel-TV GmbH;
(l) Dividendengarantie (guarantee of dividends) dated 14th
November 1988 entered into by Osterreichische Philips
Industrie GmbH in favour of Grazer Kabel-TV GmbH;
(m) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel Klagenfurt GmbH) dated 6th August 1979
entered into between Osterreichische Philips Industrie GmbH
and Landeshauptstadt Klagenfurt;
(n) Dividendengarantie (guarantee of dividends) dated 18th
December 1990 entered into by Osterreichische Philips
Industrie GmbH in favour of Landeshauptstadt Klagenfurt;
(o) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Region Baden
Betriebsgesellschaft mbH) dated 18th February 1980 entered
into between Osterreichische Philips Industrie GmbH and
Kabel-TV Sud GmbH;
2
(p) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Gesellschaft mbH) dated 23rd May 1979 entered into between
Osterreichische Philips Industrie GmbH and Kabel-TV Wiener
Neustadt GmbH; and
(q) Vereinbarung (agreement relating to remunerating Xx. Xxxxxxx
Xxxxxxxx-Xxxxx) dated 30th November 1993 entered into between
Telekabel Wien and Kabel-TV-Wien GmbH;
"Austrian Licences" means those licences and registrations specified
as Austrian Licences in schedule 7;
"Authorised Officer" means that officer or officers of the relevant
Borrower authorised to sign Compliance Certificates, Drawdown Notices
and other notices, requests, or confirmations referred to in this
Agreement or relating to the Facilities and that officer or officers
of UPC authorised to sign Compliance Certificates and other notices,
requests, or confirmations referred to in this Agreement relating to
the Facilities which are to be given by UPC;
"Austrian Security" means each of:
(a) a supplemental pledge of receivables dated 4 June 1998 granted by
Telekabel Wien in favour of The Toronto-Dominion Bank; and
(b) a pledge of receivables (Pfandbestellungsvertag) dated 8 December
1997 with attached bank account pledge granted by Telekabel Wien
in favour of the Toronto-Dominion Bank;
"Banking Day" means:
(a) for interest rate fixing and payments purposes in relation to
euro and National Currency Units, a Target Day; and
(b) for all other purposes (including, but not limited to, rate
fixing and payments in relation to Optional Currency (other than
National Currency Units) and receiving notices), a day other than
Saturday or Sunday on which banks are open for business in London
and (in the case of rate fixing and payments in relation to
Optional Currency, other than National Currency Units and
Sterling) the principal financial centre in the jurisdiction of
the Optional Currency concerned;
"Banks" means the banks and financial institutions listed in part A of
schedule 1 and includes their successors in title and Transferees;
"Belgian Licences" means those licences and registrations specified as
Belgian Licences in schedule 7;
"Belmarken" means Belmarken Holding B.V., a private limited liability
company incorporated under the laws of The Netherlands with its
registered office at Amsterdam and its business office at Xxxxxxxx
Xxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx;
"Borrowed Money" means Indebtedness in respect of (i) money borrowed or
raised and debit balances at banks, (ii) any bond, note, loan stock,
debenture or similar debt instrument, (iii) acceptance or documentary
credit facilities, (iv) receivables sold or discounted (otherwise than
on a non-recourse basis and other than in the normal course of business
for collection), (v) payments for assets acquired or services supplied
deferred for a period of over 180 days after the relevant assets were
or are to be acquired or the relevant services were or are to be
supplied, (vi) finance leases and hire purchase contracts to the extent
that they constitute capital leases within the meaning of GAAP, (vii)
any other transaction (including without limitation forward sale or
purchase agreements) having the commercial effect of a borrowing or
raising of money or of any of (ii) to (vi) above and (viii) guarantees
in respect of Indebtedness of any person falling within any of (i) to
(vii) above (for the avoidance of doubt, without double counting,
guarantees given by a member of the Restricted Group for the
Indebtedness of the type falling within (i) to (vii) above of another
member of the Restricted Group) Provided that Indebtedness which has
been cash collateralised shall not be included in any calculation of
Borrowed Money to the extent so cash collateralised and Indebtedness
which is in the nature of equity (other than redeemable shares) shall
not be regarded as Borrowed Money;
"Borrower Pledge of Shareholder Loans" means the pledge of shareholder
loans entered into by UPCF, Stipdon, UPC Romania Holding B.V.,
TeleKabel Hungary, UPC Slovakia Holding B.V. and UPC Czech Holding
B.V. in favour of the Security Agent in the agreed form;
"Borrower Share Securities" means the share pledges given to the
Security Agent by UPC in respect of its shareholding in each Borrower
other than Telekabel Wien in the agreed form (and for the avoidance of
doubt does not include a share pledge in respect of Telekabel Wien);
3
"Borrowers" means the entities whose names are set out in part C of
schedule 1 provided that, for the purposes of this Agreement, the term
"Borrowers" when used in connection with Telekabel Wien, shall mean
Telekabel Wien as an issuer of Telekabel Notes in accordance with the
terms and conditions of this Agreement;
"Business" means any business of the Restricted Group (i) that consists
of the upgrade, construction, creation, development, marketing,
acquisition (to the extent permitted under this Agreement), operation,
utilisation and maintenance of networks that use existing or future
technology for the transmission, reception and delivery of voice, video
and/or other data (including networks that transmit, receive and/or
deliver services such as multi-channel television and radio,
programming, telephony, Internet services and content, high-speed data
transmission, video, multi-media and related activities) or (ii) that
supports, is incidental to or is related to any such business (save
that the only programming activity that is included within paragraphs
(i) and (ii) of this definition is the provision of local programming)
or (iii) that comprises being a Holding Company of one or more persons
engaged in such business, and references to "business" or "ordinary
course of business" shall be similarly construed;
"Cable Systems" means the telecommunications and/or television systems
constructed or to be constructed in relation to the Permitted Business
and includes any part of such system and all modifications,
substitutions, replacements, renewals and extensions made to such
systems;
"CNA" means Cable Networks Austria Holding B.V., a private limited
liability company incorporated under the laws of the Netherlands with
its registered office at Amsterdam and its business office at Xxxxxxxx
Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx;
"CNA Share Security" means the share pledge to be given to the Security
Agent by UPC in respect of its shareholding in CNA in the agreed form
(and which share pledge is to be assumed or replaced in substantially
the same form by UPCF upon transfers of UPC's shareholding in CNA to
UPCF in connection with the Restructuring);
"Collateral Instruments" means notes, bills of exchange, certificates
of deposit and other negotiable and non-negotiable instruments,
guarantees and any other documents or instruments which contain or
evidence an obligation (with or without security) to pay, discharge or
be responsible directly or indirectly for, any Indebtedness or
liabilities under this Agreement and includes Encumbrances;
"Commitment" means, in relation to a Bank, at any relevant time the
aggregate of its Facility A Commitment and/or Facility B Commitment;
"Compliance Certificate" means either (i) a certificate substantially
in the form set out in part A of schedule 6 in relation to the
compliance (or otherwise) with the undertakings in clause 12 (if not in
compliance indicating the extent of the breach) issued by an Authorised
Officer of UPCF or UPC in relation to Quarterly Management Accounts or
(ii) a certificate substantially in the form set out in part B of
schedule 6 in relation to the compliance (or otherwise) with the
undertakings in clause 12 (if not in compliance indicating the extent
of the breach) issued by the auditors of UPCF or UPC in relation to
annual financial statements;
"Consolidated EBITDA" means the aggregate of the consolidated EBITDA
of the Restricted Group in respect of the relevant Six Month Period;
"Contribution" means, in relation to a Bank, the principal amount of
the Loan (including the Telekabel Notes) owing to such Bank at any
relevant time;
"Control" means the power of a person:
(a) by means of the holding of shares or the possession of
voting power in or in relation to any other person; or
(b) by virtue of any powers conferred by the articles of
association or other documents regulating any other person,
to direct or cause the direction of the management and policies of that
other person;
"Current Assets" means, at any relevant time, the aggregate of the
current assets (excluding cash) of the Restricted Group at such time
which would be included as current assets in a consolidated balance
sheet of the Restricted Group drawn up at such time in accordance with
GAAP;
4
"Current Liabilities" means, at any relevant time, the aggregate of the
current liabilities (excluding short term debt and overdrafts) of the
Restricted Group at such time which would be included as current
liabilities in a consolidated balance sheet of the Restricted Group
drawn up at such time in accordance with GAAP;
"Deed of Guarantor Accession" means a deed to be executed and delivered
by any Acceding Guarantor pursuant to clause 9.17 substantially in the
form of schedule 9 part A;
"Default" means any Event of Default or any event or circumstance which
would, upon the giving of a notice by the Agent and/or the expiry of
the relevant period (in each case as specified in clause 13.1),
constitute an Event of Default;
"Derivatives Contract" means a contract, agreement or transaction
which is:
(i) a rate swap, basis swap, forward rate transaction, equity (or
equity or other index) swap or option, bond option, interest
rate option, foreign exchange transaction, collar or floor,
currency swap, currency option or any other similar
transaction; and/or
(ii) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"Disclosure Letter" means the letter from UPCF to the Agent of even
date herewith, the form and content of which have previously been
approved by the Agent;
"Drawdown Date" means the date, being a Banking Day on which an
Drawing is or is to be made;
"Drawdown Notice" means a notice in the form or substantially in the
form of schedule 2;
"Drawing" means a Revolving Drawing or a Term Drawing (as applicable);
"Eastern Europe" means Europe other than Western Europe;
"EBITDA" means, in respect of any period or person, the Net Income of
that person (plus, in the case of the Restricted Group, any amount
attributable to non-cash compensation payable to employees or directors
of members of the Restricted Group deducted in calculating Net Income,
any depreciation, amortisation, other non-cash charges (such as
deferred Taxes), accrued Management Fees (whether or not paid), fees
accrued (whether or not paid) in respect of Borrowed Money and interest
expense and other charges in respect of Borrowed Money) for such period
adjusted as follows:
(a) minus extraordinary income of the relevant person for such period;
(b) plus any extraordinary expenses of the relevant person for such period;
(c) minus any interest income of the relevant person for such period; and
(d) in the case of the Restricted Group, minus any Management Fees paid during
such period;
all as determined in accordance with GAAP and (in the case of the
Restricted Group) as shown in, the relevant annual financial statements
or Quarterly Management Accounts prepared and delivered to the Agent
pursuant to clause 11.1(f)(i) or clause 11.1(g) (as the case may be);
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment by way of security, trust
arrangement for the purpose of providing security or other security
interest of any kind securing any obligation of any person or any other
arrangement having the effect of conferring rights of retention or
other disposal rights over an asset (including without limitation title
transfer and/or retention arrangements having a similar effect or a
deposit of money with the primary intention of affording a right of
set-off) and includes any agreement to create any of the foregoing but
does not include liens arising in the ordinary course of business by
operation of law and not by way of contract;
"Environmental Claim" means any claim, notice of violation,
prosecution, demand, action, official warning, abatement or other order
(conditional or otherwise) relating to Environmental Matters or any
notification or order requiring compliance with the terms of any
Environmental Licence or Environmental Law;
"Environmental Law" includes all or any law, statute, rule, regulation,
treaty, by-law, code of practice, order, notice, demand, decision of
the courts or of any governmental authority or agency or any other
regulatory or other body in any jurisdiction relating to Environmental
Matters applicable to or binding on any member of the Restricted Group;
5
"Environmental Licence" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law
in connection with the activities carried on by any member of the
Restricted Group;
"Environmental Matters" includes (a) the generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling,
importation, exportation, processing, collection, sorting, presence or
manufacture of any waste or any Relevant Substance; (b) nuisance,
noise, defective premises, health and safety at work or elsewhere; and
(c) the pollution, conservation or protection of the environment (both
natural and built) or of man or any living organisms supported by the
environment or any other matter whatsoever affecting the environment or
any part of it;
"EURIBOR" means, in relation to any amount in euros and any period, the
offered rate for deposits for such amount and for such period which is:
(a) the rate of interest for such period which appears on the
"Euribor01" page of the Reuters screen (or such other page on
the Reuters screen as may customarily be used from time to
time to display EURIBOR rates) at or about 11 a.m. (Central
European Time) on the Quotation Date for such period; or
(b) if the relevant page is not displayed on the Reuters screen or
the Reuters screen is not operating at the relevant time or if
no such offered rate appears on the Reuters screen for that
period, the rate of interest for such period which appears on
page 248 of the Dow Xxxxx Telerate screen (or such other page
on the Dow Xxxxx Telerate screen as may customarily be used
from time to time to display EURIBOR rates) at or about 11
a.m. (Central European Time) on the Quotation Date for such
period; or
(c) if the relevant rate of EURIBOR cannot be determined in
accordance with paragraphs (a) and (b) above, the rate
determined by the Agent to be the arithmetic mean (rounded
upwards if necessary to the nearest one sixteenth of one per
cent.) of the rates respectively quoted to the Agent by each
of the Reference Xxxxx (provided always that at least two
Reference Banks shall have given such quotation) at the
request of the Agent as such Reference Bank's offered rate
for deposits in an amount approximately equal to the amount
in relation to which EURIBOR is to be determined for a
period equivalent to such period to leading banks in the
London Interbank Market at or about 11 am (London time) on
the Quotation Date for such period;
"Euro Amount" means (a) in relation to a Drawing to be drawn down in
euros, the amount in euros so drawn down and (b) in relation to a
Drawing to be drawn down in an Optional Currency, the amount in euros
which would be required to purchase the principal amount of that
Drawing as determined in accordance with clause 4.7 and, in the case of
a Term Drawing, as adjusted at the end of each Interest Period in
accordance with clause 4.12, in each case as reduced by any repayment
or prepayment under this Agreement.
"euro" and "Euro " means the single currency of Participating Member
States introduced in accordance with the provisions of Article 109(l)4
of the Treaty and in respect of all payments to be made under this
Agreement in euros means immediately available, freely transferable
funds;
"Event of Default" means any of the events or circumstances described
in clause 13.1;
"Excess Cash Flow" means the aggregate consolidated EBITDA of the
Restricted Group calculated for the most recently ended financial year
(beginning with the financial year ending on 31st December 2003), as
shown in the Quarterly Management Accounts in respect of the Quarterly
Period ending on 31st December in any relevant year, (A) less (i) any
interest and other charges in respect of Borrowed Money of the
Restricted Group paid during such financial year, (ii) repayments
and/or prepayments of any Borrowed Money of the Restricted Group paid
during such financial year and (iii) capital expenditure of the
Restricted Group incurred during such financial year and (B) either (1)
plus any amount by which Net Working Capital at the commencement of
such financial year exceeds Net Working Capital at the close of such
financial year or, as appropriate, (2) minus any amount by which Net
Working Capital at the end of such financial year exceeds Net Working
Capital at the beginning of such financial year;
"Existing UPC Senior Facility" means the revolving credit facility (in
the face amount of up to NLG 1,100,000,000 and in respect of which an
amount of up to NLG 500,000,000 is outstanding as at the date of this
Agreement) made available pursuant to the loan and note issuance
agreement dated 8 October 1997 made between UPC (1), the entities
listed in part C of schedule 1 thereto as Borrowers (2), the entities
listed in Part B of schedule 1 thereto as Guarantors (3), The
Toronto-Dominion Bank as Arranger (4), the banks and financial
institutions whose names and addresses are set out in part A of
6
schedule 1 thereto (5), The Toronto-Dominion Bank as Agent (6) and The
Toronto-Dominion Bank as Security Agent (7), as amended, modified,
restated and supplemented prior to the date of this Agreement;
"Facilities" means each of Facility A and Facility B and (as the
context requires) "Facility" means either of them;
"Facilities Limit" means the aggregate of the Facility A Limit and the
Facility B Limit;
"Facility A" means the reducing revolving credit and note issuance
facility granted by the Banks to the Borrowers in accordance with
clause 2.1(a);
"Facility A Commitment" means, in relation to a Bank, the amount set
opposite its name in column 1 of part A of schedule 1 or, as the case
may be, in any relevant Transfer Certificate, as amended by any
relevant term of this Agreement;
"Facility A Limit" means Euro 750,000,000 as reduced pursuant to the
terms of this Agreement, including, without limitation, clause 6.2;
"Facility A Outstandings" means the aggregate of the Euro Amount of
all outstanding Drawings under Facility A;
"Facility A Revolving Period" means the period from (and including) the
date of this Agreement to (and including) 27 July 2006;
"Facility A Total Commitments" means the aggregate for the time being
of the Facility A Commitments of all the Banks being Euro 750,000,000
at the date hereof;
"Facility B" means the term loan and note issuance facility granted by
the Banks to the Borrowers in accordance with clause 2.1(b);
"Facility B Commitment" means, in relation to a Bank, the amount set
opposite its name in column 2 of part A of schedule 1 or, as the case
may be, in any relevant Transfer Certificate, as amended by any
relevant term of this Agreement;
"Facility B Limit" means Euro 250,000,000 as reduced pursuant to the
terms of this Agreement, including, without limitation, clause 6.3;
"Facility B Outstandings" means the aggregate of the Euro Amount of
all outstanding Drawings under Facility B;
"Facility B Total Commitments" means the aggregate for the time being
of the Facility B Commitments of all the Banks being Euro 250,000,000
at the date hereof;
"Final Repayment Date" means 27 July 2006;
"Finance Documents" means this Agreement, the Telekabel Notes, the
Security Documents, the High Yield Hedging Arrangements (to the extent
that any Bank or any of its Affiliates is a party thereto) and the
Interest Rate Hedging Arrangements (to the extent that any Bank or any
of its Affiliates is a party thereto);
"Finance Parties" means the Agent, the Joint Arrangers, the Security
Agent and the Banks;
"Finance Period" means the period from the date of this Agreement until
the date on which none of the Secured Parties and the Obligors has any
actual or contingent obligations (other than indemnities which survive
repayment and termination of this Agreement and the Security Documents)
under this Agreement or the Security Documents;
"Funding Cost" means (i) in respect of Drawings to be made in euros or
in a National Currency Unit, EURIBOR or (ii) in respect of Drawings to
be made in any Optional Currency, LIBOR;
"GAAP" means generally accepted accounting principles and practices in
the Netherlands;
"Guarantee" means the guarantee of the Guarantors contained in clause 9
and includes each separate or independent stipulation or agreement by
the Guarantors contained in clause 9;
"Guaranteed Liabilities" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantors in clause 9.2
(disregarding the limits set out in clause 9.1);
"Guarantors" means (i) the Original Guarantors and (ii) the Acceding
Guarantors;
"High Yield Hedging Arrangements" means any currency and/or interest
rate hedging arrangements entered into in relation to the High Yield
Notes;
7
"High Yield Hedging Banks" means Banks or their Affiliates who are
party to High Yield Hedging Arrangements;
"High Yield Notes" means the High Yield Notes issued or to be issued by
UPC in July or August 1999 for gross proceeds of not less than
Euro 1,500,000,000;
"Holding Company" in relation to a person, means an entity of which
that person is a Subsidiary;
"Hungarian Agreement" means the shareholder agreement dated 30 June
1998 between UPC, Stipdon, The First Hungary Fund Limited and FHF Naco
N.V. in relation to Telekabel Hungary;
"Hungarian Licences" means those licences or registrations specified
as Hungarian Licences in schedule 7;
"Immaterial Subsidiary" means any Subsidiary of an Obligor which
Subsidiary is incorporated and operates solely in Eastern Europe
provided that the aggregate of the contributions of the Immaterial
Subsidiaries to the consolidated total assets, consolidated revenues
and consolidated EBITDA of the Restricted Group attributable to Eastern
Europe does not exceed in aggregate ten per cent. For the purposes of
this definition consolidated revenues and consolidated EBITDA of the
Restricted Group or any Subsidiary of an Obligor shall be determined by
reference to the twelve month period ending on the most recent Quarter
Day in respect of which Quarterly Management Accounts have been
delivered to the Agent under this Agreement and consolidated total
assets shall be determined as at such Quarter Day by reference to such
Quarterly Management Accounts;
"Incapacity" means, in relation to a person, the insolvency,
liquidation, dissolution, winding-up, administration, receivership or
other incapacity of that person whatsoever (and in the case of a
partnership, includes the termination or change in composition of the
partnership);
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"Information Memorandum" means the Information Memorandum dated July
1999 and any subsequent update approved in writing by UPCF and the
Joint Arrangers which, in either case, is distributed by the Joint
Arrangers at the request of UPCF in connection with this Agreement;
"Intellectual Property Rights" means any patent, trademark, service
mark, registered design, trade name or copyright required to carry on
the business of any member of the Restricted Group;
"Interconnect Agreements" means the agreements listed in schedule 8
and any interconnect agreements maintained pursuant to clause 11.1(y);
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means, in relation to any Drawing, each period for
the calculation of interest in respect of such Drawing ascertained in
accordance with clauses 5.3, 5.4 and 5.5;
"Interest Rate Hedging Arrangements" means the interest rate hedging
arrangements with respect of the interest rate hedging programme
referred to in clause 11.1(s);
"Interest Rate Hedging Banks" means Banks or their Affiliates who are
party to the Interest Rate Hedging Arrangements;
"Xxxxx" means Xxxxx Multicom A/S, a corporation incorporated in Norway
(organisation no. 919 394 056) having its corporate seat at Xxxxxxxxxx
0, 0000 Xxxx, Xxxxxx;
"Joint Arrangers" means Bank of America International Limited of New
Broad Street House, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, CIBC World
Markets plc of Cottons Centre, Cottons Lane, London SE1 2QL, Citibank,
N.A. of PO Box 2OO, Cottons Centre, Xxxx Xxxx, London SE1 2QT,
MeesPierson N.V. of Xxxxxxxxxx 00, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx,
Paribas of 0 xxx x'Xxxxx, 00000 Xxxxx, The Royal Bank of Scotland plc
of Waterhouse Square, 000-000 Xxxxxxx, Xxxxxx XX0X 0XX and Toronto
Dominion Bank Europe Limited of Triton Court, 00/00 Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX;
"LIBOR" means, in relation to a particular period:
(a) the arithmetic mean (rounded upwards, if necessary, to five
decimal places) of the London interbank offered rates for
deposits of the currency in question for a period equal to
such period at or about 11 a.m. on the Quotation Date for such
period as displayed on the relevant page of the Xxxxxx Monitor
Money Rates Service (or such other page as may replace such
page on such service for the purpose of displaying London
interbank offered rates of leading banks for deposits of that
currency); or
8
(b) if on such date as is referred to in paragraph (a) the offered
rates for the relevant period of fewer than two leading banks
are so displayed, the arithmetic mean (rounded upwards, if
necessary, to five decimal places) of the London interbank
offered rates for deposits of the currency in question for a
period equal to such period at or about 11 a.m. on the
Quotation Date for such period as displayed on the relevant
page of the Telerate Service (or such other page as may
replace such page on such service for the purpose of
displaying London interbank offered rates of leading banks for
deposits of that currency); or
(c) if on such date as is referred to in paragraph (b) the offered
rates for the relevant period of fewer than two leading banks
are so displayed, the arithmetic mean (rounded upwards, if
necessary, to five decimal places) of such rates quoted to the
Agent by each of the Reference Xxxxx at the request of the
Agent;
"Licences" means the Belgian Licences, the Austrian Licences, the
Norwegian Licences and the Hungarian Licences or any successor licence
to such Licences granted pursuant to any Telecommunications and Cable
Law;
"Loan" means the aggregate principal amount owing to the Banks under
this Agreement at any relevant time (including, for the avoidance of
doubt, the aggregate principal amount of all Telekabel Notes which are
then issued and outstanding);
"Majority Banks" means at any relevant time Banks (a) the aggregate of
whose Contributions exceeds 662/3 per cent of the Drawings or (b) (if
no principal amounts are outstanding under this Agreement) the
aggregate of whose Commitments exceeds 662/3 per cent of the Total
Commitments;
"Management Base Case" means the management base case financial and
operational projections for the Restricted Group produced by UPCF in
the form included in the Information Memorandum;
"Management Fees" means any management, consultancy or similar fees
payable by any member of the Restricted Group to any Relevant Person;
"Margin" means the rate per annum calculated in accordance with clause
5;
"Material Adverse Effect" means a material adverse effect on the
ability of any Obligor to perform all or any of its material
obligations under this Agreement or any Security Document;
"Material Subsidiary" means any Subsidiary of an Obligor which is not
an Immaterial Subsidiary;
"month" or "months" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (i) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it
shall end on the last Banking Day in such later calendar month and (ii)
if such numerically corresponding day is not a Banking Day, the period
shall end on the next following Banking Day in such later calendar
month but if there is no such Banking Day it shall end on the preceding
Banking Day and "monthly" shall be construed accordingly;
"Monthly Information" means the monthly information of the Restricted
Group to be delivered to the Agent pursuant to clause 11.1(h) in the
form of schedule 10 or containing information of the same type as is
required by such form;
"National Currency Unit" means, in relation to a Participating Member
State, the legacy national currency unit of that Participating Member
State;
"Necessary Authorisations" means all approvals, authorisations and
licences (other than the Licences to the extent legally required) from,
all rights granted by and all filings, registrations and agreements
with any person including, without limitation, any government or other
regulatory authority, in each case from time to time necessary in order
to enable each member of the Restricted Group to carry on such business
as may be permitted by the terms of this Agreement and which is carried
on by it at the relevant time;
"Net Derivatives Liability" means, at any time, the net liability (if
any) at such time of the Restricted Group taken as a whole or UPC (as
the case may be) in respect of Derivatives Contracts determined by
reference to the amounts (as determined by the Agent), which would be
payable or receivable by the Restricted Group or UPC (as the case may
be) if all Derivatives Contracts to which any member of the Restricted
9
Group or UPC (as the case may be) was a party at such time were
terminated at such time and replaced by the obligation to make a
payment reflecting the economic burden or value to the relevant member
of the Restricted Group or UPC (as the case may be) of the payment
flows under those Derivatives Contracts remaining at the time of
termination;
"Net Income" means, in respect of any period and for any period, the
net profit after Taxes and (in the case of the Restricted Group only)
Management Fees, in the case of the Restricted Group arising out of the
Permitted Business for such period as determined in accordance with
GAAP and (in the case of the Restricted Group) as shown in the annual
financial statements or Quarterly Management Accounts in respect of
such period prepared and delivered to the Agent pursuant to clause
11.1(f) or 11.1(g);
"Net Working Capital" means, at any time, the aggregate of the Current
Assets of the Restricted Group at such time less the aggregate of the
Current Liabilities of the Restricted Group at such time;
"New Services" means (i) telephony including internet and local loop
telephony and (ii) internet and/or data services, including
arrangements entered into by any member of the Restricted Group with
chello broadband N.V. and/or Priority Telecom N.V.;
"Norwegian Asset Security" means each of the Encumbrances set out in
schedule 12;
"Norwegian Licences" means those licences or registrations specified
as Norwegian Licences in schedule 7;
"Obligors" means the Borrowers and the Guarantors;
"Optional Currency" means any currency other than euro (and each
National Currency Unit) which is freely transferable, freely
convertible into euro and dealt in on the London Interbank Market;
"Original Guarantors" means UPCF and those Subsidiaries of UPC or, as
the case may be, a Borrower whose names, country of incorporation and
principal place of business are set out in part B of schedule 1
provided that if any of such Subsidiaries are merged into another
person in compliance with the terms of this Agreement and the surviving
entity is not an Original Guarantor, "Original Guarantors" shall no
longer include such Subsidiary;
"Participating Member State" means a member state of the European Union
that has adopted the single currency in accordance with the Treaty;
"Permitted Acquisitions" means:
(a) any acquisitions of assets or services made in the ordinary course of
business;
(b) any acquisitions within the Restructuring;
(c) any acquisitions of the share capital of, or assets and
liabilities of, a member of the Restricted Group by an Obligor
as part of the solvent reorganisation of the Restricted Group;
and
(d) the formation of a new direct or indirect Subsidiary of CNA
for the purposes of providing telephony services in Austria;
"Permitted Borrowings" means, without duplication:
(a) any Borrowed Money arising hereunder or under the Security Documents;
(b) until the date of the first Drawing hereunder, any Borrowed Money under the
Existing UPC Senior Facility;
(c) any Borrowed Money approved in writing by the Agent (acting on the
instructions of the Majority Xxxxx);
(d) any Borrowed Money incurred through a Subordinated Shareholder Loan made to
any Obligor;
(e) Borrowed Money incurred in connection with the Interest Rate
Hedging Arrangements and any other hedging arrangements
permitted by clause 11.2(j);
(f) any Borrowed Money of any member of the Restricted Group
arising as a result of the issue by it or a financial
institution of a surety or performance bond in relation to the
performance by such member of the Restricted Group of its
obligations under contracts entered into in the ordinary
course of its business (other than for the purpose of raising
finance);
10
(g) any deposits or prepayments constituting Borrowed Money
received by any member of the Restricted Group from a customer
or subscriber for its services;
(h) any Borrowed Money or guarantees permitted pursuant to clause 11.2(e);
(i) any Borrowed Money owing by any member of the Restricted Group
being Management Fees or management, consultancy or similar
fees payable to another member of the Restricted Group in
respect of which payment has been deferred;
(j) any Borrowed Money being Permitted Payments in respect of which payment has
been deferred;
(k) Permitted Third Party Subordinated Debt;
(l) any Borrowed Money of a company which is acquired by a member of the
Restricted Group after the date hereof as a Permitted European
Acquisition where such Borrowed Money existed at the date of
completion of such Permitted European Acquisition provided that (A)
such Borrowed Money was not incurred in contemplation of the
acquisition of such company, (B) the amount of such Borrowed Money is
not increased beyond the amount in existence at the date of completion
of the acquisition and (C) such Borrowed Money is discharged within
six months (or, in the case of Borrowed Money of Stjarn not exceeding
Euro 50,000,000, within twelve months) of the date of completion of
such Permitted European Acquisition;
(m) any Borrowed Money made available to Telekabel N.V. by The
First Hungary Fund in an amount not exceeding Euro 10,000,000
in aggregate;
(n) an unsecured loan of 100,000,000 Austria Schillings made by
Bank Austria to Telekabel Wien or any unsecured replacement of
such loan of up to the same amount;
(o) any Borrowed Money in addition to the Borrowed Money falling
within paragraphs (a) to (n) above (but including the Borrowed
Money referred to in paragraph (n ) above) and not exceeding
at any time more than Euro 55,000,000 in aggregate (or its
equivalent);
"Permitted Business" means the carrying on of the Business in
Europe (other than France and the Netherlands);
"Permitted Disposal" means:
(i) transfers, sales or disposals on arms' length commercial terms in the
ordinary course of business;
(ii) any disposals within the Restructuring;
(iii) transfers, sales or disposals or the payment of management,
consultancy or similar fees (a) by an Obligor to another
Obligor or (b) from a member of the Restricted Group (which is
not an Obligor) to any member of the Restricted Group or (c)
from an Obligor to another member of the Restricted Group
(which is not an Obligor) provided that (in the case of (c)
only) such member of the Restricted Group becomes an Acceding
Guarantor on, or prior to, such disposal in accordance with
clause 9.17;
(iv) the application of cash in payments which are not otherwise
restricted by the terms of this Agreement and the Security
Documents including, for the avoidance of doubt, Permitted
Acquisitions, Permitted European Acquisitions and Permitted
Payments, but excluding payments in respect of Permitted Third
Party Subordinated Debt;
(v) the payment of interest on Permitted Third Party Subordinated
Debt provided that (a) at the time of payment the applicable
ratio for the purpose of clause 12.1(b) is 4.5:1 (or less) and
(b) no Default has occurred and is continuing or would result
from such payment;
(vi) transfers, sales or disposals of any interest in an
Unrestricted Subsidiary;
(vii) the sale or disposal of property or other assets on bona fide
arm's length commercial terms in the ordinary course of
business in consideration for, or to the extent that the net
proceeds of sale are applied within 120 days after such sale
in the acquisition of, assets of a similar nature and
approximately equal value to be used in the Permitted
Business;
(viii) disposals of assets on bona fide arm's length commercial terms
where such assets are obsolete or no longer required for the
purposes of the Permitted Business;
11
(ix) disposals made in connection with Approved Stock Options; and
(x)(A) disposals of assets (in addition to those described in
paragraph (i) to (ix) above), comprising or contributing in
aggregate a percentage value (as determined in accordance
with clause 6.6(c)) of less than 10 per cent. (adjusted in
accordance with clause 6.6(h)) of the total assets, revenues
or EBITDA of the Restricted Group provided that no Default
has occurred and is continuing or would occur as a result of
such disposal; and
(B) disposals of assets comprising or contributing in aggregate
a percentage value (as determined in accordance with clause
6.6(c)) of 10 per cent. or more of the total assets,
revenues or EBITDA of the Restricted Group (taken as a
whole) provided that (a) prior to the relevant disposal UPCF
has delivered to the Agent financial projections based on
assumptions which are no more aggressive than those used in
the preparation of the Information Memorandum which
demonstrate that the Restricted Group will be in compliance
with the undertakings set out in clause 12.1 for the period
commencing on completion of the relevant disposal and ending
on the Final Repayment Date, (b) no Default has occurred and
is continuing or would occur as a result of such disposal
and (c) the provisions of clause 6.6(c) have been complied
with;
"Permitted Encumbrances" means:
(a) any Encumbrance arising hereunder or under any Security Document;
(b) until (i) the date of the first Drawing hereunder (1) the
Austrian Security and (2) those Encumbrances referred to in
paragraph (c) of part II of schedule 3 and (ii) 31 October
1999, the Encumbrances constituting the Norwegian Asset
Security;
(c) any liens arising in the ordinary course of business by way of
contract which secure Indebtedness under any agreement for the
supply of goods or services in respect of which payment is not
deferred for more than 180 days;
(d) any Encumbrance imposed by any taxation or governmental
authority in respect of amounts which are being contested in
good faith and not yet payable and for which adequate reserves
have been set aside in the books of the Restricted Group in
respect of the same in accordance with GAAP;
(e) any Encumbrance approved in writing by the Agent (acting on the
instructions of the Majority Banks);
(f) any Encumbrance arising from any finance leases constituting
Permitted Borrowings provided that the maximum aggregate value
of assets subject to any such Encumbrances outstanding at any
time shall not exceed Euro 15,000,000;
(g) any Encumbrance in favour of any bank incurred in relation to any cash
management arrangements;
(h) rights of set-off arising in the normal course of business;
(i) any Encumbrance securing any Borrowed Money referred to in
paragraph (l) of the definition of Permitted Borrowings
provided that (A) such Encumbrance was not created in
contemplation of the acquisition of such asset or company, (B)
the debt secured by such Encumbrance is not increased beyond
that secured at the date the asset or company in question is
acquired and such Encumbrance secures only that debt and (C)
such Encumbrance is discharged within six months (or, in the
case of an Encumbrance entered into by Stjarn within 12
months) of completion of the relevant Permitted European
Acquisition;
(j) any Encumbrance not falling within paragraphs (a) to (i) above
and securing Indebtedness in aggregate not exceeding
Euro 20,000,000 (or its equivalent);
"Permitted European Acquisition" means the acquisition of a company or
all or any substantial part of the assets, property or business of any
other person or any assets that constitute a division or operating unit
of the business of any other person which operates and is situated in
Western Europe (other than France and The Netherlands) and/or in
Eastern Europe and the business of which is in the nature of the
business carried on by the Restricted Group at the date of this
Agreement provided that:
(a) the aggregate consideration (in cash or otherwise and whether or not
deferred) paid or payable by the Restricted Group in respect of all such
acquisitions is not more than Euro 400,000,000 (or its equivalent) provided
that (i) for the avoidance of doubt, any consideration funded by way of a
cash subscription for additional equity in UPCF by UPC or by way of an
additional cash Subordinated Shareholder Loan in relation to any such
acquisition shall not be taken into
12
account for the purpose of this paragraph (a) except to the extent of
amounts repaid in respect of such Subordinated Shareholder Loan and (ii)
account shall be taken of the amount of any Borrowed Money owed by any
company or business acquired pursuant to a Permitted European Acquisition
and which constitutes "Permitted Borrowings" within paragraph (l) of that
definition so that the amount of such Borrowed Money shall be deemed to be
included in the aggregate consideration paid or payable by the Restricted
Group in relation to such acquisition;
(b) prior to the completion of the relevant acquisition UPCF has delivered to
the Agent financial projections based on assumptions which are no more
aggressive than those used in the preparation of the Information Memorandum
which demonstrate that the Restricted Group will be in compliance with the
undertakings set out in clause 12.1 for the period commencing on completion
of the relevant acquisition and ending on the Final Repayment Date;
(c) UPCF will have directly or indirectly greater than 50 per cent. of the
economic interest and voting interest in the acquired company or business
unless, if UPCF will have, directly or indirectly, 50 per cent. or less of
the economic interest and voting interest in the acquired company or
business, such acquisition is funded by means of a cash subscription for
additional equity in UPCF or an additional cash Subordinated Shareholder
Loan. If UPCF subsequently acquires more than 50 per cent. of the economic
interest and voting interest in any such company, (i) a Subordinated
Shareholder Loan which funded such acquisition may be repaid but the amount
of any such repayment shall be taken into account in calculating the
aggregate consideration paid in respect of such acquisition and/or (ii) any
additional equity subscribed to fund such acquisition may be redeemed and
any charge or pledge over such equity shall be released by the Security
Agent on such redemption at the expense of and following receipt of
reasonable written notice from UPCF but the amount of such additional
equity subscription shall be taken into account in calculating the
aggregate consideration paid in respect of such acquisition; and
(d) (in the case of the acquisition of a company or business which operates in
Eastern Europe) the acquisition must (i) have been notified to the Agent in
writing on or prior to the date of this Agreement or (ii) be of a company
or business having cable subscribers in Eastern Europe which when
aggregated with the cable subscribers in Eastern Europe at the date of
acquisition of companies or businesses acquired after the date of this
Agreement pursuant to this paragraph (d)(ii) do not exceed 150,000 or (iii)
be of the minority interest existing at the date of this Agreement in the
relevant company or business;
"Permitted Management Fees" means Management Fees (i) which are paid on
bona fide arms length terms in the ordinary course of business to a
Relevant Person or (ii) of up to Euro 5,000,000 in any financial year
provided that, at the time of payment, no Default is subsisting or
would occur as a result of such payment;
"Permitted Payments" means any payments or transfers of assets:
(a) to any Relevant Person in relation to transactions carried out
on bona fide arm's length commercial terms in the ordinary
course of business or on terms which are fair and reasonable
and in the best interests of the Restricted Group;
(b) by way of payment of Permitted Management Fees;
(c) by way of the repayment of the principal of the
Euro 50,000,000 note dated 17 February 1999 outstanding from
UPCF to UPC (as contributed by Belmarken to, and assumed by,
UPCF pursuant to the Restructuring) provided that no Default
has occurred and is continuing or would occur as a result of
such payment;
(d) to finance the payment by UPC of interest on the High Yield
Notes provided that (i) the then applicable ratio for the
purpose of clause 12.1(b) is 4.5:1 (or less) and (ii) no
Default has occurred and is continuing or would occur as a
result of such payment;
(e) by way of the repayment of the principal and interest of the
loan of up to US$200,000,000 made by UPC to UPCF to fund the
acquisition by Belmarken of Bratislava/KablePlus (as
contributed by Belmarken to, and assumed by, UPCF pursuant to
the Restructuring) provided that no Default has occurred and
is continuing or would occur as a result of such payment;
(f) by way of payment of interest on Subordinated Shareholder
Loans provided that (i) the then applicable ratio for the
purpose of clause 12.1(b) is 4.5:1 (or less) and (ii) no
Default has occurred and is continuing or would occur as a
result of such payment;
13
(g) by way of distributions paid by UPCF in respect of its share
capital to UPC, or by way of repayment by UPCF to UPC in
respect of a Subordinated Shareholder Loan but only to the
extent that UPCF has either (i) received a cash distribution
from an Unrestricted Subsidiary of at least an equal amount to
such distribution or (ii) the payment is made from the
proceeds of sale of a disposal by UPCF permitted by paragraph
(vi) of the definition of "Permitted Disposals";
(h) by way of payment to any person or for any purpose to the
extent that any such payment would be permitted to be made to
UPC pursuant to paragraphs (c), (d), (e) or (f) above and
provided that any such payment shall automatically reduce the
liability to UPC under the relevant obligation referred to in
paragraph (c), (d), (e) or (f) above to the extent of the
amount paid; and
(i) by way of the repayment of any Subordinated Shareholder Loan
made by UPC or the redemption of equity share capital in UPCF
subscribed for by UPC to finance a Permitted European
Acquisition provided that (i) the repayment of such
Subordinated Shareholder Loan or the redemption of such equity
share capital would not cause the limit of Euro 400,000,000
referred to in paragraph (a) of the definition of "Permitted
European Acquisition" to be exceeded and (ii) no Default has
occurred and is continuing or would occur as a result of such
payment;
Provided further that, in the case of (c), (d), (e), (f), (h) and (i)
prior to making the relevant payment the Restricted Group is in
compliance with the undertakings set out in clause 12.1 and will be in
compliance with the undertakings set out in clause 12.1 on the next
Quarter Day following the making of such payment;
"Permitted Third Party Subordinated Debt" means any Borrowed Money
owing by a member of the Restricted Group to a creditor (not being a
Relevant Person) where (i) such creditor has subordinated its right to
receive payments in respect of such Borrowed Money to monies
outstanding under the Finance Documents on terms reasonably
satisfactory to the Agent and (ii) the terms of such Borrowed Money are
that (a) no principal of such Borrowed Money is payable during the
Finance Period and (b) no interest or any other sum is payable in
respect of such Borrowed Money during the Finance Period unless (in the
case of (b) only) the then applicable ratio for the purposes of 12.1(b)
is 4.5:1 (or less) and no Default has occurred and is continuing or
would occur as a result of such payment;
"Pledges of Shareholder Loans" means the Relevant Person Pledge of
Shareholder Loans and the Borrower Pledge of Shareholder Loans and such
other assignment or pledge of shareholder loans as may be executed in
favour of the Security Agent pursuant to the terms of this Agreement
from time to time;
"Principal Agreements" means the Interconnect Agreements and the
Shareholder Agreements as from time to time amended, varied, restated
or replaced together with any successor agreement, in each case in a
manner that does not constitute an Event of Default under clause
13.1(r);
"Pro-Forma Senior Debt Service" means the aggregate of (i) the total
amount of interest and any other charges paid in respect of the
Borrowed Money of the Restricted Group in respect of the twelve months
immediately preceding the date on which the relevant calculation under
this Agreement falls to be made and (ii) the principal amount of any
scheduled repayment of any Borrowed Money of the Restricted Group due
to be made during the twelve months immediately following the date on
which the relevant calculation falls to be made (including with respect
to Borrowed Money of the Restricted Group under revolving credit
facilities, an amount equal to the excess, if any, of (i) the aggregate
outstanding principal balance of all such Borrowed Money at the first
day of such 12 month period, minus (ii) the aggregate amount of all
commitments under such revolving credit facilities which, as of such
day, are scheduled to remain in effect as of the last day of such 12
month period);
"Qualifying Bank" means a person, being a bank or financial institution
(whether incorporated in the United Kingdom or elsewhere), which is
eligible to have payments made to it by the Borrowers under this
Agreement without any deduction or withholding in respect of Taxes
either (i) by virtue of a double taxation treaty (assuming for this
purpose only that a direction or consent such as is referred to in
clause 8.8 has been given), or (ii) by virtue of the fact that no such
deduction or withholding is imposed in the jurisdiction to which the
Obligors are subject;
14
"Quarter Day" means 31st March, 30th June, 30th September and 31st
December in any year;
"Quarterly Management Accounts" means the quarterly consolidated
management accounts of the Restricted Group to be delivered (or which
may be delivered) to the Agent pursuant to clause 11.1(g) substantially
in the form set out in schedule 10 or containing information of the
same type as is required by such form;
"Quarterly Period" means each period of approximately three months
commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
"Quotation Date" means, in relation to EURIBOR and National Currency
Units and any period for which EURIBOR is to be determined, the date
which is two Banking Days prior to the first day of the relevant period
and, in relation to any Optional Currency and any period for which
LIBOR is to be determined, the date on which quotations would
customarily be provided by leading banks in the London Interbank Market
for deposits in the relevant Optional Currency for delivery on the
first day of the relevant period;
"Radio Public" means Radio Public S.A., a company incorporated in
Belgium and having its registered office at 000, xxxxxx Xxxxxxx, 0000
Xxxxxxxx, Xxxxxxx, registered in the register of commerce of Brussels
under no. 69,463 and in the register of commerce of Leuven under no.
44697;
"Reduction Period" means the period from 30 June 2002 until the Final
Repayment Date;
"Reference Banks" means the principal London offices of CIBC World
Markets plc, The Royal Bank of Scotland plc and The Toronto-Dominion
Bank and/or any other Bank appointed as such pursuant to clause 18.14;
"Relevant Jurisdiction" means each jurisdiction in which a member of
the Restricted Group is incorporated or formed or in which such member
of the Restricted Group has its principal place of business or owns any
material assets;
"Relevant Person" means UGC, any company (not being a member of the
Restricted Group) which is a Subsidiary of, or an Associated Company
of, UGC (other than Associated Companies of UGC which are its
Associated Companies by virtue of controlling UGC or owning
beneficially and/or legally directly or indirectly 10 per cent. or more
of the equity interests in UGC);
"Relevant Person Pledge of Shareholder Loans" means the pledge and
subordination of shareholder loans entered into by any Relevant Person
in respect of its loans to any Obligor in favour of the Security Agent
in the agreed form or such other form as may be reasonably agreed by
the Security Agent (acting on the instructions of the Majority Banks)
having regard to the applicable laws in the jurisdiction in which the
relevant loan is payable;
"Relevant Substance" means any substance whatsoever (whether in a solid
or liquid form or in the form of a gas or vapour and whether alone or
in combination with any other substance) or waste which is capable of
causing harm to man or any other living organism supported by the
environment, or damaging the environment or public health or welfare;
"Restricted Group" means (i) before the completion of the
Restructuring, the Obligors and their respective Subsidiaries from time
to time together with Eurosat SRL, Kabel Net Holding AS and Kabel Net
Brno AS or (ii) on and after the Restructuring, UPCF and its
Subsidiaries from time to time, (excluding, in either case,
Unrestricted Subsidiaries);
"Restricted Payment" means, in each case whether in cash, securities,
property or otherwise, (a) any direct or indirect distribution,
dividend or other payment on account of any class of its share capital
or capital stock or other securities, (b) any transfer of assets, loan,
gift or other payment or (c) any payment of principal of, or interest
on, any loan, in the case of each of (a), (b) and (c) to a Relevant
Person;
"Restructuring" means the transfer of all or part of the share capital
of certain members of the Restricted Group (together with any
inter-company payables from such member of the Restricted Group to its
Shareholders) to another member of the Restricted Group so that the
Restricted Group is UPCF and its Subsidiaries as set out in the chart
contained in Part B of schedule 13 pursuant to the Sale and Purchase
Agreements and the entering into of the other agreements and documents
referred to or contemplated therein;
"Revolving Drawing" means (i) in the case of each Borrower other than
Telekabel Wien, each borrowing by way of an advance under Facility A at
any time during the Facility A Revolving Period or, as the context
requires, the principal amount of that borrowing outstanding at any
15
relevant time and/or (ii) in the case of Telekabel Wien, each borrowing
by Telekabel Wien against the issue by Telekabel Wien of a Telekabel
Note under Facility A, or, as the context requires, the principal
amount of such Telekabel Note outstanding at any relevant time;
"Revolving Period" means, in relation to a Revolving Drawing, the
period for which such Revolving Drawing is, or is to be, made, as
specified in the Drawdown Notice for such Revolving Drawing, or as
otherwise determined in accordance with the provisions hereof;
"Revolving Period End Date" means, in relation to a Revolving Drawing,
the last day of the Revolving Period of such Revolving Drawing;
"RP Share Security" means the share pledge given to the Security Agent
by UPC in respect of its shareholding in Radio Public in the agreed
form;
"Sale and Purchase Agreements" means (i) the sale and purchase
agreement to be entered into between Belmarken, UPCF, Stipdon and UPC
Romania Holding B.V. in respect of, inter alia, the sale of Belmarken's
shareholding in Stipdon to UPCF, in the agreed form, (ii) the sale and
purchase agreement to be entered into between UPC, Belmarken, UPCF and
UPC Romania Holding B.V. in respect of, inter alia, the sale of Radio
Public, Xxxxx and Telekabel Wien and (iii) the sale and purchase
agreement to be entered into between UPC and UPC Czech Holding B.V. in
respect of Kabel Net Holding AS and Kabel Net Brno AS;
"Secured Parties" means the Finance Parties, the High Yield Hedging
Banks and the Interest Rate Hedging Banks;
"Security Agent" means The Toronto-Dominion Bank of Triton Court, 00/00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX or such other person as may be
appointed as Security Agent pursuant to the Security Deed;
"Security Deed" means the Security Deed entered into or to be entered
into between the Secured Parties, each Subordinated Creditor, each
Security Provider and each Obligor;
"Security Documents" means the Pledges of Shareholder Loans, the Share
Securities and the Security Deed and all other mortgages, charges,
pledges, guarantees, inter-creditor agreements or deeds and other
instruments from time to time entered into in favour of the Secured
Parties (or any of them) by way of guarantee or other assurance and/or
security for or (in the case of inter-creditor agreements) otherwise in
relation to amounts owing to the Secured Parties (or any of them) in
respect of any Indebtedness of the Obligors under the Finance
Documents;
"Security Provider" has the meaning given to it in the Security Deed;
"Security Provider's Deed of Accession" has the meaning given to it in
the Security Deed;
"Senior Debt" means the aggregate principal amount of all Borrowed
Money of the Restricted Group other than (i) Subordinated Shareholder
Loans, (ii) loans from a member of the Restricted Group to another
member of the Restricted Group which are permitted by the terms of this
Agreement and (iii) any Permitted Third Party Subordinated Debt;
"Senior Debt Cash Interest Charges" means, in relation to any period,
the total amount of all interest, fees and commissions paid in respect
of the Senior Debt, Permitted Third Party Subordinated Debt and
Subordinated Shareholder Loans during such period (having taken into
account the effect of any Interest Rate Hedging Arrangements) together
with the amount of any interest, fees and commissions paid in respect
of the High Yield Notes during such period to the extent that the same
are funded by Permitted Payments except (in each case other than
payments in respect of Senior Debt) to the extent that such payments
are funded by distributions made by Unrestricted Subsidiaries to UPCF;
"Share Securities" means the Borrower Share Securities, the RP Share
Security, the CNA Share Security, the Stipdon Share Security, the
Telekabel Hungary Share Security and such other pledges/charges over
shares in any of the Obligors as may be executed in favour of the
Security Agent from time to time as security for the obligations of the
Obligors under this Agreement pursuant to clause 9.17 and, for the
avoidance of doubt, shall not include any pledge or charge over the
shares in TeleKabel Hungary not held by Stipdon;
"Shareholders Agreements" means the Austrian Agreements and the
Hungarian Agreement to the extent that they constitute agreements among
the shareholders;
"Six Month Period" means each period of two consecutive Quarterly
Periods ending on a Quarter Day;
16
"Stipdon" means Stipdon Investments B.V. a private limited liability
company incorporated under the laws of The Netherlands with its
registered office at Xxxxxxxxx Xxxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx;
"Stipdon Share Security" means the share pledge given to the Security
Agent by UPCF in respect of its shareholding in Stipdon in the agreed
form;
"Subordinated Creditor" means any Relevant Person who has, at any
relevant time, entered into a Relevant Person Pledge of Shareholder
Loans and the Security Deed or a Security Provider's Deed of Accession;
"Subordinated Shareholder Loan" means any Borrowed Money of any member
of the Restricted Group owed to a Subordinated Creditor;
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
ownership of more than 50 per cent. of the economic and/or voting share
capital (or equivalent right of ownership of such company or entity);
"Target Day" means a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System (TARGET) is
operating;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of a similar nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"Telecommunications and Cable Laws" means all laws, statutes,
regulations and judgments relating to telecommunications, cable
television and data services applicable to any member of the Restricted
Group and/or the business carried on by any member of the Restricted
Group in any Relevant Jurisdiction;
"Telekabel Austrian Entities" means each of:
(a) Telekabel Wien;
(b) Telekabel-Fernsehnetz Region Baden Betriebsgesellschaft m.b.H,
a company incorporated in Austria with its corporate seat at
A-2514 Traiskirchen, Xxxxxxxxxx 00, and with registration
number FN 111149f;
(c) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Betriebsgesellschaft m.b.H, a company incorporated in Austria
with its corporate seat at X-0000 Xxxxxx Xxxxxxxx,
Xxxxxxxxxxxx Xxxxxxx 00, and with registration number FN
114170y;
(d) Telekabel Graz Gesellschaft m.b.H, a company incorporated in
Austria with its corporate seat at X-0000 Xxxx, Xxxxxxxxxxxxxx
00, and with registration number FN 55555z;
(e) Telekabel Klagenfurt Gesellschaft m.b.H, a company
incorporated in Austria, with its corporate seat at X-0000
Xxxxxxxxxx, Xxxxxxxxx Xxxxxxx 000 and with registration number
FN 99365a; and
(f) CNA;
"TeleKabel Hungary" means TeleKabel Hungary N.V., a public limited
liability company incorporated under the laws of The Netherlands with
its registered office at Xxxxxxxx Xxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx;
"TeleKabel Hungary Share Security" means the share pledge given to the
Security Agent by Xxxxxxx in respect of its 79.25% shareholding in
TeleKabel Hungary in the agreed form and, for the avoidance of doubt,
the share pledge shall not be in respect of the existing shareholding
in TeleKabel Hungary owned by The First Hungary Fund (or its successors
and assigns not being a Relevant Person or a member of the Restricted
Group);
"Telekabel Notes" means the bearer bonds to be issued by Telekabel Wien
in respect of each Drawing made to Telekabel Wien, in the form set out
in schedule 11;
"Telekabel Wien" means Telekabel Wien GmbH a company incorporated under
the laws of Austria with its corporate seat at Xxxxxxxxxxx 000, 0000
Xxxx, Xxxxxxx and with registration number FN 84116a;
17
"Term Drawing" means (i) in the case of each Borrower other than
Telekabel Wien any borrowing by way of an advance under Facility B or,
as the context requires, the principal amount of that borrowing
outstanding at any relevant time and/or (ii) in the case of Telekabel
Wien each borrowing by Telekabel Wien against the issue by Telekabel
Wien of a Telekabel Note under Facility B or, as the context requires,
the principal amount of such Telekabel Note outstanding at any relevant
time;
"Term Repayment Date" means each date on which Facility B Outstandings
are to be repaid pursuant to clause 6.3;
"Total Cash Paying Debt" means Senior Debt to the extent that interest
is paid or payable in respect thereof and that part of the High Yield
Notes the proceeds of which have been on-lent to the Restricted Group;
"Total Commitments" means at any relevant time the aggregate of all the
Facility A Total Commitments and the Facility B Total Commitments at
such time;
"Total Outstandings" means the aggregate of the Facility A
Outstandings and the Facility B Outstanding;
"Transaction Documents" means this Agreement and the Security
Documents;
"Transferee" has the meaning given to it in clause 17.4;
"Transfer Certificate" means a certificate substantially in the terms
of schedule 5;
"Treaty" means the Treaty establishing the European Economic Community,
being the Treaty of Rome of 25 March 1957 as amended by the Single
European Act 1986 and the Maastricht Treaty (which was signed on 7
February 1992 and came into force on 1 November 1993) as amended,
varied or supplemented from time to time;
"UGC" means United GlobalCom, Inc. a corporation incorporated in the
State of Delaware, United States of America and having its principal
place of business at 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000 U.S.A.;
"Unrestricted Subsidiaries" means any Subsidiaries of UPCF, the
acquisition cost of which and whose ongoing funding requirements are
not funded directly or indirectly by any member of the Restricted Group
by way of Drawings under this Agreement;
"UPC" means United Pan-Europe Communications N.V., a public limited
liability company incorporated under the laws of The Netherlands with
its registered office at Amsterdam and its business office at Xxxxxxxx
Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx;
"UPCF" means UPC Facility B.V., a private limited liability company
incorporated under the laws of The Netherlands with its registered
office at Amsterdam and its business office at Xxxxxxxx Xxxxxxxxxxx
000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx;
"UPC Group" means UPC and its Subsidiaries;
"Western Europe" means the countries that currently comprise the
European Community, Scandinavia, Luxembourg and Switzerland;
"Year 2000 Issue" means the failure of computer software, hardware and
firmware systems and equipment containing embedded microchips to
properly receive, transmit, process, manipulate, store, retrieve,
re-transmit or in any other way utilise data and information due to the
occurrence of the year 2000 or the inclusion of dates on or after 1
January, 2000.
1.3 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
(b) references to (or to any specified provision of) this
Agreement or any other document shall be construed as
references to this Agreement, that provision or that document
as in force for the time being and as from time to time
amended in accordance with its terms, or, as the case may be,
18
with the agreement of the relevant parties and (where such
consent is, by the terms of this Agreement or the relevant
document, required to be obtained as a condition to such
amendment being permitted) the prior written consent of the
Agent, all of the Banks or the Majority Banks (as the case may
be);
(c) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law but, if not having the
force of law, only if compliance therewith is in accordance
with the general practice of the relevant persons to whom it
is intended to apply or, in the case of clause 15.2 only, the
relevant Bank or its holding company) of any agency,
authority, central bank or government department or any
self-regulatory or other national or supra-national authority;
(d) words importing the plural shall include the singular and vice versa;
(e) references to a time of day are to London time unless otherwise
specified;
(f) references to a "person" shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any of its
agencies;
(g) references to "assets" include all or part of any business,
undertaking, real property, personal property, uncalled
capital and any rights (whether actual or contingent, present
or future) to receive, or require delivery of, any of the
foregoing;
(h) references to a "guarantee" include references to an indemnity
or other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "guaranteed" shall be construed accordingly;
(i) references to the "equivalent" of an amount specified in a
particular currency (the "specified currency amount") shall be
construed as a reference to the amount of the other relevant
currency which can be purchased with the specified currency
amount in the London foreign exchange market at or about 11
a.m. on the day on which the calculation falls to be made for
spot delivery as determined by the Agent in accordance with
its customary practices;
(j) references to the "agreed form" means, in relation to any
document, the form of such document as shall have been agreed
between the Borrowers and the Agent or the Security Agent, as
the case may be (acting for and on behalf of all of the
Banks);
(k) references to any enactment shall be deemed to include
references to such enactment as re-enacted, amended or
extended; and
(l) references to this "Agreement" include all Telekabel Notes
issued under this Agreement and references to sums payable
under this Agreement include sums payable under all Telekabel
Notes issued under this Agreement.
1.5 Majority Banks
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all the
Banks shall have received prior notice of the matter on which such
opinion, consent, request or instructions are required to be obtained
and the relevant majority of Banks shall have given or issued such
opinion, consent, request or instructions but so that (as between the
Obligors and the Banks), once informed by the Agent that such opinion,
consent, request or instructions have been given, the Obligors shall be
entitled (and bound) to assume that such notice shall have been duly
received by each Bank and that the relevant majority shall have been
obtained to constitute Majority Banks whether or not this is in fact
the case.
1.6 Agent's opinion
Where this Agreement provides for the Agent's opinion to determine
whether any matter would or is reasonably likely to have a Material
Adverse Effect the Agent shall act in accordance with the instructions
of the Majority Banks in making such determination.
19
1.7 Bank's Commitments
For the purpose of the definition of "Majority Banks" in clause 1.2 and
of clause 18.12 references to the Commitment of a Bank shall, if the
Total Commitments have, at any relevant time, been reduced to zero, be
deemed to be a reference to the Commitment of that Bank immediately
prior to such reduction to zero.
2
The Facilities
2.1 Amount
Upon and subject to the terms of this Agreement and in reliance on each
of the representations and warranties in clause 10, for the purposes
set out in clause 1.1, the Banks agree to make available to the
Borrowers:
(a) a reducing revolving credit and note issuance facility in the
principal sum of up to Euro 750,000,000 or the equivalent in Optional
Currencies; and
(b) a term loan and note issuance facility in the principal sum of
up to Euro 250,000,000 or the equivalent in Optional Currencies.
The obligation of each Bank under this Agreement shall be to contribute
that proportion of each Drawing which, as at the Drawdown Date of such
Drawing, its Commitment in respect of the relevant Facility bears to
the aggregate Commitments of all Banks in respect of that Facility. The
contribution of a Bank to a Drawing by Telekabel Wien shall be effected
by that Bank subscribing for the relevant proportion of the relevant
Telekabel Note.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
Finance Party (other than to the defaulting party) or any Obligor of
any of their respective obligations or liabilities under this Agreement
nor shall the Agent, the Security Agent, or the Joint Arrangers be
responsible for the obligations of any Bank (except for its own
obligations, if any, as a Bank) nor shall any Bank be responsible for
the obligations of any other Bank under this Agreement.
2.3 Interests several
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Majority Banks) the interests of the Secured Parties are several
and the amount due to each Secured Party is a separate and independent
debt. Each Secured Party shall have the right to protect and enforce
their respective rights arising out of this Agreement (but without
prejudice to the provisions of this Agreement relating to or requiring
action by the Majority Banks) and it shall not be necessary for any
other Secured Party to be joined as an additional party in any
proceedings for this purpose.
2.4 Telekabel Wien's interests several
For the avoidance of doubt, every obligation of Telekabel Wien under
this Agreement is several and it is acknowledged by all parties that
Telekabel Wien is not liable for any obligations of any other Obligor
under this Agreement.
2.5 Xxxxx'x interests several
Xxxxx shall have no liability under the Finance Documents in excess of
the aggregate of the amounts drawn down and utilised by Xxxxx under the
Finance Documents from time to time.
20
Conditions
3.1 Documents and evidence
The obligation of each Bank to make its Commitment available shall be
subject to the condition that the Agent, or its duly authorised
representative, shall have received, not later than three Banking Days
before the day on which the first Drawing is to be made, the documents
and evidence specified in part I of schedule 3 in form and substance
(subject to clause 3.3) satisfactory to the Agent. UPCF undertakes to
deliver or procure the delivery to the Agent, or its duly authorised
representative on the Banking Day on which the first Drawing is made,
the documents and evidence specified in part II of schedule 3 in form
and substance (subject to clause 3.3) satisfactory to the Agent.
3.2 General conditions precedent
The obligation of each Bank to contribute to any Drawing is subject to
the further conditions that at the date of each Drawdown Notice and on
each Drawdown Date:
(a) the representations and warranties set out in clauses 10.1 and
10.2 to be repeated in accordance with clause 10.4 are true
and correct on and as of each such date as if each were made
with respect to the facts and circumstances existing at such
date; and
(b) no Default shall have occurred and be continuing or would result from the
making of such Drawing.
However in the case of a Revolving Drawing which would not, if drawn,
cause the aggregate Euro Amount of Revolving Drawings to exceed the
aggregate Euro Amount of Revolving Drawings outstanding immediately
prior to the making of that Revolving Drawing (after taking into
account of any Revolving Drawing due or due to be made or repaid on the
Drawdown Date of such Revolving Drawing) clause 3.2 shall not apply.
Nothing in this clause 3.2 shall be construed as constituting a waiver
of any right of the Banks (including, without limitation, their rights
under clause 13.2) arising from any Event of Default which shall have
occurred and be outstanding at the time of the drawing of the relevant
Drawing.
3.3 Waiver of conditions precedent
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of all of the Banks in respect of the first Drawing and on
the instructions of the Majority Banks with respect to any other
Drawing and the conditions subsequent specified in clause 3.6 without
prejudicing the right of the Agent acting on such instructions to
require fulfilment of such conditions in whole or in part in respect of
any other Drawing.
3.4 Notification
The Agent shall notify the Banks and UPCF promptly after receipt by it
of the documents and evidence referred to in clause 3.1 in form and
substance reasonably satisfactory to it.
3.5 Existing UPC Security
UPCF undertakes to procure that the Encumbrances referred to in
paragraph (b)(i) of the definition of Permitted Encumbrances are
discharged before or contemporaneously with the making of the Term
Drawings required to be made pursuant to clause 4.11.
3.6 Conditions subsequent
UPCF undertakes to procure that:
(a) an entry is made within two Banking Days of the first Drawing
under this Agreement in the share register of Radio Public in
respect of the RP Share Security, signed by UPC and that a
copy, certified as a true copy by an Authorised Officer of
UPCF, is delivered to the Agent as soon as practicable
thereafter;
(b) an entry is made within two Banking Days of the first Drawing
under this Agreement in the shareholders registers
("aksjeeierbok") of Xxxxx xxxxxxxxxx that the pledge in
respect of the shares of Xxxxx given by UPC in favour of the
Security Agent has been duly noted therein and that copies,
certified as true copies by an Authorised Officer of UPCF, are
delivered to the Agent as soon as practicable thereafter; and
(c) as soon as practicable after the date of the first Drawing
under this Agreement and in any event by no later than 31
October 1999, the Norwegian Asset Security is released.
21
Drawings
4.1 Maximum Outstandings
(a) Period 1
Prior to (and including) 30th June, 2001, the amount of Senior
Debt shall not exceed 5.75 times Adjusted Annualised
Consolidated EBITDA (determined by reference to the Six Month
Period ending on the most recent Quarter Day in respect of
which Quarterly Management Accounts have been delivered to the
Agent under this Agreement) and no Drawings shall be made if,
following the making of such Drawing, such limit would be
exceeded.
(b) Period 2
On each day falling within the period set out in column (I)
below, the amount of Senior Debt shall not exceed the multiple
of Annualised Consolidated EBITDA (determined by reference to
the Six Month Period ending on the most recent Quarter Day in
respect of which Quarterly Management Accounts have been
delivered to the Agent under this Agreement) set out against
such period in column (II) below, and no Drawings shall be
made if, following the making of such Drawing, such limit
would be exceeded:
(I) (II)
Period Multiple of Annualised
Consolidated EBITDA
from (and including) 1st July, 2001 to (and 5.0
including) 31st March, 2002
from (and including) 1st April, 2002 to (and 4.5
including) 30th September, 2002
from (and including) 1st October, 2002 to (and 4.0
including) 31st March, 2003
from (and including) 1st April, 2003 to (and 3.5
including) 31st December, 2003
from (and including) 1st January, 2004 and 3.0
thereafter
(c) The aggregate principal amount of Drawings outstanding under the
Facilities shall not at any time exceed the Facilities' Limit or its
equivalent in Optional Currencies and no Drawing shall be made under
the Agreement if, on the date of such Drawing, the Euro Amount of the
Total Outstandings would exceed such limit. The aggregate Euro Amount
of Drawings outstanding under Facility A shall not at any time exceed
the Facility A Limit and no Drawing shall be made under Facility A if,
on the date of such Drawing, the Facility A Outstandings would exceed
such limit. The aggregate Euro Amount of Drawings outstanding under
Facility B shall not at any time exceed the Facility B Limit and no
Drawing shall be made under Facility B if, on the date of such Drawing
the Facility B Outstandings would exceed such limit.
4.2 Drawdown
Subject to the terms and conditions of this Agreement, a Drawing will
be made available to a Borrower following receipt by the Agent from
such Borrower of a Drawdown Notice (in the case of a Borrower other
than UPCF, countersigned by UPCF) not later than 10 a.m. on the third
Banking Day before the proposed Drawdown Date. A Drawdown Notice shall
be effective on actual receipt by the Agent and, once given, shall,
subject as provided in clause 5.9(a), be irrevocable. No Drawdown
Notice may be given in respect of an amount which is the subject of a
notice received by the Agent under clause 6.9.
4.3 Term and Amount of Revolving Drawings
(a) Revolving Drawings may be made only on Banking Days falling
within the Facility A Revolving Period and may be borrowed
only for a Revolving Period of one month or two, three or six
months or (with the prior agreement of all of the Banks) any
other period in any such case ending not later than the last
day of the Facility A Revolving Period provided that any
Revolving Drawings made less than one month prior to the last
day of the Facility A Revolving Period may only be borrowed
for the period up to and ending on such date;
(b) each Revolving Drawing (other than Revolving Drawings made
against the issue by Telekabel Wien of Telekabel Notes) shall
be of a Euro Amount which is a minimum of Euro 10,000,000
and, in the case of any such Revolving Drawing to be made in
euro, an integral multiple of Euro 5,000,000 or the balance
of the Facility A Total Commitments;
22
(c) each Revolving Drawing to be made against the issue by
Telekabel Wien of a Telekabel Note shall be of a Euro Amount
which is a minimum of Euro 8,000,000 (unless such Telekabel
Note is to be issued in Austrian Schillings in which event it
shall be in a minimum amount of Austrian Schillings
100,000,000) and, in the case of any such Revolving Drawing to
be made in euro, an integral multiple of Euro 2,000,000 or
the balance of the Facility A Total Commitments;
(d) each Revolving Drawing shall be denominated in one currency only;
(e) no Revolving Drawing may be drawn down if, as a result, there
would be either more than (i) ten Revolving Drawings then
outstanding, other than Revolving Drawings made against the
issue by Telekabel Wien of Telekabel Notes or (ii) 25
Revolving Drawings made against the issue by Telekabel Wien of
Telekabel Notes.
4.4 Term and Amount of Term Drawings
(a) Term Drawings may only be made on any one Banking Day falling
on or before 3rd August, 1999 (or such other date as may be
agreed by the Agent) in the amounts and for the purposes
referred to in clause 1.1(a)(B). The Borrowers shall not be
permitted to make any other Term Drawings;
(b) each Term Drawing shall be denominated in one currency only
and shall remain in that currency until it is repaid in full;
and
(c) the Facility B Total Commitments will be automatically
cancelled following the making of the Term Drawings referred
to in paragraph (a) above.
4.5 Selection of currencies
Subject to the provisions of clause 4.6, if a Borrower so requests in
the Drawdown Notice for a Revolving Drawing, such Revolving Drawing may
be made in an Optional Currency.
4.6 Limit on currencies; non-availability
(A) A Revolving Drawing may not be made in an Optional Currency if (i)
in consequence thereof there would be Revolving Drawings outstanding in
more than 5 different currencies or (ii) the Agent determines after
consultation with the Reference Banks (which determination shall be
conclusive) at any time prior to 10 a.m. (local time in the place of
payment) on the Drawdown Date that by reason of any change in currency
availability, currency exchange rates or exchange controls it is or
will be impracticable for the relevant Drawing to be drawn down in that
Optional Currency. Accordingly, in any such event, the relevant Drawing
shall be drawn down in euros.
(B) If any Bank reasonably determines that deposits of the relevant
Optional Currency are not readily available to such Bank in an amount
comparable with such Bank's portion of any Revolving Drawing and so
notifies the Agent not later than 3 p.m. on the third Banking Day
before the proposed Drawdown Date the Agent shall so notify the
relevant Borrower and such Bank's proportion of such Revolving Advance
shall be drawn down in euro.
4.7 Currency Amounts
If a Drawing is to be made in an Optional Currency, the Banks shall,
subject to clause 3.2 and clause 4.6(B), advance to the relevant
Borrower on the making of such Drawing, the amount of such Optional
Currency requested. The Euro Amount of such Drawing shall be the amount
of euros (as determined by the Agent) which would be required to
purchase the amount of such Optional Currency advanced at the average
of the spot rates of exchange quoted to the Agent by the Reference
Banks to be ruling in the London Foreign Exchange Market for the
purchase of such Optional Currency with euros on receipt of the
relevant Drawdown Notice together with the amount of euros (if any)
drawn down in respect of such Drawing pursuant to clause 4.6(B). If a
Drawing is to be drawn down in euros, the Banks shall, subject to
clause 3.2, advance to the relevant Borrower on making of such Drawing,
the amounts of euros requested.
4.8 Notification to Xxxxx
On the date of receipt of a Drawdown Notice complying with the terms of
this Agreement the Agent shall notify each Bank thereof, of the date on
which the relevant Drawing is to be made and (in the case of a
Revolving Drawing) the Revolving Period thereof. Subject to the
provisions of clause 3, on the date for the making of a Revolving
Drawing each of the Banks shall (subject to clause 4.9) make available
to the Agent its portion of such Revolving Drawing in accordance with
clause 8.2.
23
4.9 Repayment of Revolving Drawings
If a Revolving Drawing (the "new Revolving Drawing") is to be made on a
day on which another Revolving Drawing (the "maturing Revolving
Drawing") denominated in the same currency and under the same Facility
as the new Revolving Drawing is due to be repaid by the same Borrower
then, subject to the terms of this Agreement and so long as the
conditions referred to in clause 3.2 shall have been satisfied in
relation to the new Revolving Drawing (if applicable) (i) the maturing
Revolving Drawing shall be deemed to have been repaid on its Revolving
Period End Date either in whole (if the new Revolving Drawing is equal
to or greater than the maturing Revolving Drawing) or in part (if the
new Revolving Drawing is less than the maturing Revolving Drawing) and
the relevant Borrower shall only be obliged to repay the principal
amount by which the maturing Revolving Drawing exceeds the new
Revolving Drawing and (ii) to the extent that the maturing Revolving
Drawing is so deemed to have been repaid, the principal amount of the
new Revolving Drawing to be made on such date shall be deemed to have
been credited to the account of the relevant Borrower by the Agent on
behalf of the Banks in accordance with the terms of this Agreement and
the Banks shall only be obliged to make available to the relevant
Borrower pursuant to clause 4.8 a principal amount (if any) equal to
the amount by which the new Revolving Drawing exceeds the maturing
Revolving Drawing.
4.10 Division and consolidation of Term Drawings
The relevant Borrower may by notice received by the Agent not later
than 10 a.m. on the third Banking Day before the beginning of each
Interest Period in respect of a Term Drawing specify that such Term
Drawing shall be either (a) divided into more than one Term Drawing, or
(b) consolidated with any other Term Drawing outstanding to such
Borrower in respect of the Facility B Outstandings in respect of which
the then current Interest Period ends on the same day as the current
Interest Period in respect of such Term Drawing. No more than five Term
Drawings (other than Term Drawings made against the issue by Telekabel
Wien of a Telekabel Note) and no more than twenty Term Drawings made
against the issue by Telekabel Wien of Telekabel Notes may be
outstanding under this Agreement at any time. If more than one Term
Drawing (other than a Term Drawing made against the issue by Telekabel
Wien of a Telekabel Note) is outstanding each such Term Drawing shall
be of a Euro Amount which is a minimum of Euro 10,000,000 and, in the
case of such a Term Drawing in euro, an integral multiple of
Euro 5,000,000 or the balance of the Facility B Outstandings. If more
than one Term Drawing made against the issue by Telekabel Wien of a
Telekabel Note is outstanding each such Term Drawing shall be of a Euro
Amount which is a minimum of Euro 8,000,000 (unless such Telekabel
Note is to be issued in Austrian Schillings in which event it shall be
of a minimum amount of Austrian Schillings 100,000,000) and, in the
case of any such Term Drawing in euro, an integral multiple of
Euro 2,000,000 or the balance of the Facility B Total Commitments.
4.11 Initial Drawings
Subject to the provisions of clause 3.1, the Borrowers undertake to
comply with the terms of this clause 4 so as to ensure that Drawdown
Notices are delivered for Term Drawings to be made on or before 3rd
August, 1999 (or such other date as may be agreed by the Agent) in
amounts not less than the aggregate principal amounts outstanding to
the relevant Borrower under the Existing UPC Senior Facility together
with all unpaid interest thereon and any other amounts payable in
relation thereto.
The Borrowers irrevocably authorise the Agent, and the Agent agrees, to
remit all or the relevant part of the proceeds of such Term Drawings in
discharge of the obligations of the relevant Borrowers under the
Existing UPC Senior Facility and the Agent's obligations under clause
8.2 in respect of such Term Drawings shall be to remit the balance
following such discharge (if any) to the relevant Borrower forthwith.
4.12 Revaluation of Term Drawings in Optional Currency
(a) If a Term Drawing has been drawn down in an Optional Currency, prior
to the end of each Interest Period, there shall be calculated the
difference between the Euro Amount of such Term Drawing for the
current Interest Period (the "Old Euro Amount") and for the next
Interest Period (the "New Euro Amount"). The New Euro Amount will be
the amount of euros that would be required to purchase the relevant
amount of such Optional Currency on the basis of the spot rate of
exchange reasonably determined by the Agent by reference to the
relevant page of the Xxxxxx Monitor Money Rates Service (or such other
page as may replace such page on such service for the purpose of
displaying spot rates of exchange) to be ruling in the London Foreign
Exchange Market for the purchase of such Optional Currency with euros
at or about 11 a.m. on the third Banking Day before the start of that
Interest Period.
24
(b) At the end of the current Interest Period the Euro Amount of
the relevant Term Drawing shall be the New Euro Amount.
(c) If the determination of the New Euro Amount of a Term Drawing
would cause the Facility B Limit to be exceeded the relevant
Borrower shall forthwith pay to the Agent for the account of
the Banks an amount in such Optional Currency required to
ensure that such limit is not exceeded and the New Euro Amount
of such Drawing shall be recalculated accordingly.
4.13 Application of proceeds
Without prejudice to the Borrowers' obligations under clause 11.1(c),
none of the Finance Parties shall have any responsibility for the
application of the proceeds of any Drawing by the relevant Borrower.
4.14 Telekabel Notes
Each borrowing of a portion of the Commitments to be made by Telekabel
Wien under this Agreement shall be made against the issue by Telekabel
Wien of a Telekabel Note to the Agent.
No more than 40 Drawings made against the issue by Telekabel Wien of
Telekabel Notes may be outstanding at any time.
At the same time as and together with a Drawdown Notice in connection
with any such Drawing to be made to Telekabel Wien, Telekabel Wien
shall deliver to the Agent an original Telekabel Note the details set
out in which shall correspond to the details of the Drawing described
in such Drawdown Notice. Telekabel Wien shall also deliver to the Agent
original Telekabel Notes the details of which correspond with the
relevant Term Drawings in respect of each Term Drawing outstanding to
Telekabel Wien either on consolidation pursuant to clause 4.10(b) or
together with any relevant notice given pursuant to clause 4.11.
The Banks shall be under no obligation to make any funds available to
Telekabel Wien unless the Agent shall have received such Telekabel Note
in a form satisfactory to it.
Telekabel Wien hereby authorises the Agent to complete the provisions
in each Telekabel Note relating to the calculation of interest payable
in connection therewith.
On the condition that the relevant Telekabel Note has been duly
completed and executed and provided that the conditions set out in
clause 3 have been satisfied, the Banks shall contribute to the Drawing
to be made to Telekabel Wien against the relevant Telekabel Note in
accordance with the provisions of clauses 4.2 to 4.14 (inclusive).
The Agent shall hold each Telekabel Note for and on behalf of the Banks
and shall not part with possession of such Telekabel Note without the
consent of the Banks. All payments received by the Agent under any
Telekabel Note shall be applied in accordance with the provisions of
clause 8. For the avoidance of doubt, for the purposes of the Security
Deed, all Indebtedness of Telekabel Wien under Telekabel Notes shall
constitute "Senior Indebtedness" (as defined in the Security Deed).
The Agent shall be entitled to place all Telekabel Notes deposited with
it in any safe deposit, safe or receptacle selected by the Agent and
the Agent shall not be responsible for any loss incurred in connection
with any such deposit, unless such loss results from the Agent's gross
negligence or wilful misconduct.
The Agent shall keep a full and complete record of all Telekabel Notes
and of their issue, payment, cancellation and destruction and of all
replacement Telekabel Notes issued in substitution for lost, stolen,
mutilated, defaced or destroyed Telekabel Notes. The Agent may cause to
be issued replacement Telekabel Notes in place of Telekabel Notes which
have been lost, stolen, mutilated, defaced or destroyed and Telekabel
Wien will cause replacement Telekabel Notes to be delivered to the
Agent for this purpose upon the provision to Telekabel Wien of such
evidence and indemnity in favour of Telekabel Wien as Telekabel Wien
shall reasonably require.
4.15 Subsidiary Drawings
UPCF shall not be permitted to on-lend any funds drawn down by it under
the Facilities to Telekabel Wien or Xxxxx without the consent of the
Majority Banks. Telekabel Wien and Xxxxx undertake that such funds as
they may respectively require for the purposes set out in clause 1.1
shall be drawn by them direct from the Banks in accordance with the
terms of this Agreement.
25
Interest; alternative interest rates
5.1 Normal interest rate
The Borrowers shall pay interest on each Drawing made to them in
respect of each Interest Period relating thereto on each Interest
Payment Date (and, in the case of an Drawing having an Interest Period
of more than six months, by instalments on the dates falling at six
monthly intervals from the first day of such Interest Period and on the
last day of such Interest Period) at the rate per annum determined by
the Agent to be the aggregate of (a) the applicable Margin, (b) the
Additional Cost and (c) EURIBOR (in the case of Drawings denominated in
euro) or LIBOR (in the case of Drawings denominated other than in
euro).
5.2 Applicable Margin
The Margin in relation to any Drawing and any unpaid sum due under this
Agreement under clause 5.6 shall (subject to the proviso below) be the
rate set out in column (I) below against the ratio of Total Cash Paying
Debt to Annualised Consolidated EBITDA (determined by reference to the
Six Month Period ending on the most recent Quarter Day in respect of
which Quarterly Management Accounts have been delivered to the Agent
under this Agreement) set out in column II below as at the first day of
the relevant Interest Period or, in relation to any unpaid sum due
under clause 5.6, the first day of the relevant period determined in
accordance with clause 5.6:
(I) (II)
Rate (per cent. per annum) Ratio of Total Cash Paying Debt to Annualised
Consolidated EBITDA
2.000 6.5:1 or greater (or negative)
1.625 greater than or equal to 6:1 but less than 6.5:1
1.500 greater than or equal to 5:1 but less than 6:1
1.250 greater than or equal to 3.5:1 but less than 5:1
0.750 Less than 3.5:1 (but not negative)
Provided that (i) if on the relevant date on which the Margin is to be
determined any of the Borrowers have failed to deliver any relevant
financial statements then due under this Agreement within the time
period for the Borrowers so to deliver such financial statements then
the Margin for such Drawing or such unpaid sum shall be 2.00 per cent.
per annum for the period until such financial statements are delivered
and (ii) the Margin applicable at all times up to the date falling six
months after the date of this Agreement shall be 1.50 or such greater
rate which may be applicable in accordance with column (II) above.
5.3 Interest Periods
The Interest Period in relation to each Revolving Drawing shall be of a
duration equal to the Revolving Period of such Revolving Drawing.
Interest Periods in respect of Term Drawings shall be of a duration
determined in accordance with clauses 5.4 and 5.5.
5.4 Selection of Interest Periods for Term Drawings
The relevant Borrower may by notice received by the Agent not later
than 10 a.m. on the third Banking Day before the beginning of each
Interest Period in respect of a Term Drawing specify whether such
Interest Period shall have a duration of one month or two, three or six
months or (with the prior agreement of all of the Banks) any other
period.
5.5 Determination of Interest Periods for Term Drawings
Every Interest Period in respect of a Term Drawing shall be of the
duration specified by the Borrowers pursuant to clause 5.4 but so that:
(a) ((i)) (if there is more than one Term Drawing
outstanding) Interest Periods in respect of Term
Drawings of an aggregate amount at least equal to the
amount of the Facility A Outstandings to be repaid on
any Term Repayment Date shall end on such date; and
(ii) (if there is only one Term Drawing outstanding) if
any Interest Period in respect thereof would
otherwise overrun a Term Repayment Date then such
Interest Period shall end on such date; and
(b) if any Borrower fails to specify the duration of an Interest
Period in accordance with the provisions of clause 5.4 and
this clause 5.5 such Interest Period shall, subject to this
clause 5.5, have a duration of three months.
26
5.6 Interest for late payment
If any Borrower fails to pay any sum (including, without limitation,
any sum payable pursuant to this clause 5.6) on its due date for
payment under this Agreement and/or any Telekabel Note the relevant
Borrower shall pay interest on such sum from the due date up to the
date of actual payment (as well after as before judgment) at a rate
determined by the Agent pursuant to this clause 5.6. The period
beginning on such due date and ending on such date of payment shall be
divided into successive periods of not more than three months as
selected by the Agent (after consultation with the Banks so far as
reasonably practicable in the circumstances) each of which (other than
the first, which shall commence on such due date) shall commence on the
last day of the preceding such period. The rate of interest applicable
to each such period shall be the aggregate (as determined by the Agent)
of (a) 1.5 per cent per annum, (b) the applicable Margin, (c) the
Additional Cost and (d) EURIBOR (in the case of amounts in euros) or
LIBOR (in the case of amounts in currencies other than euros), unless
such unpaid sum is an amount of principal which shall have become due
and payable, by reason of a declaration by the Agent under clause
13.2(b) or a prepayment pursuant to clauses 6.5 or 15.1, other than on
an Interest Payment Date, in which case the first such period selected
by the Agent shall end on such Interest Payment Date and interest shall
be payable on such unpaid sum during such period at a rate 1.5 per
cent. above the rate applicable thereto immediately before it shall
have become so due and payable. Interest under this clause 5.6 shall be
due and payable on the last day of each period determined by the Agent
pursuant to this clause 5.6 or, if earlier, on the date on which the
sum in respect of which such interest is accruing shall actually be
paid. If, for the reasons specified in clause 5.9(a)(i) or 5.9(a)(ii),
the Agent is unable to determine a rate in accordance with the
foregoing provisions of this clause 5.6, each Bank shall promptly
notify the Agent of the cost of funds to such Bank and interest on any
sum not paid on its due date for payment shall be calculated for each
Bank at a rate determined by the Agent to be 1.5 per cent. per annum
above the aggregate of the applicable Margin and the cost of funds to
such Bank.
5.7 Notification of interest periods and interest rates
The Agent shall notify the relevant Borrower and the Banks promptly of
the amount of each Term Drawing, the duration of each Interest Period
or other period for the calculation of interest (or, as the case may
be, default interest) and of each rate of interest determined by it
under this clause 5.
5.8 Reference Bank quotations
If (at any time when Reference Bank quotations are required having
regard to the definition of "EURIBOR" or "LIBOR" (as appropriate) in
clause 1.2) any Reference Bank is unable or otherwise fails to furnish
a quotation for the purpose of calculating EURIBOR or LIBOR, the
interest rate for the relevant Revolving Period, Interest Period or
other period shall be determined, subject to clause 5.9, on the basis
of the quotations furnished by the remaining Reference Banks.
5.9 Market disruption; non-availability
(a) If and whenever, at any time prior to the commencement of any
Interest Period:
(i) (at any time when Reference Bank quotations are
required having regard to the definition of "EURIBOR"
or "LIBOR" in clause 1.2) the Agent shall have
determined, after consultation with the Reference
Banks (which determination shall, in the absence of
manifest error, be conclusive), that adequate and
fair means do not exist for ascertaining EURIBOR or
LIBOR (as appropriate) during such Interest Period;
or
(ii) none of the Reference Banks supplies the Agent with a
quotation for the purpose of calculating EURIBOR or
LIBOR (as appropriate); or
(iii) the Agent shall have received notification from Banks
with Contributions aggregating not less than
one-third of the total of the Loan (or, prior to the
first Drawdown Date, Commitments aggregating not less
than one-third of the Total Commitments) that
deposits in euros are not available to such Banks in
the ordinary course of business in sufficient amounts
to fund their contributions to such Drawing or that
EURIBOR or LIBOR (as appropriate) does not accurately
reflect the cost to such Banks of obtaining such
deposits;
27
the Agent shall forthwith give notice (a "Determination Notice")
to the Borrowers and to each of the Banks and, in the case of a
Revolving Drawing, such Drawing shall not be made. A
Determination Notice shall contain particulars of the relevant
circumstances giving rise to its issue.
(b) After the giving of any Determination Notice the undrawn amount
of the Total Commitments shall not be borrowed until the
circumstances giving rise to the issue of the Determination
Notice have ceased.
(c) During the period of 10 days after any Determination Notice has
been given by the Agent under clause 5.9(a) the Agent (after
consultation with, and on behalf of, the Banks) shall negotiate
with UPCF with a view to agreeing an alternative basis for
calculating interest and/or for funding Drawings. Any such basis
agreed between the Agent (with the consent of the Banks) and UPCF
shall take effect in accordance with its terms. If an alternative
basis is not so agreed during such period of 10 days each Bank
shall certify an alternative basis (the "Substitute Basis") for
making available or, as the case may be, maintaining its
contribution to the Drawing. The Substitute Basis may (without
limitation) include alternative interest periods, alternative
currencies or alternative rates of interest but shall include a
margin above the cost of funds including Additional Cost, if any,
to such Bank equivalent to the Margin. Each Substitute Basis so
certified shall be binding upon the Borrowers and shall take
effect in accordance with its terms from the date specified in
the Determination Notice until such time as the circumstances
specified in clause 5.9(a)(iii) and either 5.9(a)(i) or (ii) do
not apply whereupon the normal interest rate fixing provisions of
this Agreement shall apply.
6
Repayment, prepayment and cancellation
6.1 Repayment of Revolving Drawings
The Borrowers agree to repay each Revolving Drawing in respect of which
the Revolving Period End Date falls prior to the last day of the
Facility A Revolving Period on such Revolving Period End Date in the
currency in which it is denominated.
6.2 Reduction of Tranche A Commitment
Each Borrower shall repay the Tranche A Revolving Drawings so that the
Facility A Outstandings on each date specified in column (1) below are
not more than the Euro Amount specified in column (2) below opposite
the relevant date (each, a "Reduction Date"):
(1) (2)
Date Euro Amount
(Euro 000)
30 June 2002 727,500
30 September 2002 705,000
31 December 2002 682,500
31 March 2003 652,500
30 June 2003 622,500
30 September 2003 592,500
31 December 2003 562,500
31 March 2004 525,000
30 June 2004 487,500
30 September 2004 450,000
31 December 2004 412,500
31 March 2005 365,625
30 June 2005 318,750
30 September 2005 271,875
31 December 2005 225,000
31 March 2006 178,125
27 July 2006 0
The Tranche A Commitments of each Bank shall be reduced on each
Reduction Date accordingly and the Facility A Outstandings shall not
thereafter exceed the amount set opposite such Reduction Date.
6.3 Repayment of the Facility B Loan
The Borrowers shall repay the Term Drawings so that the Facility B
Outstandings on each date specified in column (1) below are not more
than the Euro Amount specified in column (2) below opposite the
relevant date (each a "Reduction Date").
28
(1) (2)
Date Euro Amount
(Euro 000)
30 June 2002 242,500
30 September 2002 235,000
31 December 2002 227,500
31 March 2003 217,500
30 June 2003 207,500
30 September 2003 197,500
31 December 2003 187,500
31 March 2004 175,000
30 June 2004 162,500
30 September 2004 150,000
31 December 2004 137,500
31 March 2005 121,875
30 June 2005 106,250
30 September 2005 90,625
31 December 2005 75,000
31 March 2006 59,375
27 July 2006 0
6.4 Voluntary prepayment
Any Borrower may, without premium or penalty, prepay any Drawing made
to it (in whole or in part provided that, in the case of part, the Euro
Amount of such part is a minimum of Euro 10,000,000 and, in the case
of Drawings made in euro, an integral multiple of Euro 5,000,000) at
any time subject to the provisions of this clause 6. Any amount prepaid
pursuant to this clause 6.4 shall be applied against the Facility A
Outstandings and the Facility B Outstandings in a proportion of 3:1. If
it is not possible to apply the amount prepaid in such proportion
because there are insufficient Facility A Outstandings, or, as the case
may be, Facility B Outstandings, any amount that cannot be applied
against the Facility A Outstandings shall be applied against the
Facility B Outstandings and vice versa. Each Euro Amount in respect of
each subsequent Reduction Date specified in clause 6.2 shall be reduced
by each amount prepaid under this clause 6.4 on or after 30 June 2002
in respect of the Facility A Outstandings. Each Euro Amount in respect
of each subsequent Reduction Date specified in clause 6.3 shall be
reduced by each amount prepaid under this clause 6.4 in respect of the
Facility B Outstandings.
6.5 Additional voluntary prepayment
The Borrowers may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under
clauses 5.9, 8.5, 8.6 and 15.2, the Contribution of any Bank to which
any Borrower shall have become obliged to pay additional amounts under
clause 5.9, 8.5 or 15.2. Upon any notice of such prepayment being
given, the Commitment of the relevant Bank shall be reduced to zero and
the amount of the Total Commitments shall be reduced accordingly. Any
amount prepaid pursuant to this clause 6.5 shall be applied against the
Facility A Outstandings to the extent of the relevant Bank's Facility A
Outstandings and the Facility B Outstandings to the extent of the
relevant Bank's Facility B Outstandings. Each Euro Amount in respect of
each subsequent Reduction Date specified in clause 6.2 shall be reduced
by each amount prepaid under this clause 6.5 in respect of the Facility
A Outstandings. Each Euro Amount in respect of each subsequent
Reduction Date specified in clause 6.3 shall be reduced by each amount
prepaid under this clause 6.5 in respect of the Facility B
Outstandings.
29
6.6 Mandatory prepayment
(a) The Borrowers shall be obliged to prepay the Loan in whole within 5 Banking
Days of written request from the Agent (which it shall give unless
otherwise instructed by all of the Banks in the case of (A) below and the
Majority Banks in the case of (B) below) following the occurrence of a
Change of Ownership. For the purpose of this clause 6.6(a), "Change of
Ownership" means any of (A) UPC (i) is not or ceases to be the direct or
indirect legal and beneficial owner of more than 50 per cent. of the issued
share capital of UPCF or (ii) ceases to Control UPCF or (B) UGC ceases (i)
directly or indirectly to own more than 50 per cent. of the issued share
capital of UPC and (ii) to Control UPC.
(b) Without prejudice to the obligations of the Borrowers under paragraph (a)
above and subject to the terms of the Security Deed, if UPC disposes of any
part of its interest in the equity share capital of UPCF, (unless otherwise
agreed in writing by the Agent acting on the instructions of the Majority
Banks) the Borrowers undertake to prepay the Loan in an amount equal to the
net proceeds of such disposal or the cash equivalent thereof.
(c) The Borrowers undertake (unless otherwise agreed in writing by the Agent
acting on the instructions of the Majority Banks), subject to the terms of
the Security Deed, to apply and to procure the application of all of the
proceeds of all disposals or the cash equivalent thereof (other than under
paragraphs (i) to (ix) inclusive and (x)(A) of the definition of Permitted
Disposals) made by any member of the Restricted Group of assets comprising
or contributing in aggregate a percentage value of (A) 20 per cent. or more
of the total assets, revenues or EBITDA of the Restricted Group (taken as a
whole) in prepayment of the Loan (or, if less the amount of the Loan) and
(B) not less than 10 per cent. but not more than 20 per cent. of the total
assets, revenues or EBITDA of the Restricted Group (taken as a whole) in
prepayment of the Loan (or, if less the amount of the Loan) unless in the
case of (B) only the entire amount of such proceeds are, within 12 months
of receipt, reinvested in the business of the Restricted Group in which
event the percentage value of such assets shall not be taken into account
for the purposes of this clause 6.6(c). Prior to being reinvested in the
business of the Restricted Group, the entire amount to be reinvested shall
be either (i) used to prepay the Loan (and, for the avoidance of doubt, the
Borrowers shall not be required to cancel a corresponding amount of the
Facility A Commitments) or (ii) deposited with the Agent or as the Agent
may reasonably direct in an account (or accounts) bearing interest at rates
customarily offered by the Agent in such circumstances on terms that the
principal amount so deposited may only be released by the making of the
relevant payment or payments by which such amount will be reinvested in the
business of the Restricted Group.
For the purposes of this clause 6.6(c) and the definition of
"Permitted Disposal", "percentage value" of an asset disposed
of means the percentage of the total assets, revenues or
EBITDA of the Restricted Group (as the case may be)
attributable to such asset in respect of the financial year
(in the case of revenues or EBITDA) or as at the end of the
financial year (in the case of total assets) immediately
preceding the financial year in which the asset is disposed of
and for the avoidance of doubt the value of assets disposed of
will be calculated on an increasing percentage basis such that
any percentage value will automatically be added to the
percentage value of any subsequent disposal. For the purpose
of this clause 6.6(c) all calculations shall be by reference
to the annual consolidated financial statements of UPCF or, as
the case may be, the annual combined financial statements of
the Restricted Group required to be produced pursuant to this
Agreement.
(d) The Borrowers undertake (unless otherwise agreed in writing by the Agent
acting on the instructions of the Majority Banks) to apply or procure the
application of 50 per cent. of Excess Cash Flow (if any) in respect of each
financial year of the Restricted Group commencing with the financial year
ending on 31st December, 2003 in prepayment of the Loan provided that (i)
no such prepayment shall be required to be made if the then applicable
ratio for the purpose of clause 12.1(b) is 3.5:1 (or less) and (ii) no such
prepayment shall be required if the amount of Excess Cash Flow in respect
of the relevant financial year is less than Euro 5,000,000.
(e) Each amount to be prepaid under paragraphs (b), (c) and (d) above shall be
deposited immediately with the Agent or as the Agent may reasonably direct
in an account (or accounts) bearing interest at rates customarily offered
by the Agent in such circumstances on terms that the principal amount so
deposited may only be released by making the relevant prepayment on
Interest Payment Dates falling immediately thereafter in accordance with
clause 6.6(f) until the prepayment obligations under paragraphs (b), (c)
and (d) above have been satisfied.
30
(f) Each amount to be prepaid under paragraphs (b), (c) and (d) above shall be
applied against the Facility A Outstandings and the Facility B Outstandings
in a proportion of 3:1. If it is not possible to apply the amount prepaid
in such proportion because there are insufficient Facility A Outstandings,
or, as the case may be, Facility B Outstandings, any amount that cannot be
applied against the Facility A Outstandings shall be applied against the
Facility B Outstandings and vice versa. The Facility A Total Commitments
and each Euro Amount in respect of each subsequent Reduction Date specified
in clause 6.2 shall be reduced by the amount prepaid under paragraphs (b),
(c) or (d) above in respect of the Facility A Outstandings. The Facility B
Total Commitments and each Euro Amount in respect of each subsequent
Reduction Date specified in clause 6.3 shall be reduced by the amount
prepaid under paragraphs (b), (c) or (d) above in respect of the Facility B
Outstandings.
(g) Subject to clause 6.6(f), if on any Interest Payment Date following the
making of a deposit pursuant to clause 6.6(e):
(A) the deposit is less than the amount of the Drawings
under the relevant Facility whose Interest Periods
end on such date, the relevant Borrower may select
against which Drawing or Drawings under such Facility
the prepayment is to be made and the proportion of
the relevant amount to be prepaid on each such
Drawings but shall ensure that the full amount
required to be applied is so applied in prepayment;
or
(B) the deposit is equal to or greater than the amount of
the Drawings under the relevant Facility whose
Interest Periods end on such date, the Borrowers
shall prepay, or procure the prepayment of, each such
Drawing on such date.
(h) If the proceeds of disposals of assets comprising or contributing in
aggregate a percentage value of less than 10 per cent. of the total assets,
revenues or EBITDA of the Restricted Group are either (i) reinvested in the
business of the Restricted Group within 12 months of receipt or (ii)
deposited immediately with the Agent and applied in prepayment of the
Facility A Outstandings and the Facility B Outstandings and reduction of
the Facility A Total Commitments and the Euro Amount in respect of each
subsequent Reduction Date specified in clause 6.2 and reduction of the
Facility B Total Commitments and the Euro Amount in respect of each
subsequent Reduction Date specified in clause 6.3 in accordance with the
mechanics set out in clause 6.6(e) and (f), the percentage value of such
assets shall not be taken into account for the purposes of clause 6.6(c) or
paragraph (x)(A) of the definition of Permitted Disposal.
(i) Cancellation
For the avoidance of doubt, and without prejudice to any other
provision of this Agreement, on the date upon which any
mandatory prepayment under clause 6.6(a) is required to be
made the Facility A Total Commitments shall be automatically
reduced to zero.
6.7 Application and amounts payable on prepayment
Any prepayment under this Agreement shall be made in the currency in
which the relevant Drawing is then denominated together with: (a)
accrued interest to the date of prepayment; (b) any additional amount
payable under clause 5.9, 8.5 or 15.2; and (c) all other sums payable
by the relevant Borrower to the relevant Bank under this Agreement
including, without limitation, any accrued commitment commission
payable under clause 7.1(c) on any undrawn amount that is cancelled at
the same time as such prepayment and any amounts payable under clause
14.1.
6.8 Notice of prepayment
No prepayment may be effected under this clause 6 (other than following
written request from the Agent under clause 6.6(a)) unless the relevant
Borrower shall have given the Agent at least three Banking Days' notice
of its intention to make such prepayment. Every notice of prepayment
shall be effective only on actual receipt by the Agent, shall be
irrevocable and shall oblige the relevant Borrower to make such
prepayment on the date specified. No amount prepaid pursuant to clause
6.6 or at any time in respect of Facility B may be reborrowed. The
Borrowers may not prepay the Loan or any part thereof save as expressly
provided in this Agreement.
6.9 Cancellation of Commitments
The Borrowers may at any time by notice to the Agent (effective only on
actual receipt) cancel with effect from a date not less than three
Banking Days after the receipt by the Agent of such notice the whole or
any part (being Euro 10,000,000 or any larger sum which is an integral
multiple Euro 5,000,000) of the Facility A Total Commitments which is
not then outstanding or requested in a Drawdown Notice in respect of
which a Drawing has not been made. Any such notice of cancellation,
once given, shall be irrevocable and upon such cancellation taking
effect the Facility A Commitment of each Bank shall be reduced
proportionately. The Facility A Total Commitments shall be
automatically reduced by the amount cancelled and each Euro Amount in
respect of each subsequent Reduction Date specified in clause 6.2 shall
be reduced by the amount so cancelled.
31
Fees and expenses
7.1 Fees
UPCF shall pay to the Agent whether or not any part of the Commitments
is ever drawn:
(a) on the earlier of (i) the date of the first Drawing and (ii)
the date falling ten Banking Days after the date of this
Agreement, for the account of the Joint Arrangers, an
arrangement fee of an amount agreed between the Borrowers and
the Joint Arrangers in a letter dated the date hereof;
(b) on the earlier of (i) the date of the first Drawing and (ii)
the date falling ten Banking Days after the date of this
Agreement, and on each anniversary of the date of this
Agreement until all moneys owing under this Agreement have
been paid in full, for the account of the Agent, an agency fee
of an amount agreed between the Borrowers and the Agent in a
letter dated the date hereof; and
(c) for the account of each Bank, a commitment commission in
respect of that Bank's Facility A Commitment on a daily basis
in arrears on each Quarter Day after the date of this
Agreement and on the Final Repayment Date at the rate of 0.50
per cent. per annum on the daily undrawn and uncancelled
amount of such Bank's Facility A Commitment.
7.2 Expenses
UPCF shall pay to the Agent on demand:
(a) all reasonable expenses (including reasonable legal, printing and
out-of-pocket expenses) incurred by the Agent, the Security Agent, and the
Joint Arrangers in connection with the negotiation, preparation and
execution of this Agreement and the Security Documents, the syndication of
the Facilities and the preparation and distribution of the Information
Memorandum and of any amendment or extension of, or the granting of any
waiver or consent under, this Agreement or the Security Documents together
with interest at the rate referred to in clause 5.6 from the date of demand
for payment of such expenses to the date of payment (as well after as
before judgment); and
(b) all expenses (including legal and out-of-pocket expenses) incurred by the
Secured Parties or any of them in contemplation of, or otherwise in
connection with, the enforcement or bona fide attempted enforcement of, or
preservation or bona fide attempted preservation of any rights under, this
Agreement and/or the Security Documents, including, without limitation,
after the occurrence of an Event of Default or if otherwise agreed with
UPCF, the fees and expenses of accountants or other experts incurred in
relation to any investigation into the affairs of UPCF or any member of the
Restricted Group, or otherwise in respect of the moneys owing under this
Agreement and/or the Security Documents, together with interest at the rate
referred to in clause 5.6 from the date on which such expenses were
incurred to the date of payment (as well after as before judgment).
7.3 Value Added Tax
All fees and expenses payable pursuant to this clause 7 shall be paid
together with an amount equal to any value added tax payable by the
relevant Secured Party in respect of such fees and expenses.
7.4 Stamp and other duties
UPCF shall pay all stamp, documentary, registration or other similar
duties or Taxes (including any such duties or Taxes payable by, or
assessed on, any Secured Party) imposed on or in connection with this
Agreement and/or the Security Documents or the Facilities (other than
those imposed by reason of any assignment or novation by any Bank).
7.5 Indemnity
UPCF shall indemnify the relevant Secured Party against any liability
arising by reason of any delay or omission by UPCF to pay such duties
or Taxes under clause 7.4.
32
Payments and Taxes; accounts and calculations
8.1 No set-off or counterclaim; distribution to the Banks
All payments to be made by the Obligors under this Agreement and/or the
Security Documents shall be made in full, without any set-off or
counterclaim whatsoever and, subject as provided in clause 8.5, free
and clear of any deductions or withholdings, in euros or the relevant
Optional Currency (except for costs, charges or expenses which shall be
payable in the currency in which they are incurred) on the due date to
the account of the Agent at such bank as the Agent may from time to
time specify for this purpose. Save where the Security Deed otherwise
provides or where this Agreement and/or the Security Documents provide
for a payment to be made for the account of a particular Bank
(including, without limitation, clauses 6.5, 7, 8.5, 14.1, 14.2, 15.1
and 15.2), in which case the Agent shall distribute the relevant
payment to the Bank concerned, or for the account of the Agent (for its
own account), the Joint Arrangers or the Security Agent payments to be
made by any Obligor under this Agreement and/or the Security Documents
shall be for the account of all the Banks and the Agent shall forthwith
distribute such payments in like funds as are received by the Agent to
the Banks rateably in accordance with their Commitments or
Contributions, as the case may be.
8.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrowers under this
Agreement shall be remitted in euros or the relevant Optional Currency
on the relevant Drawdown Date to the account of the Agent at such bank
as the Agent may have notified to the Banks and shall be paid by the
Agent on such date in like funds as are received by the Agent to the
account of the relevant Borrower specified in the relevant Drawdown
Notice.
8.3 Non-Banking Days
When any payment under this Agreement would otherwise be due or any
reduction in the Total Commitments pursuant to clause 6 would otherwise
be effected on a day which is not a Banking Day, the due date for
payment or the date of such reduction shall be postponed to the next
following Banking Day unless such Banking Day falls in the next
calendar month in which case payment shall be made on the immediately
preceding Banking Day. If any date or day specifically referred to in
this Agreement is not a Banking Day all references thereto shall be
deemed to be to the immediately preceding Banking Day.
8.4 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume that the payment will
be made when due and may (but shall not be obliged to) make such sum
available to the person so entitled. If it proves to be the case that
such payment was not made to the Agent, then the person to whom such
sum was so made available shall on request refund such sum to the Agent
together with interest thereon sufficient to compensate the Agent for
the cost of making available such sum up to the date of such repayment
and the person by whom such sum was payable shall indemnify the Agent
for any and all loss or reasonable expense which the Agent may sustain
or incur as a consequence of such sum not having been paid on its due
date.
8.5 Grossing-up for Taxes
Subject to clause 8.6, at any time any Obligor is required to make any
deduction or withholding in respect of Taxes from any payment due under
this Agreement and/or the Security Documents for the account of any
Secured Party (or if the Agent or the Security Agent is required to
make any such deduction or withholding from a payment to any other
Secured Party), the sum due from the relevant Obligor in respect of
such payment shall, subject to the relevant Secured Party's compliance
with clause 8.8(b), be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, each Secured
Party receives on the due date for such payment (and retains, free from
any liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made and the relevant Obligor shall
indemnify each Secured Party against any losses or costs incurred by
any of them by reason of any failure of such Obligor to make any such
deduction or withholding or by reason of any increased payment not
being made on the due date for such payment. The relevant Obligor shall
promptly deliver to the Agent any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any such
deduction or withholding.
33
8.6 Qualifying Banks
If any Secured Party is not or ceases to be a Qualifying Bank then it
shall promptly notify the relevant Obligor upon becoming aware of the
same and the relevant Obligor shall not be obliged to pay such Secured
Party under clause 8.5 any amount in excess of the amount it would have
been obliged to pay if such Secured Party was or had not ceased to be a
Qualifying Bank provided that this clause 8.6 shall not apply (and the
relevant Obligor shall be obliged to comply with its obligations under
clause 8.5) if after today's date there shall have been any change in,
or in the interpretation or application of, any relevant law,
directive, treaty (including, without limitation, any applicable double
tax treaty) or regulation or practice of any applicable taxation
authority and as a result thereof the relevant Secured Party ceases to
be a Qualifying Bank or the relevant Obligor will be required to make
deduction or withholding on account of tax irrespective of whether the
recipient of the relevant payment is or is not a Qualifying Bank. Each
Secured Party confirms to each of the Obligors that it is, as at the
date of this Agreement, a Qualifying Bank.
8.7 Claw-back of Tax benefit
If following any such deduction or withholding as is referred to in
clause 8.5 any Secured Party shall receive or be granted a credit
against or remission for any Taxes payable by it, the relevant Secured
Party shall, subject to the relevant Obligor having made any increased
payment in accordance with clause 8.5 and to the extent that the
relevant Secured Party can do so without prejudicing the retention of
the amount of such credit or remission and without prejudice to the
right of the relevant Secured Party to obtain any other relief or
allowance which may be available to it, reimburse the relevant Obligor
with such amount as the relevant Secured Party shall in its absolute
discretion certify to be the proportion of such credit or remission as
will leave the relevant Secured Party (after such reimbursement) in no
worse position than it would have been in had there been no such
deduction or withholding from the payment by the relevant Obligor as
aforesaid. Such reimbursement shall be made forthwith upon the relevant
Security Party certifying that the amount of such credit or remission
has been received by it. Nothing contained in this Agreement shall
oblige any Secured Party to rearrange its tax affairs or to disclose
any information regarding its tax affairs and computations. Without
prejudice to the generality of the foregoing, the Obligors shall not,
by virtue of this clause 8.7, be entitled to enquire about any Secured
Party's tax affairs.
8.8 Certification to secure a Tax benefit
If, in order to make any payment due under this Agreement and/or any
Security Document to any Secured Party without deduction or withholding
for or on account of Tax or to secure the benefit of any reduced rate
of such deduction or withholding, any Obligor requires a direction from
or the consent of a government or taxing authority:
(a) the relevant Obligor agrees to use its reasonable endeavours to complete
(accurately and in a manner reasonably satisfactory to such Secured Party),
execute, arrange for any required certification of, and deliver to such
Secured Party or such government or taxing authority as such Secured Party
reasonably directs, any form or document reasonably required of it, and to
provide such information that such Secured Party or such government or
taxing authority may reasonably require or request in order to assist or
enable such Secured Party to secure that such a direction or consent is
given to the relevant Obligor in respect of any payment. Each Obligor shall
perform its obligations under this sub-paragraph (a) as soon as reasonably
practicable following the earlier of:
(i) being notified that the form, document or information is required or
reasonably requested; and
(ii) reasonable demand being made by such Secured Party or the demand by
the relevant government or taxing authority, as the case may be;
(b) each Secured Party agrees to use its reasonable endeavours to complete
(accurately and in a manner reasonably satisfactory to the relevant
Obligor), execute, arrange for any required certification of, and deliver
to the relevant Obligor, or such government or taxing authority as the
relevant Obligor may reasonably direct, any form or document reasonably
required of it, and to provide such information that the relevant Obligor
or such government or taxing authority may reasonably require or request in
order to assist or enable the relevant Obligor to secure that such a
direction or consent is given to the relevant Obligor in respect of any
payment. The obligations of the Secured Parties under this sub-paragraph
(b) shall be performed within 30 days of reasonable demand by the relevant
Obligor.
34
8.9 Bank accounts
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Agent shall maintain
a control account showing each Drawing and other sums owing by each
Borrower under this Agreement and all payments in respect thereof made
by the Obligors from time to time. The control accounts shall be prima
facie evidence of the amount from time to time owing by the Borrowers
under this Agreement.
8.10 Partial payments
If, on any date on which a payment is due to be made by any Obligor
under this Agreement and/or the Security Documents, the amount received
by the Agent from the relevant Obligor falls short of the total amount
of the payment due to be made by the relevant Obligor on such date
then, without prejudice to any rights or remedies available to the
Secured Parties under this Agreement and/or the Security Documents, the
Agent shall apply the amount actually received from the relevant
Obligor in or towards discharge of the obligations of the Borrowers
under this Agreement in the following order, notwithstanding any
appropriation made, or purported to be made, by the relevant Obligor:
(a) firstly, in or towards payment, on a pro rata basis, of any
unpaid fees, costs and expenses of the Agent under this
Agreement and/or the Security Documents;
(b) secondly, in or towards payment to the Joint Arrangers of any
portion of the arrangement fee payable under clause 7.1(a)
which remains unpaid, to the Agent of any portion of the
agency fee payable under clause 7.1(b) which remains unpaid;
(c) thirdly, in or towards payment to the Banks, on a pro rata
basis, of any accrued commitment commission payable under
clause 7.1(c) which shall have become due but remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata
basis, of any accrued interest which shall have become due but
remains unpaid;
(e) fifthly, in or towards payment to the Banks, on a pro rata
basis, of any principal which shall have become due but
remains unpaid; and
(f) sixthly, in or towards payment of any other sum which shall
have become due but remains unpaid (and, if more than one such
sum so remains unpaid, on a pro rata basis).
The order of application set out in this clause 8.10(b)-8.10(f) shall
be varied by the Agent if all Banks so direct, without any reference
to, or consent or approval from, any of the Obligors.
8.11 Calculations
All interest and other payments of an annual nature under this
Agreement shall accrue from day to day and be calculated on the basis
of actual days elapsed and (in the case of euros) a 360 day year or (in
the case of an Optional Currency) in accordance with standard London
interbank market practice in respect of calculating the numbers of days
comprising a year. In calculating the actual number of days elapsed in
a period which is one of a series of consecutive periods with no
interval between them or a period on the last day of which any payment
falls to be made in respect of such period, the first day of such
period shall be included but the last day excluded.
8.12 Certificates conclusive
Any certificate or determination of the Agent or any Secured Party as
to any rate of interest or any amount payable under this Agreement
shall, in the absence of manifest error, be conclusive and binding on
the Obligors and (in the case of a certificate or determination by the
Agent) on the Secured Parties.
8.13 Reconventioning
After consultation between the Agent, UPCF and the Banks and
notwithstanding clause 18.11 the Agent (acting reasonably) shall be
entitled to make such amendments to the provisions of this Agreement as
it may determine to be necessary to conform them to market practices
(whether as to the settlement or rounding of obligations, the
calculation of interest or otherwise howsoever) then applicable to
instruments denominated in euro.
35
Any amendment so made to this Agreement by the Agent shall be promptly
notified to the Banks and the Obligors by the Agent and shall be
binding on all the Banks and the Obligors.
8.14 Effect of monetary union
If the country of any national currency in which any amount is
expressed to be payable under this Agreement participates in Economic
and Monetary Union in accordance with Article 109j of the Treaty, then:
(a) any amount expressed to be payable under this Agreement in
that national currency shall be made in that national currency
or in euro as the Agent may, by not less than five Banking
Days' notice to the Obligors and the Banks to that effect,
require;
(b) any amount so required to be paid in euro shall be converted
from that national currency at the rate stipulated pursuant to
Article 109l(4) of the Treaty and payment of the amount in
euro derived from such conversion shall discharge the
obligation of the relevant party to pay such national currency
amount in accordance with, and subject to, the Regulation(s)
made pursuant to Article 109l(4).
Guarantee
9.1 Limits of Guarantee
Notwithstanding the provisions of clause 9.2 to 9.17 inclusive, the
following limitations shall apply to the relevant Guarantors:
(a) Belgium
The liability of Radio Public under the Guarantee shall be
limited to the amount that has been on-lent to Radio Public
from time to time from Drawings made to the Borrowers,
together with the amount of any Drawings which have been
applied by the relevant Borrower in satisfaction of
obligations of Radio Public.
(b) Netherlands
Notwithstanding any provision to the contrary under this
clause 9, the total amount that can be recovered from the
Guarantors incorporated in The Netherlands under this
Guarantee shall not at any time exceed 85% of the net asset
value (Netto Vermogens Waarde) of the relevant Guarantor from
time to time as reflected in the latest audited approved
financial statements proceeding the date of payment by the
Guarantor under this Guarantee provided that determining net
asset value for these purposes any loans or balances due from
the Guarantor to any member of the Restricted Group, shall be
treated as if such amounts have been subscribed by way of
equity share capital in the Guarantor and should not be
treated as reducing the gross assets. For the purpose of this
clause 9.1(b), all terms used herein shall have the meaning
usually given to them in accordance with Dutch accounting laws
and rules consistently applied.
9.2 Covenant to pay
In consideration of the Banks making or continuing to make available
Drawings to the Borrowers pursuant to this Agreement and the High Yield
Hedging Banks entering into the High Yield Hedging Arrangements, the
Guarantors hereby irrevocably and unconditionally but subject always to
the provisions of clause 9.1:
(a) jointly and severally guarantee in favour of the Security
Agent on behalf of each Secured Party on demand (which demand
may only be given following the making of demand on the
relevant Borrower) the due performance by the Borrowers or UPC
of all of their respective obligations under or pursuant to
the Finance Documents; and
(b) jointly and severally guarantee in favour of the Security
Agent on behalf of each Secured Party on demand (which demand
may only be given following the making of demand on the
relevant Borrower) the payment of all moneys now or hereafter
due, owing or incurred by the Borrowers or UPC under or
pursuant to the Finance Documents when the same become due
whether by acceleration or otherwise.
36
9.3 Guarantors as principal debtors; indemnity
As a separate and independent stipulation, but subject always to the
provisions of clause 9.1, the Guarantors jointly and severally agree
that if any purported obligation or liability of any member of the
Restricted Group or UPC which would have been the subject of this
Guarantee had it been valid and enforceable is not or ceases to be
valid or enforceable against such member of the Restricted Group or UPC
on any ground whatsoever whether or not known to the Secured Parties,
or any of them, (including, without limitation, any irregular exercise
or absence of any corporate power or lack of authority of, or breach of
duty by, any person purporting to act on behalf of such member of the
Restricted Group or UPC or any legal or other limitation, or any
disability or Incapacity or any change in the constitution of any
relevant member of the Restricted Group or UPC) the Guarantors shall
nevertheless be jointly and severally liable in respect of that
purported obligation or liability as if the same were fully valid and
enforceable and such Guarantor was the principal debtor in respect
thereof. The Guarantors hereby irrevocably and unconditionally jointly
and severally agree to indemnify and keep indemnified the Secured
Parties against any loss or liability arising from any failure of any
member of the Restricted Group or UPC to perform or discharge any such
purported obligation or liability or from any invalidity or
unenforceability of any of the same against any member of the
Restricted Group or UPC (subject to the provisions of clause 9.1).
9.4 No security taken by Guarantors
The Guarantors hereby jointly and severally warrant that they have not
taken or received, and undertake that until all the Guaranteed
Liabilities have been paid or discharged in full, they will not take or
receive, the benefit of any security from any other Obligor, UPC or any
other person in respect of their obligations under this Guarantee save
as may be agreed by the Majority Banks.
9.5 Interest
Each Guarantor agrees to pay interest on each amount demanded of it
under this Guarantee from the date of such demand until payment (as
well after as before judgment) at the rate specified in clause 5.6.
Such interest shall be compounded at the end of each period determined
for this purpose by the Agent in the event of it not being paid when
demanded but without prejudice to the Security Agent's right to require
payment of such interest.
9.6 Continuing security and other matters
This Guarantee shall:
(a) extend to the ultimate balance from time to time owing to the
Secured Parties by the members of the Restricted Group and UPC
and shall be a continuing guarantee, notwithstanding any
settlement of account or other matter whatsoever;
(b) be in addition to any present or future Collateral Instrument,
right or remedy held by or available to the Secured Parties or
any of them; and
(c) not be in any way prejudiced or affected by the existence of
any such Collateral Instrument, rights or remedies or by the
same becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by the Secured
Parties or any of them dealing with, exchanging, varying or
failing to perfect or enforce any of the same or giving time
for payment or indulgence or compounding with any other person
liable.
9.7 New accounts
If this Guarantee ceases to be continuing for any reason whatsoever
each Secured Party may nevertheless continue any account of any member
of the Restricted Group or UPC or open one or more new accounts and the
liability of each Guarantor under this Guarantee shall not in any
manner be reduced or affected by any subsequent transactions or
receipts or payments into or out of any such account.
9.8 Liability unconditional
The liability of each Guarantor shall not be affected nor shall this
Guarantee be discharged or reduced by reason of:
(a) the Incapacity or any change in the name, style or constitution of any
Obligor or UPC or any other person liable; or
37
(b) any of the Secured Parties granting any time, indulgence or concession
to, or compounding with, discharging, releasing or varying the
liability of any other Obligor or UPC or any other person liable or
renewing, determining, varying or increasing any accommodation,
Facilities or transaction or otherwise dealing with the same in any
manner whatsoever or concurring in, accepting or varying any
compromise, arrangement or settlement or omitting to claim or enforce
payment from any Obligor or UPC or any other person liable; or
(c) any act or omission which would not have discharged or affected the
liability of such Guarantor had it been a principal debtor instead of
a guarantor or by anything done or omitted which but for this
provision might operate to exonerate such Guarantor.
9.9 Collateral Instruments
None of the Secured Parties shall be obliged to make any claim or
demand on the Borrowers or UPC or to resort to any Collateral
Instrument or other means of payment now or hereafter held by or
available to them or it before enforcing this Guarantee and no action
taken or omitted by any of the Secured Parties in connection with any
such Collateral Instrument or other means of payment shall discharge,
reduce, prejudice or affect the liability of any Guarantor under this
Guarantee nor shall any of the Secured Parties be obliged to apply any
money or other property received or recovered in consequence of any
enforcement or realisation of any such Collateral Instrument or other
means of payment in reduction of the Guaranteed Liabilities.
9.10 Waiver of Guarantors' rights
Until all the Guaranteed Liabilities have been paid, discharged or
satisfied in full (and notwithstanding payment of a dividend in any
liquidation or under any compromise or arrangement) each Guarantor
agrees that, without the prior written consent of the Agent, it will
not:
(a) exercise its rights of subrogation, reimbursement and indemnity
against any other Obligor or UPC or any other person liable; or
(b) demand or accept any security to be executed in respect of any of its
obligations under this Guarantee or any other Indebtedness now or
hereafter due to such Guarantor from any other member of the
Restricted Group or UPC or from any other person liable; or
(c) take any step or enforce any right against any Obligor or UPC or any
other person liable in respect of any Guaranteed Liabilities; or
(d) exercise any right of set-off or counterclaim against any other
Obligor or UPC or any other person liable or claim or prove or vote as
a creditor in competition with any of the Secured Parties in the
bankruptcy, liquidation, administration or other insolvency proceeding
of any other Obligor or UPC or any other person liable or have the
benefit of, or share in, any payment from or composition with, any
other Obligor or UPC or any other person liable or any other
Collateral Instrument now or hereafter held by any of the Secured
Parties of the Guaranteed Liabilities or for the obligations or
liabilities of any other person liable but so that, if so directed by
the Agent, it will prove for the whole or any part of its claim in the
liquidation of any other Obligor or UPC, as the case may be, on terms
that the benefit of such proof and of all money received by it in
respect thereof shall immediately be transferred to an account to be
designated by the Security Agent for the Secured Parties and applied
in or towards discharge of the Guaranteed Liabilities in accordance
with the Security Deed.
9.11 Suspense accounts
Any money received in connection with this Guarantee (whether before or
after any Incapacity of any Obligor or UPC) may be placed to the credit
of a suspense account with a view to preserving the rights of the
Secured Parties to prove for the whole of their respective claims
against any Obligor or UPC or any other person liable or may be applied
in or towards satisfaction of the Guaranteed Liabilities in accordance
with the Security Deed, save that if the amounts standing to the credit
of the suspense account are at least equal to the Guaranteed
Liabilities such amounts must be promptly applied in or towards
satisfaction of the Guaranteed Liabilities in accordance with the
Security Deed.
9.12 Settlements conditional
Any release, discharge or settlement between any Guarantor and any of
the Secured Parties shall be conditional upon no security, disposition
or payment to any of the Secured Parties by any Obligor or UPC or any
other person liable being void, set aside or ordered to be refunded
pursuant to any enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other reason whatsoever and if
such condition shall not be fulfilled the Secured Parties shall be
entitled to enforce this Guarantee subsequently as if such release,
discharge or settlement had not occurred and any such payment had not
been made.
38
9.13 Guarantors to deliver up certain property
If, contrary to clauses 9.4 or 9.10, any Guarantor takes or receives
the benefit of any security or receives or recovers any money or other
property, such security, money or other property shall be held on trust
for the Secured Parties and shall be delivered to the Security Agent on
demand.
9.14 Retention of this guarantee
The Secured Parties shall be entitled to retain this Guarantee until
the irrevocable and unconditional payment or discharge of all the
Guaranteed Liabilities and the reduction of the Total Commitments to
zero in accordance with this Agreement.
9.15 Changes in constitution or reorganisations of Secured Parties
For the avoidance of doubt and without prejudice to the provisions of
clause 18, this Guarantee shall remain binding on each Guarantor
notwithstanding any change in the constitution of the Secured Parties
or any of them or their or its absorption in, or amalgamation with or
the acquisition of all or part of their or its undertaking or assets
by, any other person, or any reconstruction or reorganisation of any
kind, to the intent that this Guarantee shall remain valid and
effective in all respects in favour of the Security Agent, and any
successor or additional Security Agent appointed pursuant to the
Security Deed for the benefit of each Secured Party in the same manner
as if such successor or additional Security Agent had been named in
this guarantee as a party instead of, or in addition to the Security
Agent.
9.16 Other Guarantors
Each Guarantor agrees to be bound by this Guarantee notwithstanding
that any other person intended to execute or to be bound by any other
guarantee or assurance under or pursuant to this Agreement may not do
so or may not be effectually bound and notwithstanding that such other
guarantee or assurance may be determined or be or become invalid or
unenforceable against any other person, whether or not the deficiency
is known to the Secured Parties or any of them.
9.17 Acceding Guarantors
(a) Unless UPCF would still be in compliance with clause 11.1(w) without
such entity becoming an Acceding Guarantor, UPCF shall procure that
each entity which becomes a direct or indirect Subsidiary of UPCF
after the date of this Agreement (whether or not it is a wholly owned
Subsidiary of UPCF), which is not an Unrestricted Subsidiary or
pursuant to the Restructuring, becomes an Acceding Guarantor, within
60 days of it becoming a Subsidiary of UPCF by delivering to the Agent
a Guarantor's Deed of Accession duly executed by such Subsidiary and
UPCF. If it would be unlawful for any such entity to become an
Acceding Guarantor it shall not be required to become an Acceding
Guarantor provided that UPCF procures that other members of the
Restricted Group become Acceding Guarantors in accordance with the
terms of this clause 9.17 within 60 days of UPCF becoming aware of
such unlawfulness so as to ensure compliance with clause 11.1(w).
(b) On or prior to the date of any transfer, sale or disposal by an
Obligor to a member of the Restricted Group which is not an Obligor,
UPCF shall deliver to the Agent a Guarantor's Deed of Accession duly
executed by such member of the Restricted Group and UPCF.
(c) UPCF shall procure that, at the same time as a Guarantor's Deed of
Accession is delivered to the Agent, there is delivered to the Agent
all the documents and evidence listed in schedule 9, part B in respect
of the relevant Subsidiary or member of the Restricted Group, as the
case may be, in each case in form and substance satisfactory to the
Agent acting reasonably provided that a Share Security, as referred to
in paragraph (b) of part B of schedule 9 and the relevant supporting
documentation shall not be required to be delivered to the Agent where
the relevant Subsidiary or member of the Restricted Group is becoming
a member of the Restricted Group other than to ensure compliance with
clause 11.1(w).
(d) Delivery of a Guarantor's Deed of Accession duly executed by an
Acceding Guarantor and UPCF constitutes confirmation by the relevant
Acceding Guarantor (with respect to itself only) that the
representations and warranties set out in clauses 10.1 and 10.2 to be
made by it on the date of the Guarantor's Deed of Accession in
accordance with clause 10.4 are correct as if made by it with
reference to the facts and circumstances then existing.
(e) Each Acceding Guarantor, before entering into such a Guarantor's Deed
of Accession, shall comply with all relevant legislation in its
country of incorporation, to the satisfaction of the Agent, to ensure
that the proposed guarantee to be given is in compliance with any
relevant provisions of such legislation and to ensure that the
proposed guarantee to be given is to be legal valid and binding on the
proposed Acceding Guarantor.
39
(f) Each Secured Party irrevocably authorises the Security Agent to
countersign each Guarantor's Deed of Accession on its behalf without
any further consent of, or consultation with, any of the other Secured
Parties.
(g) Each of the other Obligors irrevocably authorises UPCF to countersign
each Guarantor's Deed of Accession on its behalf without any further
consent of or consultation with, any of the other Obligors.
Representations and warranties
10.1 Repeated representations and warranties
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group represents and warrants to each of
the Secured Parties that:
(a) Due incorporation
all of the members of the Restricted Group which are not
Immaterial Subsidiaries are duly incorporated and validly
existing under the laws of the respective countries of their
incorporation and have power to carry on their respective
businesses as they are now being conducted and to own their
respective property and other assets;
(b) Power to borrow etc.
each Obligor has power to execute, deliver and perform its
obligations under this Agreement and the Security Documents to
which it is a party and, in the case of the Borrowers, to
borrow the Commitments; all necessary corporate, shareholder
and other action has been taken to authorise the execution,
delivery and performance of the same and no limitation on the
powers of the Borrowers to borrow or on the powers of any
Guarantor to give guarantees will be exceeded as a result of
borrowings under this Agreement, the issue of Telekabel Notes
or as a result of the giving of the Guarantee (in the case of
any Guarantor as limited, where appropriate, by clause 9.1);
(c) Binding obligations
this Agreement constitutes and any Telekabel Notes issued by
it and the Security Documents to which it is a party, when
executed and delivered by the relevant Obligor will
constitute, valid and legally binding obligations of such
Obligor enforceable in accordance with their respective terms
subject to the qualifications contained in the legal opinions
referred to in schedule 3 and mandatory provisions of law
affecting creditors rights generally;
(d) No conflict with other obligations
the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, this
Agreement, any Telekabel Notes and the Security Documents to
which it is a party by the Obligors will not (i) contravene in
any material respect any existing material applicable law,
statute, rule or regulation or any judgment, decree or permit
to which any Obligor is subject, (ii) conflict with, or result
in any material breach of any of the terms of, or constitute a
default under, any material agreement or other instrument to
which any Obligor is a party or is subject or by which it or
any of its property is bound, (iii) contravene or conflict
with any provision of any Obligor's constitutive documents or
(iv) save for the Encumbrances granted to the Secured Parties
pursuant to the Security Documents, result in the creation or
imposition of or oblige any member of the Restricted Group
which is not an Immaterial Subsidiary to create any
Encumbrance (other than a Permitted Encumbrance) on any member
of the Restricted Group's undertakings, assets, rights or
revenues;
(e) No litigation
save as set out in the Disclosure Letter, no litigation,
arbitration or administrative proceeding is taking place,
pending or, to the knowledge of the officers of any Obligor,
threatened against any member of the Restricted Group which is
not an Immaterial Subsidiary in which there is a reasonable
likelihood of an adverse determination, and which if adversely
determined against such member of the Restricted Group which
is not an Immaterial Subsidiary would or is reasonably likely
to have a Material Adverse Effect;
40
(f) Financial statements correct and complete:
(i) the audited consolidated financial statements of the UPC Group in
respect of the financial year ended on 31 December 1998 and the
financial statements of the relevant members of the Restricted Group
which have been used in the preparation of the pro forma unaudited
combined financial statements of the Restricted Group in respect of
the financial year ended on 31st December 1998, which consolidated
financial statements of the UPC Group and combined financial
statements of the Restricted Group have each been delivered to the
Agent, have been prepared in accordance with GAAP (except that the
combined financial statements for the Restricted Group do not include
all consolidated Subsidiaries to the extent that there are any
Unrestricted Subsidiaries) which principles have been consistently
applied and, in conjunction with the footnotes thereto, present fairly
in all material respects in accordance with GAAP the consolidated
financial position of the UPC Group and the combined financial
position of the Restricted Group respectively as at such date and the
consolidated results of the operations of the UPC Group and the
combined results of the operations of the Restricted Group
respectively for the financial year ended on such date; and
(ii) the unaudited Quarterly Management Accounts for the UPC Group and the
Restricted Group respectively in respect of the Quarterly Period ended
31st March 1999 as delivered to the Agent have been prepared in
accordance with GAAP (other than year end adjustments and absence of
footnotes) which principles have been consistently applied and present
fairly in all material respects in accordance with GAAP the results of
the operations of the UPC Group and the Restricted Group for such
Quarterly Period as at such date.
10.2 Further representations and warranties
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group further represents and warrants to
each of the Secured Parties that:
(a) Choice of law
the choice by the Obligors of English law to govern this
Agreement and any Telekabel Note and the submission by the
Obligors to the non-exclusive jurisdiction of the High Court
of Justice in England are valid and binding;
(b) Intellectual Property Rights:
(i) the Intellectual Property Rights owned by or licensed to each member
of the Restricted Group which is not an Immaterial Subsidiary are free
from material rights or interests in favour of third parties;
(ii) the Intellectual Property Rights owned by or licensed to each member
of the Restricted Group which is not an Immaterial Subsidiary are all
the Intellectual Property Rights required by them in order to carry
on, maintain and operate in all material respects their respective
businesses, properties and assets and no member of the Restricted
Group which is not an Immaterial Subsidiary in carrying on its
business, to its knowledge, infringes any Intellectual Property Rights
of any third party where any action taken by such third party in
respect of any such infringement would or is reasonably likely to have
a Material Adverse Effect; and
(iii)to the knowledge of the Obligor, no Intellectual Property Rights owned
by any member of the Restricted Group which is not an Immaterial
Subsidiary are being infringed, nor is there any threatened
infringement of any such Intellectual Property Rights which, in either
case would or is reasonably likely to have a Material Adverse Effect;
(c) Copyright matters
each member of the Restricted Group which is not an Immaterial
Subsidiary has obtained all consents and taken all other
action required in connection with the secondary transmission
by it of any broadcast television signals (other than where
failure to do so would or is reasonably likely to have a
Material Adverse Effect) and no member of the Restricted Group
which is not an Immaterial Subsidiary has any knowledge, nor
is it aware of any claim, that it is or may be liable to any
person for any copyright infringement of any nature whatsoever
as a result of the operation of its business which liability
would or is reasonably likely to have a Material Adverse
Effect;
41
(d) Environmental Matters
after due enquiry, no Environmental Claim is, to the knowledge
of any member of the Restricted Group which is not an
Immaterial Subsidiary, pending, threatened or existing which
has or is reasonably likely to have a Material Adverse Effect;
(e) Year 2000 Issue
there is an ongoing review of the effect of the Year 2000
Issue on the computer software, hardware and firmware systems
and equipment containing embedded microchips owned or operated
by or for each member of the Restricted Group which is not an
Immaterial Subsidiary or used or relied upon in the conduct of
the business of each member of the Restricted Group which is
not an Immaterial Subsidiary (including systems and equipment
supplied by others or with which such computer systems of such
member of the Restricted Group which is not an Immaterial
Subsidiary interface). The costs to the Restricted Group of
any reprogramming required in respect of the systems and
equipment owned or operated by any member of the Restricted
Group which is not an Immaterial Subsidiary as a result of the
Year 2000 Issue to permit the proper functioning of, and the
proper processing of data by such systems and equipment, and
the testing of such reprogramming, and of the reasonably
foreseeable consequences of the Year 2000 Issue to the
Restricted Group (including reprogramming errors and the
failure of systems or equipment supplied by others) are not
expected to result in an Event of Default or to have a
Material Adverse Effect;
(f) Shares
all shares issued by each member of the Restricted Group have
been validly allotted;
(g) Works councils
if any works council has been instituted by an Obligor, all
action has been taken by or in relation to such works council
necessary to authorise the performance by the Obligors of
their respective obligations under this Agreement and the
Security Documents;
(h) No Default
no Default has occurred and is continuing.
10.3 First Drawing representations and warranties
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group further represents and warrants to
each of the Secured Parties as at the date of the first Drawing or, in
the case of clause 10.3(h) only, as at the date of the Information
Memorandum, that:
(a) No filings required
save for the filings, registrations and notarisations obtained
by the relevant Obligor referred to in the legal opinions
referred to in schedule 3 and subject to any reservations
contained in such legal opinions, it is not necessary to
ensure the legality, validity, enforceability or admissibility
in evidence of this Agreement, any Telekabel Note or the
Security Documents that any of them or any other instrument be
notarised, filed, recorded, registered or enrolled in any
court, public office or elsewhere in any Relevant Jurisdiction
or that any stamp, registration or similar tax or charge be
paid in any Relevant Jurisdiction on or in relation to this
Agreement, any Telekabel Notes or any of the Security
Documents and this Agreement, the Telekabel Notes and the
Security Documents are in proper form for their enforcement in
the courts of any Relevant Jurisdiction;
(b) Principal Agreements:
(i) the Principal Agreements which have been entered into
on or prior to the date of this Agreement are in full
force and effect; and
(ii) save as set out in the Disclosure Letter, to the best
of its knowledge and belief after due enquiry, (1) no
party is in breach of any material term thereof and
(2) there is no material dispute subsisting between
the parties thereto;
42
(c) Compliance with laws
to the best of its knowledge and belief after due enquiry,
each member of the Restricted Group which is not an Immaterial
Subsidiary is in compliance in all material respects with all
material laws (including Telecommunications and Cable Laws)
applicable to it but excluding, for these purposes only,
breaches of Telecommunications and Cable Laws which have been
expressly waived by the relevant regulatory authority;
(d) No material adverse change
there has been no material adverse change in the consolidated
financial position of the Restricted Group from that set forth
in the financial statements referred to in clause 10.1(f)(i)
and (ii) which in the reasonable opinion of the Agent would or
is reasonably likely to have a Material Adverse Effect;
(e) No dividends
save as set out in the Disclosure Letter, since 31st December
1998, no dividends (in cash or specie) of UPCF, Xxxxx, Radio
Public, CNA, Eurosat SRL, Kabel Net Holding AS, Kabel Net Brno
AS or Belmarken or any other rights or benefits have been
declared, made or paid by UPCF, Xxxxx, Radio Public, CNA,
Eurosat SRL, Kabel Net Holding AS, Kabel Net Brno AS or
Belmarken;
(f) Title to assets
save as set out in the Disclosure Letter, each member of the
Restricted Group which is not an Immaterial Subsidiary (i) is
the legal and/or beneficial owner of the percentage
shareholding in each company shown on the structure chart set
out in part A of schedule 13 in relation to which it is shown
as a shareholder and (ii) is the legal and/or beneficial owner
of or has the legal right to use all its material assets;
(g) Consents obtained
every material consent, authorisation, licence or approval of
or registration with or declaration to, governmental or public
bodies or authorities of courts (other than Necessary
Authorisations) required (subject to the reservations outlined
in the legal opinions referred to in schedule 3) by each
member of the Restricted Group which is not an Immaterial
Subsidiary to authorise, or required by any member of the
Restricted Group which is not an Immaterial Subsidiary in
connection with, the execution, delivery, validity,
enforceability or admissibility in evidence in its Relevant
Jurisdiction of this Agreement, any Telekabel Notes and the
Security Documents to which it is a party or the performance
by each member of the Restricted Group which is not an
Immaterial Subsidiary of their respective obligations under
this Agreement, any Telekabel Notes and the Security Documents
to which they are a party has been obtained or made and is in
full force and effect and there has been no material default
in the observance of the conditions or restrictions (if any)
imposed in, or in connection with, any of the same;
(h) Information Memorandum
to the best of the Borrowers' knowledge after due inquiry,
as of the date of the Information Memorandum:
(i) the factual information relating to the Restricted
Group contained in the Information Memorandum is
accurate in all material respects;
(ii) all projections and forecasts contained in the
Information Memorandum were based on and arrived at
after due and careful consideration and have been
prepared by the Borrowers on the basis of assumptions
that the Borrowers believed were reasonable as of the
date of the projections;
(iii) there are no material facts or circumstances which
have not been disclosed to the Banks in writing prior
to the date of the Information Memorandum and which
would make any material factual information referred
to in (i) above untrue, inaccurate or misleading in
any material respect as at the date of the
Information Memorandum, or any such opinions,
projections, or assumptions referred to in (ii) above
misleading in any material respect as at the date of
the Information Memorandum,
43
Notwithstanding the above, no representation is made in
respect of (i) any information, facts, statements, opinions,
projections, forecasts, demographic statistics or
circumstances relating to the cable, media, telecommunications
and data services industry as a whole, (ii) the research
reports contained in Book Two of the Information Memorandum
and (iii) any person other than any member of the Restricted
Group. Further the Information Memorandum in respect of the
High Yield Notes contained in Book 2 of the Information
Memorandum was prepared after Book 1 of the Information
Memorandum and as consequence may contain more up to date
information about members of the Restricted Group;
(i) Environmental Matters
each Obligor and other member of the Restricted Group which is
not an Immaterial Subsidiary complies, in all respects, with
all requirements of Environmental Laws where failure to do so
has or is reasonably likely to have a Material Adverse Effect;
(j) No Immunity
no member of the Restricted Group other than Immaterial
Subsidiaries nor any of their respective assets is entitled to
immunity on the grounds of sovereignty from any legal action
or proceedings (which shall include, without limitation, suit,
attachment prior to judgment, execution or other enforcement);
(k) Financial Projections
the combined financial projections for the Restricted Group
for the financial years ending 1999 to 2007 inclusive, the
operating statistics projections for such financial years and
the Management Base Case have been prepared based upon
historical financial information and upon the assumptions set
forth therein, which assumptions were reasonable at such time;
and
(l) Licences
save as set out in the Disclosure Letter, each member of the
Restricted Group which is not an Immaterial Subsidiary has
secured all Licences being those necessary for the Permitted
Business in Belgium, Austria, Norway and Hungary, all such
Licences are in full force and effect and each member of the
Restricted Group which is not an Immaterial Subsidiary is in
compliance in all material respects with all provisions
thereof. To the best of its knowledge and belief after due
enquiry, none of such Licences are the subject of any pending
proceedings or revocation.
10.4 Repetition
The representations and warranties in (i) clause 10.1 (so that (a) the
representation and warranty in clause 10.1 (f)(i) shall for this
purpose refer to the then latest audited consolidated financial
statements of UPCF verified by the auditors to the Restricted Group and
delivered to the Agent under clause 11.1 and to any annual audited
combined financial statements of the Restricted Group required to be
produced under clause 11.1 and (b) the representation and warranty in
clause 10.1 (f)(ii) shall for this purpose refer to the then latest
Quarterly Management Accounts delivered to the Agent under clause 11.1
and to any combined Quarterly Management Accounts of the Restricted
Group required to be produced under clause 11.1) and (ii) clause 10.2,
shall be deemed to be repeated by the Obligors on and as of each
Drawdown Date as if made with reference to the facts and circumstances
existing on each such date unless, in the case of a Revolving Drawing
to be drawn on such Drawdown Date, such Revolving Drawing would not, if
drawn, cause the aggregate Euro Amount of Revolving Drawings to exceed
the aggregate Euro Amount of Revolving Drawings outstanding immediately
prior to the making of that Revolving Drawing (after taking into
account any Revolving Drawing due or due to be made or repaid on the
Drawdown Date of such Revolving Drawing). In the case of an Obligor
which becomes a party to this Agreement after the date hereof the
representations and warranties in clause 10.1 (amended as set out
above) and clause 10.2 (where applicable, in respect of itself only),
shall be deemed to be made by that Obligor on the date that it executes
a Guarantor's Deed of Accession as if made with reference to the facts
and circumstances existing on such day.
44
Undertakings
11.1 Positive covenants
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group undertakes with each of the Secured
Parties that, from the date of this Agreement and so long as any moneys
are owing under this Agreement or remain available for drawing by the
Borrowers, it will:
(a) Notice of Default etc.
procure that the Agent is promptly informed of (i) any Default
and any potential breach of any of the undertakings set out in
clause 12 forthwith upon becoming aware thereof and will from
time to time, if so requested by the Agent, confirm to the
Agent in writing that, save as otherwise stated in such
confirmation, no Default has occurred and is continuing, (ii)
(to the extent known to any member of the Restricted Group
which is not an Immaterial Subsidiary) the commencement of all
proceedings and investigations by or before any governmental
body and all actions and proceedings in any court or before
any arbitrator where any such proceedings, investigations or
actions would, if adversely determined, have a Material
Adverse Effect and (iii) any material dispute under any
Principal Agreement where the other party to such Principal
Agreement has threatened to terminate or cancel such Principal
Agreement or withdraw services provided pursuant to such
Principal Agreement;
(b) Consents and licences
without prejudice to clauses 3 and 10.3, ensure that all
action required to be taken by or in relation to any works
council in relation to the Finance Documents is taken promptly
and, for the avoidance of doubt, excluding such consents,
licences and registrations required for the construction,
installation and operation of the Cable Systems, obtain or
cause to be obtained, maintain in full force and effect and
comply in all material respects with the material conditions
and restrictions (if any) imposed in, or in connection with,
every consent, authorisation, licence, registration or
approval of governmental or public bodies or authorities or
courts and do, or cause to be done, all other acts and things
which may from time to time be necessary under applicable law
for the continued due performance of all its material
obligations under this Agreement and the Security Documents;
(c) Use of proceeds
use the proceeds of drawings under this Agreement
exclusively for the purposes specified in clause 1.1;
(d) Pari passu
ensure that its obligations under this Agreement and any
Telekabel Note shall, without prejudice to the provisions of
clause 11.2 or to the security intended to be created pursuant
to the Security Documents, at all times rank at least pari
passu with all its other present and future unsecured and
unsubordinated Indebtedness with the exception of any
obligations which are mandatorily preferred by law and not by
contract;
(e) Business
engage solely in the Permitted Business and in the business of
acting as the holder of shares and/or interests in other
members of the Restricted Group (which shall include the
raising of Permitted Borrowings and the on-lending of such
Borrowed Money to its Subsidiaries in accordance with the
provisions of this Agreement and the entry into of hedging
arrangements on behalf of its Subsidiaries);
45
(f) Financial statements
(i) (in the case of UPCF) prepare annual audited consolidated financial
statements of UPCF in accordance with GAAP and cause such financial
statements to be reported on by its auditors and deliver to the Agent
sufficient copies of the same together with the annual financial
statements of each of Radio Public (unconsolidated), the Telekabel
Austrian Entities (consolidated), Stipdon (consolidated), Xxxxx
(unconsolidated) and each Acceding Guarantor, used in the preparation
of the annual audited consolidated financial statements of UPCF, for
distribution to all of the Banks as soon as practicable but not later
than 120 days (or 150 days if UPC or UPCF is in active discussions
with its auditors and if such financial statements of UPCF would have
been subject to a qualification (other than a qualification of a
technical nature and the remedy for the matter giving rise to the
qualification would have no effect on the results of the relevant
members of the Restricted Group for the period to which such financial
statements relate or on the financial position of the relevant member
of the Restricted Group as at the end of such period) if delivered
within 120 days) after the end of the financial year to which they
relate provided that if at the end of the relevant financial year,
UPCF and its Subsidiaries does not constitute the Restricted Group,
UPCF shall also prepare annual audited combined financial statements
in respect of the Restricted Group in accordance with GAAP other than
by reason of the Unrestricted Subsidiaries being excluded in relation
to the same period as the annual audited consolidated financial
statements of UPCF and deliver to the Agent copies of such financial
statements in accordance with the foregoing provisions of this clause
11.1(f))i); and
(ii) procure that sufficient copies for all the Banks of the consolidated
financial statements of UPC and its Subsidiaries in respect of each
fiscal year and quarterly period on forms 10Q and 10K (respectively)
as delivered to the Securities and Exchange Commission are delivered
to the Agent within 120 days of the end of each fiscal year and 45
days of the end of each quarterly period;
(g) Quarterly Management Accounts
(in the case of UPCF) in respect of each Quarterly Period
commencing with the Quarterly Period ending 30th June, 1999
prepare unaudited consolidated Quarterly Management Accounts
in respect of UPCF in accordance with GAAP but without
footnotes and subject to normal year end adjustments and
deliver a copy of the same to the Agent together with the
Quarterly Management Accounts of each of Radio Public
(unconsolidated), the Telekabel Austrian Entities
(consolidated), Stipdon (consolidated), Xxxxx (unconsolidated)
and each Acceding Guarantor, used in the preparation of the
Quarterly Management Accounts of UPCF for distribution to all
of the Banks as soon as practicable but not later than 45 days
after the Quarterly Period to which they relate (except in
relation to the Quarterly Management Accounts in respect of
the Quarterly Period ended 30 June 1999 which shall be
delivered to the Agent as soon as practicable but not later
than 75 days after such Quarterly Period) provided that if at
the end of the relevant Quarterly Period, UPCF and its
Subsidiaries does not constitute the Restricted Group, UPCF
shall also prepare combined Quarterly Management Accounts in
respect of the Restricted Group in relation to the same
Quarterly Period in accordance with GAAP other than by reason
of the Unrestricted Subsidiaries being excluded and deliver a
copy of the same to the Agent for distribution to all of the
Banks as soon as practicable but not later than 45 days after
the Quarterly Period to which they relate;
(h) Monthly information
(in the case of UPCF) in respect of each calendar month
commencing with August 1999, prepare unaudited Monthly
Information for each of:
(i) Radio Public (unconsolidated),
(ii) the Telekabel Austrian Entities (consolidated),
(iii) Stipdon (consolidated),
(iv) Xxxxx (unconsolidated),
(v) each Acceding Guarantor (unconsolidated); and
(vi) the Restricted Group (combined)
and deliver a copy of the same to the Agent for distribution
to all of the Banks as soon as practicable but not later than
45 days after the calendar month to which they relate;
46
(i) Delivery of reports
deliver to the Agent, for distribution to the Banks, in each
case at the time of issue thereof or (in the case of the
Compliance Certificates referred to in (i) below) together
with the audited financial statements prepared in respect of
each financial year (in the case of a Compliance Certificate
from the auditors of the Restricted Group) delivered pursuant
to clause 11.1(f)(i) or Quarterly Management Accounts prepared
in respect of each Quarterly Period (in the case of a
Compliance Certificate from an Authorised Officer) delivered
pursuant to clause 11.1(g) in respect of the financial period
to which such Compliance Certificate relates:
(i) a Compliance Certificate from the auditors of the
Restricted Group in respect of each financial year
and an Authorised Officer of UPCF or UPC in respect
of each Quarterly Period;
(ii) an Annual Budget for each financial year for the
Restricted Group no later than the last day of the
preceding financial year;
(j) Change in basis of accounts
(in the case of UPCF) ensure that all financial statements
delivered under clause 11.1(f) are prepared in accordance with
GAAP and in accordance with the accounting principles and
practices used in the preparation of the financial statements
referred to in clause 10.1(f) and the 1999 Budget, including,
without limitation, the cost capitalisation policy used
therein, (the "Original Basis") consistently applied in
respect of each financial year unless to do so would be
inconsistent with then current GAAP (the "New Basis"). If the
preparation of financial statements on the Original Basis is
contrary to the New Basis then UPCF shall promptly notify the
Agent in writing of the relevant change and (at the option of
UPCF) shall either (1) prepare and deliver to the Agent
audited financial statements on both the Original Basis and
the New Basis (or shall prepare and deliver financial
statements on the New Basis only but shall also prepare and
deliver an audited reconciliation statement (a "Reconciliation
Statement") showing those adjustments necessary in order to
reconcile the financial statements produced on the New Basis
to the Original Basis) or (2) request the Agent to enter into
good faith negotiations for such amendments (if any) as are
necessary to the covenants contained in clause 12.1 and any
other provisions of this Agreement affected by such change, in
which event the Agent will enter into such negotiations for a
period of not more than 60 days. If agreement is reached
between UPCF and the Agent (acting on the instructions of the
Majority Banks) within such period as to the amendment of any
such covenants or provisions, then the parties hereto will
enter into such documentation and take such other steps as are
required to put such amendments into effect following which
UPCF shall then be obliged to produce financial statements on
the New Basis only. If no such agreement is reached then UPCF
shall be obliged to prepare and deliver financial statements
on both the Original Basis and the New Basis (or shall prepare
and deliver audited financial statements on the New Basis
accompanied by a Reconciliation Statement).
Where UPCF is under an obligation to deliver financial
statements under clause 11.1(f) on both the Original Basis and
the New Basis (or on the New Basis but accompanied by a
Reconciliation Statement), Monthly Information and Quarterly
Management Accounts shall also be delivered on both bases or
on the New Basis but accompanied by a Reconciliation
Statement.
All financial statements, Quarterly Management Accounts,
Monthly Information and Reconciliation Statements delivered
pursuant to this clause 11.1 (j) shall be delivered within the
relevant time periods set out in clause 11.1.
The provisions of this clause 11.1 (j) shall also apply,
mutatis mutandis, to the preparation and delivery of the
Annual Budget under clause 11.1 (i)(ii);
(k) Financial Year End
maintain a financial year end of 31 December for each member
of the Restricted Group save with the prior written consent of
the Agent acting on the instructions of the Majority Banks;
47
(l) Authorised Officers
ensure that any new or replacement Authorised Officer has
provided the Agent with evidence satisfactory to it of such
new officer(s)' authority and a specimen of his or their
signature(s) prior to signing any Compliance Certificates,
Drawdown Notices, or any other notices, requests or
confirmations referred to in this Agreement, any Telekabel
Notes or relating to the Facilities;
(m) Auditors
ensure that Xxxxxx Xxxxxxxx & Co. is appointed as auditor of
each member of the Restricted Group, in the case of any member
of the Restricted Group which is acquired after the date of
this Agreement, as soon as practicable following such
acquisition, and not change such appointment without
appointing a major accounting firm of recognised international
standing and repute;
(n) Provision of further information
provide the Agent with such financial and other information
concerning each member of the Restricted Group which is not an
Immaterial Subsidiary and their respective affairs as the
Agent or any Bank (acting through the Agent) may from time to
time reasonably request;
(o) Insurance
maintain insurance cover of a type and level which a prudent
company in the same business would effect;
(p) Inspection
if required by the Agent (acting on the instructions of the
Majority Banks), at any time whilst an Event of Default is
continuing, permit, to the extent it is able to do so,
representatives of the Agent or any of the Banks upon
reasonable prior written notice to UPCF or its relevant
Subsidiary, after having made arrangements with UPCF so to do
and after entering into a confidentiality undertaking if
reasonably required by UPCF (a) visit and inspect the
properties of any member of the Restricted Group which is not
an Immaterial Subsidiary during normal business hours, (b)
inspect its books and records other than records which the
relevant member of the Restricted Group is prohibited by law
or contract from disclosing to the Agent and/or any relevant
Bank and (c) discuss with its principal officers and auditors
its business, assets, liabilities, financial position, results
of operations and business prospects provided that any such
discussion with the auditors shall only be on the basis of the
audited accounts of the Restricted Group and Compliance
Certificates issued by the auditors;
(q) Compliance with laws and regulations
comply with the terms and conditions of all laws (excluding
Telecommunications and Cable Laws), regulations, agreements,
licences and including, without limitation, all Environmental
Laws and all Environmental Licences if the failure to comply
therewith, would or is reasonably likely to have a Material
Adverse Effect;
(r) Taxes
file or cause to be filed all tax returns required to be filed
in all jurisdictions in which it is situated or carries on
business or is otherwise subject to Taxation and will pay all
Taxes shown to be due and payable on such returns or any
assessments made against it within the period stipulated for
such payment (other than those being contested in good faith);
(s) Agreed Hedging Programme
with effect from such time as three months EURIBOR exceeds
4.25 per cent. per annum procure that any one or more of the
Obligors maintain interest rate protection arrangements with a
Bank or an Affiliate of a Bank (or any other bank or financial
institution, provided that such bank or financial institution
provides such interest rate protection arrangements on an
unsecured and unguaranteed basis), on a rolling forward not
less than two year basis in respect of at least 50 per cent.
of the then forecast amount of the Loan, which interest rate
protection arrangements have the effect of fixing the maximum
rate of interest payable (excluding the Margin and any other
associated costs) by the Borrowers within 200 basis points of
three month EURIBOR (as at the date that the relevant
arrangements come into effect) for the relevant currency;
48
(t) Necessary Authorisations
comply with the terms and conditions of all Telecommunications
and Cable laws if the failure to comply therewith would or is
reasonably likely, in the opinion of the Agent acting on the
instructions of the Majority Banks (acting reasonably) to have
a Material Adverse Effect and to obtain or cause to be
obtained, every material consent, authorisation, licence or
approval of or registration with or declaration to,
governmental or public bodies or authorities or courts in any
Relevant Jurisdiction necessary for the construction,
installation or operation of the Cable Systems (including,
without limitation, the Licences and the Necessary
Authorisations) and (A) ensure that none of the same (to the
extent that it is required to enable any member of the
Restricted Group (other than an Immaterial Subsidiary) to
carry on its business) is revoked, cancelled, suspended,
withdrawn, terminated, expires and is not renewed or otherwise
ceases to be in full force and effect without a new one having
first been put in place with a member of the Restricted Group
(other than an Immaterial Subsidiary) on substantially
identical terms, on terms more beneficial to the Restricted
Group or on terms then required by the relevant governmental
or public body or authority or court in the Relevant
Jurisdiction where failure to take such action would or is
reasonably likely to have a Material Adverse Effect in the
opinion of the Agent acting on the instructions of the
Majority Banks (acting reasonably) and (B) ensure that none of
the same is modified in any respect (other than modifications
of the same so that following such modification the same is on
terms more beneficial to the Restricted Group (other than an
Immaterial Subsidiary) or required by the relevant
governmental or public body or authority or court in the
Relevant Jurisdiction) and that no member of the Restricted
Group (other than an Immaterial Subsidiary) commits any
default in the observance of the conditions or restrictions
(if any) imposed in, or in connection with, any of the same
which, in the case of any of the events listed in this
sub-paragraph (B), in the opinion of the Agent acting on the
instructions of the Majority Banks (acting reasonably), would
or is reasonably likely to have a Material Adverse Effect;
(u) Subordination of loans from Subordinated Creditor
procure that prior to any Relevant Person making any Borrowed
Money (other than Permitted Payments) available to any member
of the Restricted Group, which Borrowed Money will only be
made available to a member of the Restricted Group through an
Obligor, such Relevant Person shall enter into a Relevant
Person Pledge of Shareholder Loans on terms and conditions
satisfactory to the Agent and a Security Provider's Deed of
Accession and provides the Agent with such documents and
evidence as it may reasonably require as to the power and
authority of the Relevant Person to enter into such Relevant
Person Pledge of Shareholder Loans and Security Provider's
Deed of Accession and that the same constitute valid and
legally binding obligations of such Relevant Person
enforceable in accordance with their terms subject (to the
extent applicable) to substantially similar qualifications to
those made in the legal opinions referred to in schedule 3;
(v) UPCF debt to be reduced first
(in the case of UPCF) it shall ensure that during the
Reduction Period and in making any prepayment pursuant to
clause 6.4 or clause 6.6, and so long as such action does not
result in any adverse taxation, legal or other material
consequences, the aggregate of the Drawings outstanding to
UPCF shall be reduced in accordance with the terms of this
Agreement in preference to the aggregate of the Drawings
outstanding to any other Borrower by procuring, where
appropriate, that members of the Restricted Group make
intercompany loans directly or indirectly to UPCF to enable
the relevant Drawings made to UPCF under this Agreement to be
repaid as required by clause 6 provided that (i) this clause
shall not require Telekabel Wien to make any loans to CNA or
other members of the Restricted Group incorporated in Austria
except in accordance with Austrian law and shall not require
or permit Telekabel Wien to make any loans to any other person
other than CNA or other members of the Restricted Group
incorporated in Austria and (ii) shall not require any member
of the Restricted Group which is not a party to the Borrower
Pledge of Shareholder Loans to accede to the Borrower Pledge
of Shareholder Loans solely by reason of it making an
intercompany loan to UPCF or another member of the Restricted
Group for the purposes referred to in this clause 11.1(v);
49
(w) Obligor Group
ensure that the combined, consolidated total assets,
consolidated revenues and consolidated EBITDA of each Borrower
and its Subsidiaries as at the date of this Agreement, each
Original Guarantor and its Subsidiaries as at the date of this
Agreement and each Acceding Guarantor and its Subsidiaries as
at the date on which it became a Guarantor (other than
Unrestricted Subsidiaries) is not less than 90 per cent. of
the consolidated total assets, consolidated revenues and
consolidated EBITDA of the Restricted Group. For the purposes
of this clause 11.1(w) the consolidated revenues and
consolidated EBITDA of the Restricted Group or any Obligor
shall be determined by reference to the 12 month period ending
on the most recent Quarter Day in respect of which Quarterly
Management Accounts have been delivered to the Agent under
this Agreement and consolidated total assets shall be
determined as at such Quarter Day by reference to such
Quarterly Management Accounts. In determining compliance with
the undertaking contained in this clause 11.1(w) following any
acquisition by a member of the Restricted Group, the
consolidated revenues and consolidated EBITDA of the
Restricted Group shall be adjusted to take account of the
revenues and EBITDA attributable to the acquisition in respect
of the 12 month period ending on such Quarter Day and the
consolidated total assets of the Restricted Group shall be
adjusted to take account of the total assets attributable to
such acquisition as at such Quarter Day;
(x) Shareholdings and Unrestricted Subsidiaries
notify the Agent in writing at the time of delivery of each
Compliance Certificate by an Authorised Officer of UPCF or UPC
of (i) any changes to the structure chart set out in part B of
schedule 13 and (ii) the identity of each Unrestricted
Subsidiary;
(y) Inter-connection and chello
ensure that each member of the Restricted Group which is not
an Immaterial Subsidiary (i) which offers residential and/or
business telephony services in any country maintains
inter-connection arrangements with one or more major fixed
line telephony operators in that country and (ii) which offers
internet and/or data services is provided with such services
by chello broadband N.V. (or if chello broadband N.V. does not
offer such services, by another provider on arm's length
commercial terms provided that as soon as chello broadband
N.V. does offer such services, such member of the Restricted
Group shall be provided with such services by chello broadband
N.V. on terms no less favourable to the relevant member of the
Restricted Group to those being offered by its existing
provider);
(z) Restructuring
(in the case of UPCF) ensure that:
(i) notwithstanding anything to the contrary in this Agreement, the
Restructuring, so far as it affects members of the Restricted Group
which are incorporated in Western Europe, is completed within 3 months
of the date hereof, and so far as it affects members of the Restricted
Group which are incorporated in Eastern Europe, is completed within
six months of the date hereof and that the Agent is promptly notified
of the completion of the Restructuring; and
(ii) in respect of any Obligor whose shares are subject to an existing
pledge or charge in favour of the Security Agent and which is
transferred as part of the Restructuring, any member of the Restricted
Group which holds shares in such company as a result of the
Restructuring enters into a pledge or charge in favour of the Security
Agent in respect of such shares of at least an equivalent nature and
ranking to the existing pledge or charge and provides the Agent with
such evidence as it may reasonably request as to the power and
authority of such member of the Restricted Group to enter into the
pledge or charge and that such pledge or charge constitutes valid and
legally binding obligations of such party enforceable in accordance
with its terms subject (to the extent applicable) to substantially
similar qualifications to those made in the legal opinions referred to
in schedule 3.
50
(aa) Shareholder Loans
(in the case of UPCF) ensure that:
(i) each Subordinated Shareholder Loan and each shareholder loan entered
into between a member of the Restricted Group which is a party to the
Borrower Pledge of Shareholder Loans as a creditor and a Subsidiary of
such member of the Restricted Group is governed by the law of The
Netherlands;
(ii) any member of the Restricted Group (other than the Telekabel Austrian
Entities) which operates or is incorporated in Western Europe accedes
to the Borrower Pledge of Shareholder Loans prior to making a
shareholder loan to any other member of the Restricted Group and
provides the Agent with such evidence as it may reasonably request as
to the power and authority of such member of the Restricted Group to
accede to the Borrower Pledge of Shareholder Loans and that the
Borrower Pledge of Shareholder Loans constitutes valid and legally
binding obligations of such party enforceable in accordance with its
terms subject (to the extent possible) to substantially similar
qualifications to those made in the legal opinions referred to in
schedule 3; and
(iii)any member of the Restricted Group (other than the Telekabel Austrian
Entities) which operates or is incorporated in Western Europe provides
a notification of pledge to the Security Agent in respect of any
shareholder loan made to it;
(bb) First Hungary Fund Shares
if any member of the Restricted Group acquires all or any part
of the shareholding in Telekabel Hungary owned by The First
Hungary Fund it shall as soon as practicable after such
acquisition enter into a pledge or charge in favour of the
Security Agent in respect of such shares in substantially the
form of the Telekabel Hungary Share Security and shall provide
the Agent with such evidence as it may reasonably request as
to the power and authority of such member of the Restricted
Group to enter into such pledge or charge and that such pledge
or charge constitutes valid and legally binding obligations of
such member of the Restricted Group enforceable in accordance
with its terms subject (to the extent possible) to
substantially similar qualifications to those made in the
legal opinions referred to in schedule 3;
11.2 Negative covenants
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group undertakes with each of the Secured
Parties that, from the date of this Agreement and so long as any moneys
are owing under this Agreement or remain available for drawing by the
Borrowers, without the prior written consent of the Agent acting on the
instructions of the Majority Banks:
(a) Negative pledge
it will not permit any Encumbrance (other than the Permitted
Encumbrances) by any member of the Restricted Group to
subsist, arise or be created or extended over all or any part
of their respective present or future undertakings, assets,
rights or revenues to secure or prefer any present or future
Indebtedness of any member of the Restricted Group or any
other person;
(b) No merger
it will not merge or consolidate with any other company or
person and it will procure that no member of the Restricted
Group merges or consolidates with any other company or person
save for mergers between any members of the Restricted Group
with (i) any or all of the other members of the Restricted
Group or (ii) an Unrestricted Subsidiary ("Original Entities")
into one or more entities (each a "Merged Entity") provided
that:
(i) reasonable details of the proposed merger in order to demonstrate
satisfaction with paragraphs (ii) to (v) below are provided to the
Agent at least 10 days before the merger is to be entered into and, if
the proposed merger is between any members of the Restricted Group and
an Unrestricted Subsidiary, UPCF has delivered to the Agent financial
projections based on assumptions which are no more aggressive than
those used in the preparation of the Information Memorandum which
demonstrate that the Restricted Group will be in compliance with the
undertakings set out in clause 12.1 for the period commencing on the
date of merger and ending on the Final Repayment Date;
51
(ii) such Merged Entity will be a member of the Restricted Group and will
be liable for the obligations of the relevant Original Entities
(including the obligations under this Agreement and the Security
Documents) which obligations remain unaffected thereby and entitled to
the benefit of all the rights of such Original Entities;
(iii)such Merged Entity has entered into Security Documents (if applicable)
which provide security over the same assets of at least an equivalent
nature and ranking to the security provided by the relevant Original
Entities pursuant to any Security Documents entered into by them and
any possibility of the Security Documents referred to in this
paragraph or paragraph (iv) below being challenged or set aside is not
materially greater than any such possibility in relation to the
Security Documents entered into by or in respect of the share capital
of any relevant Original Entity;
(iv) (if all or any part of the share capital of any of the relevant
Original Entities was charged pursuant to a Security Document) the
equivalent part of the issued share capital of such Merged Entity is
charged pursuant to a Security Document on terms of at least an
equivalent nature and equivalent ranking as any Security Document
relating to the shares in each relevant Original Entity; and
(v) that all the property and other assets of the relevant Original
Entities are vested in the Merged Entity and that the Merged Entity
has assumed all the rights and obligations of the relevant Original
Entities under any relevant Principal Agreements, material Necessary
Authorisations, Licences and other licences or registrations (to the
extent reasonably necessary for the business of the relevant Original
Entities) granted in favour of the Original Entities under
Telecommunications and Cable Laws and/or all such rights and
obligations have been transferred to the Merged Entity and/or the
relevant Principal Agreements, Necessary Authorisations, Licences and
other licences or registrations (to the extent reasonably necessary
for the business of the relevant Original Entities) granted in favour
of the Original Entities under Telecommunications and Cable Laws have
been reissued to the Merged Entity;
(c) Disposals
it will not and will procure that no other member of the
Restricted Group (other than an Immaterial Subsidiary) will
sell, transfer, lend or otherwise dispose of or cease to
exercise direct control over any part of its present or future
undertaking, assets, rights or revenues whether by one or a
series of transactions related or not (other than Permitted
Disposals);
(d) Intra Group accounts
(without limiting the generality of and subject to the
exceptions set out in clause 11.2(c)) it will not (other than
pursuant to the Security Documents) subordinate, postpone,
defer, assign or otherwise dispose of or deal with, any
Indebtedness owing to it by any member of the Restricted Group
and will procure that no member of the Restricted Group (other
than an Immaterial Subsidiary) will subordinate, postpone,
defer, assign or otherwise dispose of or deal with, any
Indebtedness owing to it by any other member of the Restricted
Group save as required pursuant to this Agreement for the
benefit of the Secured Parties provided that this clause
11.2(d) shall not restrict the repayment by one member of the
Restricted Group of Indebtedness owed to another member of the
Restricted Group or any assignment or disposal of any Borrowed
Money owing by one member of the Restricted Group to another
provided that following such assignment or disposal such
Borrowed Money would be permitted by clause 11.2(e);
(e) Loans and guarantees
it will not, and will procure that no member of the Restricted
Group will, make any loans, grant any credit or give any
guarantee to or for the benefit of, or enter into any
transaction having the effect of lending money with, any
person other than (i) loans from a member of the Restricted
Group which is a party to the Borrower Pledge of Shareholder
Loans to another member of the Restricted Group provided that
(1) loans from one Borrower to another Borrower shall not be
permitted and none of Xxxxx, CNA or Telekabel Wien may enter
into any loan with another member of the Restricted Group save
that Telekabel Wien may make loans to other Telekabel Austrian
52
Entities, and (2) any loan made by a member of the Restricted
Group to another member of the Restricted Group which has not
given a notification of pledge to the Security Agent shall be
made through a member of the Restricted Group which has given
a notification of pledge to the Security Agent, (ii) normal
trade credit in the ordinary course of business, (iii) loans
to employees or directors of the relevant member of the
Restricted Group for any purpose, including for the purpose of
meeting tax liabilities in connection with Approved Stock
Options in a maximum aggregate amount during the Finance
Period of Euro 15,000,000, (iv) as permitted by clause
11.2(f), (v) guarantees given (1) by any Obligor in respect of
the liabilities of another Obligor, or (2) by a member of the
Restricted Group in respect of the liabilities of an Obligor
or, (3) by an Obligor in respect of the liabilities of another
member of the Restricted Group (which is not an Obligor)
provided that such member of the Restricted Group becomes an
Acceding Guarantor on, or prior to, the giving of such
guarantee in accordance with clause 9.17 or, (4) by a member
of the Restricted Group (which is not an Obligor) in respect
of the liabilities of another member of the Restricted Group
(which is not an Obligor) or (vi) to the extent that the same
constitute Permitted Payments;
(f) Borrowed Money
it will not and will procure that no other member the
Restricted Group (other than an Immaterial Subsidiary) will
create, incur or otherwise permit to be outstanding any
Borrowed Money (other than Permitted Borrowings);
(g) Issue of shares
(i) the Obligors will not and will procure that no member of
the Restricted Group (other than in respect of such other
members of the Restricted Group in order to permit a solvent
reorganisation permitted under clause 11.2(b)) reduces its
capital or purchases or redeems any class of its shares or any
other ownership in it and (ii) it will not and will procure
that no member of the Restricted Group issues any shares of
any class provided that (A) any member of the Restricted Group
may issue shares to or otherwise acquire additional rights
from any other member of the Restricted Group so long as (if
any of the existing shares in the relevant member of the
Restricted Group are charged or pledged in favour of any
Secured Party) such shares are charged or pledged in favour of
the Secured Parties pursuant to the terms of a Security
Document and there are delivered at the same time to the
Security Agent the relevant share certificates and blank stock
transfer forms (or equivalent documents) in respect thereof
together with such other documents and evidence and legal
opinions as the Agent may reasonably require, (B) UPCF may
issue shares to (1) UPC, or (2) any other person provided that
in the case of (1) such shares are charged or pledged in
favour of the Secured Parties pursuant to the terms of a
Security Document and there are delivered at the same time to
the Security Agent the relevant share certificates and blank
stock transfer forms (or equivalent documents) in respect
thereof together with such other documents and evidence and
legal opinions as the Agent may reasonably require and in the
case of (2), UPCF shall apply the market value of such shares
as are issued by it in prepayment of the Loan as if such
obligation to prepay had arisen under clause 6.6(b) and the
Facility A Total Commitments shall be automatically cancelled
by the amount prepaid on the same basis, and (C) any member of
the Restricted Group may issue shares pursuant to the exercise
of Approved Stock Options;
(h) Investments
it will not and will procure that no member of the Restricted
Group:
(i) acquires all or any substantial part of the assets,
property or business of any other person or any
assets that constitute a division or operating unit
of the business of any other person; or
(ii) creates or acquires any Subsidiary or Associated
Company or otherwise enters into any joint venture
arrangement or partnership or similar undertaking
with any person
other than Permitted Acquisitions and Permitted European
Acquisitions;
53
(i) Capital expenditure
it will not and will procure that no member of the Restricted
Group incurs any capital expenditure other than in relation to
the Permitted Business;
(j) Swaps and hedging
it will not and will procure that no member of the Restricted
Group enters into any interest rate or currency swaps or other
hedging arrangements other than non-speculative arrangements
directly relating to the risk management of any Borrowed Money
permitted to subsist by the terms of this Agreement and
entered into in the ordinary course of business for the
genuine hedging of the relevant underlying transaction;
(k) Restricted Payments
it will not and will procure that no member of the Restricted
Group makes any Restricted Payments other than Permitted
Payments or enters into any transaction with a Relevant Person
other than on bona fide arms length commercial terms or on
terms which are fair and reasonable and in the best interests
of the Restricted Group. The restriction contained in this
clause 11.2(k) on the payment by any member of the Restricted
Group of Management Fees shall cease to apply during such
period as the applicable ratio for the purposes of clause
12.1(b) is 3.50:1 (or less);
(l) Constitutive documents
it will not, and will procure that none of members of the
Restricted Group amends its constitutive documents in any way
which would or is reasonably likely to adversely affect (in
terms of value, enforceability or otherwise) the charge or
pledge granted to the Secured Parties pursuant to the Share
Securities; and
(m) xxxxxx and Priority
it will not and will not permit any contractual arrangements
between chello broadband N.V. and Priority Telecom N.V. and
the Restricted Group to be entered into other than on bona
fide arm's length commercial terms or on terms which are fair
and reasonable and in the best interests of the Restricted
Group.
Financial covenants
12.1 Financial covenants
Each of the Borrowers undertakes with each of the Secured Parties that,
from the date of this Agreement and so long as any moneys are owing
under this Agreement or any of the Commitments remain outstanding, it
will ensure that:
(a) Maximum Senior Debt to Adjusted Annualised Consolidated EBITDA
on each Quarter Day falling after the date of this Agreement
but on or before 30th June, 2001 the ratio of Senior Debt to
Adjusted Annualised Consolidated EBITDA (calculated on each
Quarter Day by reference to the Six Month Period ending on
such day) shall not exceed 5.75:1.
(b) Maximum Senior Debt to Annualised Consolidated EBITDA
on each Quarter Day falling within the period set out in
column (1) below the ratio of Senior Debt to Annualised
Consolidated EBITDA (calculated on each Quarter Day by
reference to the Six Month Period ending on such date) shall
not exceed the number set out against such period in column
(2) below:
54
------------------------------------------------------ -------------------
(1) (2)
Period Ratio
------------------------------------------------------ -------------------
------------------------------------------------------ -------------------
from (and including) 1st July, 2001 to (and 5.00:1
including) 31st March 2002
------------------------------------------------------ -------------------
------------------------------------------------------ -------------------
from (and including) 1st April, 2002 to (and 4.50:1
including) 30th September, 2002
------------------------------------------------------ -------------------
------------------------------------------------------ -------------------
from (and including) 1st October, 2002 to (and 4.00:1
including) 31st March 2003
------------------------------------------------------ -------------------
------------------------------------------------------ -------------------
from (and including) 1st April, 2003 to (and 3.50:1
including) 31st December, 2003
------------------------------------------------------ -------------------
------------------------------------------------------ -------------------
from (and including) 1st January, 2004 and thereafter 3.00:1
------------------------------------------------------ -------------------
(c) Senior Debt Cash Interest Charges
on each Quarter Day falling within the period set out in
column (1) below the ratio of Consolidated EBITDA (calculated
on each Quarter Day by reference to the Six Month Period
ending on such day) to the amount of Senior Debt Cash Interest
Charges attributable to the Six Month Period ending on such
Quarter Day shall be greater than the number set out against
such period in column (2) below:
------------------------------------------------------ --------------------
(1) (2)
Period Ratio
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from the date of this Agreement to (and including) 1.5:1
31st December, 2001
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from (and including) 1st January, 2002 to (and 1.75:1
including 31st December, 2002)
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from (and including) 1st January, 2003 to (and 2.00:1
including) 31st December, 2003
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from (and including) 1st January, 2004 and thereafter 2.50:1
------------------------------------------------------ --------------------
(d) Senior Debt Service Cover
on each Quarter Day falling within the period set out in
column (1) below the ratio of Annualised Consolidated EBITDA
(calculated on each Quarter Day by reference to the Six Month
Period ending on such day) to Pro Forma Senior Debt Service in
respect of the period of twelve months immediately following
such Quarter Day shall be equal to or greater than the number
set out against such period in column (2) below:
------------------------------------------------------ -------------------
(1) (2)
Period Ratio
------------------------------------------------------ -------------------
------------------------------------------------------ -------------------
from (and including) 30 June 2002 and thereafter 1.00:1
------------------------------------------------------ -------------------
(e) Minimum EBITDA
on each Quarter Day falling after the date of this Agreement
the aggregate consolidated EBITDA of the Telekabel Austrian
Entities, Xxxxx and Radio Public and their respective
Subsidiaries (taken as a whole) in respect of the twelve month
period ending on such Quarter Day shall be not less than 75
per cent. of the projected aggregate consolidated EBITDA of
the TeleKabel Austrian Entities, Xxxxx and Radio Public and
their respective Subsidiaries (taken as a whole) in respect of
such period as set out in the Management Base Case.
55
12.2 Auditors certificate
If at any time the Majority Banks (acting reasonably and following
consultation with UPCF) do not consider that any figure set out in any
Compliance Certificate issued by any Authorised Officer is correct,
they shall be entitled within 30 days of the date of the delivery of
such Compliance Certificate to the Agent pursuant to clause 12.1 to
call for a certificate from UPCF's auditors as to such figure. For such
purposes UPCF's auditors shall act as independent experts and not as
arbiters and every such certificate shall be addressed to the Agent (on
behalf of the Banks) and be at the expense of UPCF (unless the
certificate so provided by UPCF's auditors shows that the relevant
figures set out in the Compliance Certificate are in fact correct in
which case such certificate shall be at the expense of the Banks). The
Majority Banks may only call for one such certificate in any financial
year unless the relevant figures set out in the Compliance Certificate
are in fact incorrect in which case the Majority Banks may call for up
to three further such certificates in such financial year, provided
that if; in any of such certificates, the relevant figures set out in
the Compliance Certificate are certified as being in fact correct, then
the Majority Banks may not call for such further certificates in such
financial year. If the Majority Banks call for such a certificate all
calculations under this Agreement by reference to the relevant figure
shall (i) until the UPCF's auditors deliver the relevant certificate
under this clause 12.2 be made by reference to the figure set out in
the relevant Compliance Certificate delivered to the Agent under this
Agreement and (ii) following the delivery by UPCF's auditors of a
certificate under this clause 12.2 be made by reference to such
certificate and UPCF undertakes forthwith to take all action including,
without limitation, the prepayment of all or part of the Loan so as to
procure that all action taken on the basis of the relevant Compliance
Certificate which on the basis of such auditors' certificate would not
have been permitted is reversed.
12.3 Negative EBITDA
UPCF agrees that negative EBITDA attributable to New Services shall not
exceed Euro 50,000,000 in aggregate for the period from 30 June 1999
to 30 June 2001 unless funded by UPC by means of a new cash
Subordinated Shareholder Loan or by a cash subscription for equity
share capital of UPCF which Subordinated Shareholder Loan or
subscription for equity share capital is made no later than 45 days
after the date on which such limit was exceeded.
Events of Default
13.1 Events of default
Each of the events and circumstances set out below is an Event of
Default (whether or not caused by any reason outside the control of a
member of the Restricted Group):
(a) Non-payment
any Borrower fails to pay any principal sum due from it under
this Agreement and/or any Telekabel Note within one Banking
Day of the due date in the currency, at the time and in the
manner stipulated in this Agreement and/or the relevant
Telekabel Note, or any other sum due from it under this
Agreement and/or any Telekabel Note within three Banking Days
of the due date in the currency and in the manner stipulated
in this Agreement and/or the relevant Telekabel Note; or
(b) Breach of certain obligations
any Obligor commits any breach of or omits to observe any of
the obligations or undertakings expressed to be assumed by it
under clauses 11.1(c), (d), (e), (f), (g), (h), (i)(i) and
(k), clause 11.2(a), (b), (c), (f),(g), (h), (i) and (k) and
clause 12; or
(c) Breach of other obligations
UPC or any Obligor commits any breach of or omits to observe
any of the obligations or undertakings expressed to be assumed
by it under any of the Finance Documents (other than failure
to pay any sum when due or any breach of the undertakings
referred to in (b) above) and, in respect of any such breach
or omission which is capable of remedy, such action as the
Agent may require shall not have been taken within 28 days of
the Agent notifying UPC or the relevant Obligor of such
default and of such required action; or
56
(d) Misrepresentation
any representation or warranty made or deemed to be made or
repeated by or in respect of UPC or any Obligor or any other
member of the Restricted Group in or pursuant to any of the
Finance Documents or in any notice, certificate or statement
referred to in or delivered under any of the Finance Documents
is or proves to have been incorrect or misleading in any
material and adverse respect and, in the event that the act or
circumstance which led to such representation or warranty
being incorrect or misleading is capable of remedy, such
action as the Agent may require shall not have been taken
within 28 days of the Agent notifying the person who made or
was deemed to have made or repeated such representation or
warranty of such act or circumstance and such required action;
or
(e) Challenge to security
any Security Document is not or ceases to be effective or UPC
or any member of the Restricted Group shall in any way
challenge, or proceedings shall in any way be brought to
challenge, the prior status of the charges created by the
Security Documents or the validity or enforceability of the
Security Documents; or
(f) Cross-default
(i) any Borrowed Money of UPC or any member of the Restricted
Group is not paid when due (or within any applicable grace
period expressly contained in the agreement relating to such
Borrowed Money in its original terms) or (ii) any Borrowed
Money of UPC or any member of the Restricted Group becomes
(whether by declaration or automatically in accordance with
the relevant agreement or instrument constituting the same)
due and payable prior to the date when it would otherwise have
become due or (iii) any creditor of UPC or any member of the
Restricted Group becomes entitled to declare any Borrowed
Money of UPC or any member of the Restricted Group so due and
payable or to require cash collateralisation or security for
any such Borrowed Money or (iv) any facility or commitment
available to UPC or any member of the Restricted Group
relating to Borrowed Money is withdrawn, suspended or
cancelled by reason of any default (however described) of UPC
or the relevant member of the Restricted Group and the amount,
or aggregate amount at any one time, of all Borrowed Money in
relation to which any of the foregoing events set out in (i),
(ii), (iii) or (iv) shall have occurred and be continuing is
equal to or greater than Euro 15,000,000 in aggregate (in the
case of the members of the Restricted Group) or
Euro 50,000,000 (in the case of UPC) or, in each case, its
equivalent in the currency in which the same is denominated
and payable provided that (1) there shall not be an Event of
Default under sub-clauses (ii) or (iii) by reason solely of an
event which entitles the Agent to give a notice requiring
prepayment of the Loan pursuant to clause 6.6(a) and (2) there
shall not be an Event of Default under sub-clauses (i), (ii)
or (iii) in respect of Borrowed Money owing by a member of the
Restricted Group to another member of the Restricted Group
which is permitted under this Agreement; or
(g) Derivatives Contract default
(i) UPC or any member of the Restricted Group fails to make
payment in relation to a Derivatives Contract of any sum equal
to or greater than Euro 15,000,000 in aggregate at any one
time (or its equivalent in the relevant currency of payment)
with respect to any member of the Restricted Group and
Euro 50,000,000 in aggregate at any one time (or its
equivalent in the relevant currency payment) with respect to
UPC on its due date (or within any applicable grace period
expressly contained in the agreement relating to such
Derivatives Contract in its original terms); or (ii) the
counterparty to a Derivatives Contract becomes entitled to
terminate that Derivatives Contract early by reason of default
on the part of UPC or any member of the Restricted Group and
the Net Derivatives Liability of UPC or members of the
Restricted Group, in the aggregate, under all its Derivatives
Contracts in relation to which any of the foregoing events
shall have occurred at the relevant time is equal to or
greater than the amount set forth herein for the applicable
entity (or its equivalent in the relevant currency) provided
that there shall not be an Event of Default under sub-clause
(ii) by reason solely of an event which entitles the Agent to
give a notice requiring prepayment of the Loan pursuant to
clause 6.6(a); or
57
(h) Legal process
(i) any judgment or order for an amount of Euro 15,000,000 (or its
equivalent) made against any member of the Restricted Group or for an
amount of Euro 50,000,000 (or its equivalent) made against UPC, is not
stayed, complied with or being appealed against in good faith by
appropriate proceedings (provided that such appeal is being diligently
pursued and UPCF has demonstrated to the reasonable satisfaction of
the Agent (acting on the instructions of the Majority Banks) that the
appeal is not frivolous, vexatious or an abuse of the process of the
court) within 14 days; or
(ii a creditor attaches or takes possession of or a distress, execution,
sequestration or other process is levied or enforced upon or sued out
against, any material part of the undertaking assets, rights or
revenues of any member of the Restricted Group (other than an
Immaterial Subsidiary) and is not discharged within 14 days save where
the relevant member of the Restricted Group is, in good faith,
contesting the relevant process by appropriate proceedings diligently
pursued and the Majority Banks are reasonably satisfied that the
ability of the Obligors to comply with their respective obligations
under the Finance Documents will not be materially and adversely
affected whilst such process is being so contested; or
(i) Insolvency
(i) The Netherlands: UPC or any member of the Restricted Group organised
in The Netherlands is declared bankrupt (in staat van faillissement
verklaard) or enters into a preliminary or definitive moratorium (in
voorlopige of definitieve surseance van betaling gaan) pursuant to the
Dutch Bankruptcy Act (Faillissementswet); or
(ii) Austria: any "Reorganisationsverfahren", "Ausgleich" or "Konkurs"
under the applicable Austrian Laws is being opened on the assets of
any member of the Restricted Group organised in Austria or any such
member of the Restricted Group enters into an agreement with its
creditors having the same effect;
(iii)Belgium: any member of the Restricted Group incorporated in Belgium is
declared bankrupt under the Bankruptcy Act of 8 August 1997 of Belgium
(or any replacement enactment therefor which is entered into after the
date of this Agreement) or is otherwise subject to the proceeding
provided under Section 8 of that Bankruptcy Act or takes any step to
or otherwise enters into composition proceedings under the
Compositions Act of 17 July 1997 of Belgium (or any replacement
enactment therefor which is entered into after the date of this
Agreement);
(iv) Norway: with respect to any member of the Restricted Group
incorporated in Norway, any order of a competent court or an event
analogous thereto shall be made or any effective resolution passed
with a view to the bankruptcy, composition proceedings, debt
negotiations, liquidation, winding-up or similar event pursuant to the
Norwegian Bankruptcy Act of 8th June 1984 or any replacement enactment
therefor which is entered into after the date of this Agreement;
(v) United States of America: any member of the Restricted Group (other
than an Immaterial Subsidiary) which is a partner of any partnership
formed under the laws of the states of Colorado or Delaware, United
States of America: (A) shall become insolvent, have made a transfer in
fraud of creditors or an assignment for the benefit of creditors, or
have admitted in writing its inability to pay its debts as they become
due; (B) is generally not paying its debts as such debts because due;
(C) shall have had appointed a receiver, a custodian for, or taken
possession of, all or substantially all of its assets, in a proceeding
brought by or against such Restricted Group member, and such
appointment shall not have been discharged or such possession shall
not have been terminated within thirty days after the effective date
thereof such Restricted Group member shall have consented to or
acquiesced in such appointment or possession; (D) shall have filed a
petition for relief under the insolvency, bankruptcy or similar laws
of the United States of America or any state thereof, or an
involuntary petition for such relief shall have been filed against any
such Restricted Group member under such laws and shall not have been
dismissed or terminated within thirty days after such involuntary
petition is filed; or (E) shall have failed to have discharged or
obtained a stay of any proceeding to enforce, within a period of ten
days after the commencement thereof, any attachment, sequestration or
similar proceeding asserted against all or substantially all of the
assets of such Restricted Group member;
58
(vi) Czech Republic: any member of the Restricted Group (other than an
Immaterial Subsidiary) which is incorporated in or which has a branch
office in the Czech Republic is subject in the Czech Republic to: (A)
bankruptcy proceedings under Act No. 328/1991 Coll., as amended, on
Bankruptcy and Composition (the "Bankruptcy Act"); (B) involuntary
composition proceedings under the Bankruptcy Act; (C) voluntary
composition proceedings under the Bankruptcy Act; (D) voluntary
winding up with liquidation under Act No. 513/1991 Coll., as amended
(the "Commercial Code"); or (E) involuntary winding up with
liquidation under the Commercial Code; or
(vii)Republic of Hungary: any member of the Restricted Group (other than an
Immaterial Subsidiary) which is incorporated or which has a branch
office in the Republic of Hungary:
(A) shall have filed a petition for bankruptcy (csod); or
(B) becomes insolvent: or
(C) is not paying its debts as such debts become due; or
(D) shall have filed a petition for voluntary liquidation
(felszamolas); or
(E) an involuntary liquidation (felszamolas) proceedings shall
have been commenced against; or
(F) an involuntary liquidation (felszamolas) proceedings shall
have been commenced against its branch office; or
(j) Reduction or loss of capital
a meeting is convened by UPCF or any other entity in the
Restricted Group which is not, directly or indirectly, a
Subsidiary of UPCF for the purpose of passing any resolution
or agreeing to, or UPCF or any such entity does, purchase,
reduce or redeem any of its share capital; or
(k) Winding up
any petition is presented and is not withdrawn or discharged
within 14 days or other step is taken for the purpose of
winding up UPC or any member of the Restricted Group (other
than an Immaterial Subsidiary) (not being a petition which
UPC, or the relevant member of the Restricted Group (as the
case may be) can demonstrate to the satisfaction of the Agent,
is frivolous, vexatious or an abuse of the process of the
court or relates to a claim to which UPC or the relevant
member of the Restricted Group (as the case may be) has a good
defence and which is being vigorously contested by UPC or the
relevant member of the Restricted Group (as the case may be))
or an order is made or resolution passed for the winding up of
or any member of the Restricted Group which is not an
Immaterial Subsidiary or a notice is issued convening a
meeting for the purpose of passing any such resolution other
than of a member of the Restricted Group other than Obligors
in relation to, or for the purpose of, a solvent
reorganisation (i) permitted under clause 11.2(b) or (ii) on
terms previously approved by the Agent (acting on the
instructions of the Majority Banks); or
(l) Administration: any petition is presented and is not withdrawn
or discharged within 14 days or any other step is taken for
the purpose of the appointment of an administrator of UPC or
any member of the Restricted Group (other than an Immaterial
Subsidiary) or an administration order is made in relation to
UPC or any member of the Restricted Group (other than an
Immaterial Subsidiary); or
(m) Appointment of receivers and managers: any administrative or
other receiver is appointed of UPC or any member of the
Restricted Group (other than an Immaterial Subsidiary) or any
material part of their respective assets and/or undertakings
or any other steps are taken to enforce any Encumbrance over
all or any material part of the assets of UPC or any member of
the Restricted Group (other than an Immaterial Subsidiary); or
59
(n) Compositions
any steps are taken, or negotiations commenced, by UPC or any
member of the Restricted Group (other than an Immaterial
Subsidiary) or by any of their respective creditors with a
view to proposing any kind of composition, compromise or
arrangement involving such company and any of its creditors;
or
(o) Analogous proceedings
there occurs, in relation to UPC or any member of the
Restricted Group (other than an Immaterial Subsidiary), in any
country or territory in which it carries on business or to the
jurisdiction of whose courts any part of its assets is
subject, any event which corresponds with, or have an effect
equivalent or similar to, any of those mentioned in clauses
14.1(h) to 14.1(n) (inclusive) or UPC or any member of the
Restricted Group (other than an Immaterial Subsidiary)
otherwise becomes subject, in any such country or territory,
to the operation of any law relating to insolvency, bankruptcy
or liquidation (other than merely by virtue of its existence);
or
(p) Cessation of business
UPC or the Restricted Group (taken as a whole) suspends or
ceases or threatens to suspend or cease to carry on their
respective businesses; or
(q) Seizure
all or a material part of the undertakings, assets, rights or
revenues of; or shares or other ownership interests in UPC or
the Restricted Group (taken as a whole) are seized,
nationalised, expropriated or compulsorily acquired by or
under the authority of any government; or
(r) Principal Agreements
(i) save as is required by any term of this Agreement any Principal
Agreement is terminated, suspended, revoked or cancelled or otherwise
ceases to be in full force and effect (unless, either (i) in the case
of an Interconnect Agreement only, services of a similar nature to
those provided pursuant to such Principal Agreement are at all times
provided to the Restricted Group on terms which are not materially
more onerous on the relevant member of the Restricted Group or on the
terms imposed by the mandatory requirements of any regulatory body or
(ii), in the case of a Shareholders Agreement only, such termination,
suspension, revocation, cancellation or cessation (in the reasonable
opinion of the Agent) would not or is not reasonably likely to have a
Material Adverse Effect); or
(ii) any alteration or variation is made to any term of any Principal
Agreement which individually or cumulatively (in the reasonable
opinion of the Agent) would or is reasonably likely to have a Material
Adverse Effect; or
(iii)any party breaches any term of or repudiates any of its obligations
under any of the Principal Agreements where such breach or repudiation
(in the opinion of the Agent exercised reasonably) would or is
reasonably likely to have a Material Adverse Effect unless, in the
case of a breach of a Principal Agreement by any person other than any
member of the Restricted Group, the relevant services are at all
relevant times provided to the appropriate members of the Restricted
Group on the basis set out in clause 14.1(r)(i); or
(s) Unlawfulness
it becomes unlawful at any time for UPC, any Obligor or any
Subordinated Creditor to perform any of their respective
material obligations under any of the Finance Documents or any
of the material obligations of UPC, any Obligor or any
Subordinated Creditor under any of the Finance Documents
becomes unenforceable in any way or there ceases to be
security over the relevant property or assets of UPC or the
relevant Obligor as intended and created by the Security
Documents; or
60
(t) Environmental matters
as a result of any Environmental Law any of the Finance
Parties becomes subject to a material, in the reasonable
opinion of the Agent, obligation (actual or contingent, in the
case of any contingent obligation, being one which, at the
relevant time, would be likely to arise) directly as a result
of it entering into any of the Finance Documents which was not
caused by its negligence or wilful default; or
(u) Repudiation
UPC, any Obligor or any Subordinated Creditor repudiates any
of the Finance Documents to which it is a party or does or
causes or permits to be done any act or thing clearly
evidencing an intention to repudiate this Agreement or any
such Security Document; or
(v) Subordinated Creditors
(i) a Subordinated Creditor commits any material breach of or omits to
observe any of the obligations or undertakings expressed to be assumed
by it under the Relevant Person Pledge of Shareholder Loans and in
respect of any such breach or omission which, in the opinion of the
Agent (acting on the instructions of the Majority Banks (acting
reasonably)) is capable of remedy, such action as the Agent may
require shall not have been taken within 28 days of the Agent
notifying the relevant Subordinated Creditor thereof and of such
required action; or
(ii) any representation or warranty made or deemed to be made or repeated
by or in respect of any Subordinated Creditor in or pursuant to the
Relevant Person Pledge of Shareholder Loans is or proves to have been
incorrect or misleading in any material and adverse respect on the
date on which it was made or deemed to be made or repeated and, in the
event that the act or circumstance which led to such representation or
warranty being incorrect or misleading is capable of remedy, such
action as the Agent may require shall not have been taken within 28
days of the Agent notifying the relevant Subordinated Creditor of such
act or circumstance and such required action; or
(iii)any Subordinated Creditor is not or ceases to be bound by a Relevant
Person Pledge of Shareholder Loans; or
(iv) any payment due from a member of the Restricted Group to a
Subordinated Creditor is not or ceases to be subordinated to the
amounts owing under this Agreement other than any payment that is not
required to be so subordinated according to the terms of this
Agreement or any other Finance Document; or
(v) any Subordinated Creditor takes steps to contest the subordination
effected by a Relevant Person Pledge of Shareholder Loans; or
(w) Material events
any other event occurs or circumstances arise which in the
reasonable opinion of the Agent would or is reasonably likely
to have a Material Adverse Effect; or
(x) Qualification of accounts
the auditors of UPC or the Restricted Group qualify their
report on the audited consolidated financial statements of UPC
or, as the case may be, the Restricted Group in such a way as
to assume that UPC or, as the case may be, the Restricted
Group, is not a going concern.
13.2 Acceleration
The Agent may and if so requested by the Majority Banks shall, without
prejudice to any other rights of the Banks, at any time after the
happening of an Event of Default so long as the same is continuing,
unremedied or unwaived by notice to the Borrowers declare that:
(a) the obligation of each Bank to make its Commitment available
shall be terminated, whereupon the Commitments shall be
reduced to zero forthwith; and/or
61
(b) the Loan, all or any outstanding Telekabel Notes, and all
interest and commitment commission accrued and all other sums
payable under this Agreement and/or all or any of the
Telekabel Notes have become immediately due and payable or
have become due and payable on demand, whereupon the same
shall, immediately or in accordance with the terms of such
notice, become so due and payable; and/or
(c) the Security Documents (or any of them) have become enforceable whereupon
the same shall be enforceable.
On or at any time after the making of any such declaration, the Agent
shall be entitled, to the exclusion of the Borrowers (and without
prejudice to clause 5.6), to select the duration of each period for the
calculation of interest in relation to any outstanding Drawings or
other sums payable under this Agreement provided that the Agent agrees
that, without prejudice to any of its other rights under this
Agreement, it shall not accelerate the due date of any sums payable by
Telekabel Wien until 28 days after the date that the Agent has given
notice to Telekabel Wien that a Default has occurred unless at such
time (i) Telekabel Wien has breached any of its obligations under this
Agreement or (ii) an Event of Default has otherwise occurred in
relation to Telekabel Wien, in which case such 28 day grace period (or
any unexpired part thereof) shall not apply.
13.3 Demand basis
If, pursuant to clause 13.2(b), the Agent declares the Loan and/or the
outstanding principal amount of all or any of the Telekabel Notes to be
due and payable on demand then the Agent may (and, if so instructed by
the Majority Banks, shall) at any time by written notice to the
Borrowers (a) call for repayment of all or any of the Drawings and/or
the outstanding principal amount of all or any of the Telekabel Notes
on such date as may be specified in such notice whereupon the relevant
Drawings and/or the outstanding principal amount of the relevant
Telekabel Notes shall become due and payable on the date so specified
together with all interest and commitment commission accrued and all
other sums payable under this Agreement and/or the relevant Telekabel
Notes or (b) withdraw such declaration with effect from the date
specified in such notice.
Indemnities
14.1 Miscellaneous indemnities
UPCF shall on demand indemnify each Finance Party without prejudice to
any of their other rights under this Agreement and the Transaction
Documents, against any loss (including loss of Margin) or expense which
such Finance Party shall certify as sustained or incurred by it as a
consequence of:
(a) any default in payment by any Obligor of any sum under any Finance
Documents when due;
(b) the occurrence of any other Event of Default;
(c) any repayment or prepayment of the Drawings or part thereof being made
otherwise than on an Interest Payment Date relating thereto;
(d) any Drawing not being made or issued for any reason (excluding any default
by any relevant Finance Party) after a Drawdown Notice has been given;
including, in any such case, but not limited to, any loss or expense
sustained or incurred by such Finance Party in maintaining or funding
all or any part of its Contribution or in liquidating or re-employing
deposits from third parties acquired or contracted for to fund all or
any part of its Contribution or any other amount owing to such Finance
Party.
14.2 Currency of account: currency indemnity
No payment by any Obligor under this Agreement which is made in a
currency other than the currency ("Contractual Currency") in which such
payment is required to be made pursuant to this Agreement shall
discharge the obligation in respect of which it is made except to the
extent of the net proceeds in the Contractual Currency received by the
Agent or the Security Agent as the case may be upon the sale of the
currency so received, after taking into account any premium and costs
of exchange in connection with such sale. For the avoidance of doubt,
the Secured Parties shall not be obliged to accept any such payment in
a currency other than the Contractual Currency nor shall the Secured
Parties be liable to any Obligor for any loss or alleged loss arising
from fluctuations in exchange rates between the date on which such
payment is so received by the Agent or the Security Agent as the case
62
may be and the date on which the Agent or the Security Agent as the
case may be effects such sale, as to which the Agent or the Security
Agent as the case may be shall (as against the relevant Obligor) have
an absolute discretion but shall consult with UPCF. If any sum due from
any Obligor under this Agreement or any order or judgment given or made
in relation hereto is required to be converted from the Contractual
Currency or the currency in which the same is payable under such order
or judgment (the "first currency") into another currency (the "second
currency") for the purpose of (a) making or filing a claim or proof
against the relevant Obligor, (b) obtaining an order or judgment in any
court or other tribunal or (c) enforcing any order or judgment given or
made in relation to this Agreement, the relevant Obligor shall
indemnify and hold harmless the Secured Parties from and against any
loss suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (ii) the rate or rates of
exchange at which such Secured Party may in the ordinary course of
business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of
any such order, judgment, claim or proof. Any amount due from any
Obligor under the indemnity contained in this clause 14.2 shall be due
as a separate debt and shall not be affected by judgment being obtained
for any other sums due under or in respect of this Agreement and the
term "rate of exchange" includes any premium and costs of exchange
payable in connection with the purchase of the first currency with the
second currency.
14.3 Environmental indemnity
Each Borrower agrees to indemnify on demand each Secured Party, and
their respective officers, employees and agents (together the
"Indemnified Parties") in respect of which each Secured Party holds
this indemnity on trust, without prejudice to any of their other rights
under this Agreement, against any loss, liability, action, claim,
demand, cost, expense, fine or other outgoing whatsoever whether in
contract, tort, delict or otherwise and whether arising at common law,
in equity or by statute which the relevant Indemnified Party shall
certify as sustained or incurred by it at any time as a consequence of,
or relating to, or arising directly or indirectly out of, any
Environmental Claims made or asserted against such Indemnified Party
which would not have arisen if this Agreement had not been executed and
which was not caused by the negligence or wilful default of the
relevant Indemnified Party.
14.4 ESGB reserve requirements
Each Borrower shall on demand indemnify each Bank against any cost or
loss suffered by it as a result of complying with the European Central
Bank's reserve requirements to the extent such requirements relate
solely to its participation in the Facilities and are not recoverable
by such Bank under clause 15.2.
Unlawfulness and increased costs; mitigation
15.1 Unlawfulness
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Drawings or to maintain its Commitment or fund its
Contribution, such Bank shall promptly, through the Agent, notify the
relevant Borrower whereupon (a) such Bank's Commitment under the
Facilities shall be reduced to zero and (b) the Borrowers shall be
obliged to prepay the Contribution of such Bank either (A) forthwith,
if such unlawfulness has immediate or retrospective effect, or (B) on
future specified dates falling on or before the latest date permitted
by the relevant law or regulation so as to minimise any loss or expense
incurred by the relevant Bank liquidating or re-employing deposits from
third parties acquired or contracted to fund all or any part of its
Contribution. Any prepayment pursuant to this clause 15.1 shall be made
together with all amounts referred to in clause 6.7.
15.2 Increased costs
If the result of any change in, or change in the interpretation or
application or the introduction of (in each case taking effect after
the date of this Agreement) any law or any regulation, request or
requirement (whether or not having the force of law, but, if not having
the force of law, with which the relevant Bank or, as the case may be,
its holding company habitually complies), including (without
limitation) those relating to Taxation, capital adequacy, liquidity,
reserve assets, cash ratio deposits and special deposits, is to:
63
(a) subject any Bank to Taxes or change the basis of Taxation of
any Bank with respect to any payment under this Agreement
(other than Taxes or Taxation on the overall net income,
profits or gains of such Bank); and/or
(b) increase the cost to, or impose an additional cost on, any
Bank or its holding company in making or keeping available all
or part of such Bank's Commitment or maintaining or funding
all or part of such Bank's Contribution; and/or
(c) reduce the amount payable or the effective return to any Bank under this
Agreement; and/or
(d) reduce any Bank's or its holding company's rate of return on
its overall capital by reason of a change in the manner in
which it is required to allocate capital resources to such
Bank's obligations under this Agreement; and/or
(e) require any Bank or its holding company to make a payment or
forgo a return calculated by reference to or on any amount
received or receivable by such Bank under this Agreement;
and/or
(f) require any Bank or its holding company to incur or sustain a
loss (including a loss of future potential profits) by reason
of being obliged to deduct all or part of such Bank's
Commitment or Contribution from its capital for regulatory
purposes,
then and in each such case (but subject to clause 15.3):
(i) such Bank shall notify the Borrowers through the Agent in
writing of such event promptly upon its becoming aware of the
same; and
(ii) the Borrowers shall on demand, made at any time whether or not
such Bank's Contribution has been repaid, pay to the Agent for
the account of such Bank the amount which such Bank specifies
(in a certificate setting forth the basis of the computation
of such amount but not including any matters which such Bank
or its holding company regards as confidential) is required to
compensate on an after-tax basis such Bank and/or its holding
company for such liability to Taxes, increased or additional
cost, reduction, payment, forgone return or loss.
For the purposes of this clause 15.2 and clause 15.4 "holding company"
means, in relation to a Bank, the company or entity (if any) within the
consolidated supervision of which such Bank is included.
15.3 Exceptions
Nothing in clause 15.2 shall entitle any Bank to receive any amount in
respect of compensation for any such liability to Taxes, increased or
additional cost, reduction, payment, forgone return or loss to the
extent that the same:
(a) is taken into account in calculating the Additional Cost; or
(b) is the subject of an additional payment under clause 8.5; or
(c) arises as a consequence of (or of any law or regulation
implementing) (i) the proposals for international convergence
of capital measurement and capital standards published by the
Basle Committee on Banking Regulations and Supervisory
Practices in July 1988 and/or (ii) any applicable directive of
the European Union (in each case) unless it results from any
change in, or in the interpretation or application of; such
proposals or any such applicable directive (or any law or
regulation implementing the same) occurring after the date
hereof; or
(d) arises as a result of a breach by such Bank of any regulation,
request or requirement (which either (i) is in existence at
the date of this Agreement or (ii) which comes into effect
after the date of this Agreement and with which such Bank
would have complied if such regulation, request or requirement
was in effect on the date of this Agreement) of any applicable
central bank or other fiscal, monetary or other authority
(whether or not having the force of law).
For the purposes of clause 15.3(c) the term "applicable directive"
means (exclusively) each of the Own Funds Directive (89/299/EEC of 17th
April 1989) and the Solvency Ratio Directive (89/647/EEC of 18th
December 1989).
64
15.4 Mitigation
If circumstances arise which would or would upon the giving of notice,
result in:
(a) the application of clause 5.9 in relation to any Bank;
(b) any Obligor being required to make an increased payment to any Bank pursuant
to clause 8.5;
(c) the reduction of any Bank's Commitment to zero or the
Borrowers being required to prepay any Bank's Contribution
pursuant to clause 15.1; or
(d) any Borrower being required to make a payment to any Bank to
compensate such Bank or its holding company for a liability to
Taxes, increased or additional cost, reduction, payment,
forgone return or loss pursuant to clause 15.2(ii);
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowers under clause 8 and this clause 15, such
Bank shall, in consultation with the Agent, endeavour to take such
reasonable steps (and/or, in the case of clause 15.2(ii) and where the
increased or additional cost, reduction, payment, forgone return or
loss is that of its holding company, endeavour to procure that its
holding company takes such reasonable steps) as are open to it (or, as
the case may be, its holding company) to mitigate or remove such
circumstances (including (in the case of such Bank) the transfer of its
rights and obligations under this Agreement to another bank or
financial institution acceptable to the Borrower) unless the taking of
such steps might (in the reasonable opinion of such Bank) be
prejudicial to such Bank (or, as the case may be, its holding company)
or be in conflict with such Bank's (or, as the case may be, its holding
company's) general banking policies or involve such Bank (or, as the
case may be, its holding company) in any material expense or any
material increased administrative burden.
15.5 Replacement of Banks
If at any time, any Bank becomes a Non-Funding Bank then UPCF may, on
10 Banking Days' prior written notice to the Agent and such Bank,
replace such Bank by causing such Bank to (and such Bank shall) assign
and transfer all of its rights and obligations under this Agreement to
a Bank or other entity selected by UPCF and acceptable to the Agent for
a purchase price equal to such Bank's Contribution and all accrued
interest, fees and other amounts payable to it under this Agreement and
the Telekabel Notes provided that:
(a) UPCF shall have no right to replace the Agent;
(b) neither the Agent nor any Bank shall have any obligation to
any Borrower to find a replacement Bank or other such entity;
(c) in no event shall the Bank hereby replaced be required to pay
or surrender to such replacement Bank or other entity any of
the fees received by such Bank hereby replaced pursuant to
this Agreement; and
(d) UPCF's right to replace a Non-Funding Bank is, and shall be,
in addition to and not in lieu of all other rights and
remedies available to the Borrowers against such Non-Funding
Bank under this Agreement, at law, in equity or by statute.
For the purposes of this clause 15.5:
"Non-Funding Bank" means any Bank:
(a) to whom any Borrower is obliged to pay any sum pursuant to
clause 15.2 or 8.5; or
(b) in respect of which it becomes contrary to any law or
regulation for it to contribute to Drawings or to maintain its
Commitment or fund its Contribution pursuant to clause 15.1.
Set-off and pro rata payments
16.1 Set-off
Each Obligor authorises each Finance Party at any time whilst an Event
of Default is subsisting to apply any credit balance to which such
Obligor is then entitled on any account of such Obligor with such Bank
at any of its branches in or towards satisfaction of any sum then due
and payable from such Obligor to such Finance Party under this
Agreement. For this purpose each Finance Party is authorised to
purchase with the moneys standing to the credit of such account such
65
other currencies as may be necessary to effect such application. No
Finance Party shall be obliged to exercise any right given to it by
this clause 16.1. Each Finance Party shall notify the Agent and the
relevant Obligor (giving full details) forthwith upon the exercise or
purported exercise of any right of set-off and the Agent shall inform
the other Finance Parties.
16.2 Pro rata payments
(a) If at any time any Finance Party receives or recovers any amount owing to
it by any Obligor under this Agreement by direct payment, set-off or in any
manner other than by payment through the Agent pursuant to clause 8.1 or
8.10 (not being a payment received, in the case of a Bank, from a
Transferee in such Bank's Contribution or any other payment of an amount
due to the Recovering Bank for its sole account pursuant to clauses 6.5, 7,
8.5, 14.1, 14.2, 15.1 or 15.2) (the "Recovering Bank"), the Recovering Bank
shall, within two Banking Days of such receipt or recovery (a "Relevant
Receipt") notify the Agent of the amount of the Relevant Receipt. If the
Relevant Receipt exceeds the amount which the Recovering Bank would have
received if the Relevant Receipt had been received by the Agent and
distributed pursuant to clause 8.1 or 8.10 (as the case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount
equal (or equivalent) to the excess;
(ii) the Agent shall treat the excess amount so paid by
the Recovering Bank as if it were a payment made by
the relevant Obligor and shall distribute the same to
the Finance Parties (other than the Recovering Bank)
in accordance with clause 8.10; and
(iii) as between the relevant Obligor and the Recovering
Bank the excess amount so re-distributed shall be
treated as not having been paid but the obligations
of the relevant Obligor to the other Finance Parties
shall, to the extent of the amount so re-distributed
to them, be treated as discharged.
(b) If any part of the Relevant Receipt subsequently has to be
wholly or partly refunded by the Recovering Bank (whether to a
liquidator or otherwise) each Finance Party to which any part
of such Relevant Receipt was so re-distributed shall on
request from the Recovering Bank repay to the Recovering Bank
such Finance Party's pro rata share of the amount which has to
be refunded by the Recovering Bank.
(c) Each Finance Party shall on request supply to the Agent such
information as the Agent may from time to time request for the
purpose of this clause 16.2.
(d) Notwithstanding the foregoing provisions of this clause 16.2
no Recovering Bank shall be obliged to share any Relevant
Receipt which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under
this Agreement with any other party which has a legal right
to, but does not, either join in such proceedings or commence
and diligently pursue separate proceedings to enforce its
rights in the same or another court (unless the proceedings
instituted by the Recovering Bank are instituted by it without
prior notice having been given to such party through the
Agent).
16.3 No release
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 16.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 16.2.
16.4 No charge
The provisions of this clause 16 shall not, and shall not be construed
so as to, constitute a charge by a Finance Party over all or any part
of a sum received or recovered by it in the circumstances mentioned in
clause 16.2.
66
Assignment substitution and lending offices
17.1 Benefit and burden
This Agreement shall be binding upon, and ensure for the benefit of;
the Finance Parties and the Obligors and their respective successors
and permitted assigns.
17.2 No assignment by Obligors
None of the Obligors may assign or otherwise transfer any of its rights
or obligations under this Agreement other than pursuant to a merger in
accordance with clause 11.2(b).
17.3 Assignment by Xxxxx
Each Bank (an "Assignor Bank") may assign all or any part (being, in
the case of part, at least Euro 5,000,000 (or Euro 2,500,000 in the
case of an assignment to another Bank) and an integral multiple of
Euro 1,000,000) of its rights to a Qualifying Bank (an "Assignee")
with the prior consent in writing of UPCF, such consent not to be
unreasonably withheld or delayed, other than in the case of an
assignment to another Bank or Subsidiary or Holding Company of the
Assignor Bank in which event the consent of UPCF shall not be required.
The Assignor Bank shall promptly notify the Borrowers and the Agent of
any such assignment.
17.4 Transfer
Each Bank (a "Transferor Bank") may transfer all or any part (being, in
the case of part, at least Euro 5,000,000 (or Euro 2,500,000 in the
case of a transfer to another Bank) and an integral multiple of
Euro 1,000,000) of its rights, benefits and/or obligations under this
Agreement (including, for the avoidance of doubt, any outstanding
Telekabel Notes) to a Qualifying Bank (a "Transferee") with the prior
consent in writing of UPCF (acting on behalf of itself and each
Obligor), such consent not to be unreasonably withheld or delayed,
other than in the case of a transfer to another Bank or a Subsidiary or
Holding Company of the Transferor Bank, in which event the consent of
UPCF shall not be required. Any such transfer shall be effected upon
not less than 5 Banking Days' prior notice by delivery to the Agent of
a duly completed Transfer Certificate duly executed by the Transferor
Bank and the Transferee. On the Effective Date (as specified and
defined in a Transfer Certificate so executed and delivered), to the
extent that the Commitment and Contribution of the Transferor Bank are
expressed in a Transfer Certificate to be the subject of the transfer
in favour of the Transferee effected pursuant to this clause 17.4, by
virtue of the counter-signature of the Transfer Certificate by the
Agent (for itself and the other parties to this Agreement and the
Security Deed):
(a) to the extent that in such Transfer Certificate the Transferor Bank seeks
to transfer such obligations and rights hereunder the existing parties to
this Agreement and the Security Deed and the Transferor Bank shall be
released from their respective obligations towards one another, other than
the obligations outstanding from the Obligors to the Transferor Banks under
this Agreement and the Security Deed ("discharged obligations") and their
respective rights against one another, other than the outstanding rights of
the Transferor Bank against the Obligor, under this Agreement and the
Security Deed ("discharged rights") shall be cancelled and the rights of
the Transferor Bank against the Obligors shall be assigned to the
Transferee party to the relevant transfer certificate (the "assigned
rights");
(b) the Transferee party to the relevant Transfer Certificate and the existing
parties to this Agreement and the Security Deed (other than such Transferor
Bank) shall assume obligations towards each other which differ from the
discharged obligations only insofar as they are owed to or assumed by such
Transferee instead of to or by such Transferor Bank as a result of such
transfer; and
(c) the Transferee party to the relevant Transfer Certificate and the existing
parties to this Agreement and the Security Deed (other than such Transferor
Bank) shall acquire rights against each other which differ from the
discharged rights and the assigned rights only insofar as they are
exercisable by or against such Transferee instead of by or against such
Transferor Bank as a result of such transfer;
and, on such Effective Date, the Transferee shall pay to the Agent for
its own account a fee of Euro 1,500 unless such Effective Date falls
before the date falling three months after the date of closing of
general syndication and both the Transferor Bank and the Transferee
67
Bank were Banks on the close of general syndication. The Agent shall
promptly notify the Borrowers of the receipt by it of any Transfer
Certificate and shall promptly deliver a copy of such Transfer
Certificate to the Borrower.
17.5 Reliance on Transfer Certificate
The Finance Parties and the Obligors shall be fully entitled to rely on
any Transfer Certificate delivered to the Agent in accordance with the
foregoing provisions of this clause 17 which is complete and regular on
its face as regards its contents and purportedly signed on behalf of
the relevant Transferor Bank and the Transferee and none of the Finance
Parties or the Obligors shall have any liability or responsibility to
any party as a consequence of placing reliance on and acting in
accordance with any such Transfer Certificate if it proves to be the
case that the same was not authentic or duly authorised.
17.6 Authorisation of Agent
Each party to this Agreement irrevocably authorises the Agent to
counter-sign each Transfer Certificate on its behalf for the purposes
of clause 17.3 or 17.4 without any further consent of, or consultation
with, any such party except, in the case of the Borrower, the consent
required pursuant to clause 17.3 or 17.4.
17.7 Construction of certain references
If any Bank assigns all or any part of its rights or transfers all or
any part of its rights, benefits and obligations as provided in clause
17.3 or 17.4 all relevant references in this Agreement and the Security
Deed to such Bank shall thereafter be construed as a reference to such
Bank and/or its Transferee to the extent of their respective interests.
17.8 Lending offices
Each Bank shall lend through its office at the address specified in
part A of schedule 1 or, as the case may be, in any relevant Transfer
Certificate or through any other office of such Bank selected from time
to time by such Bank through which such Bank wishes to lend for the
purposes of this Agreement, Provided that no such change of lending
office may take place if it would involve any Obligor having to pay any
amount under clause 15.2 with respect to its obligations under this
Agreement. If the office through which a Bank is lending is changed
pursuant to this clause 17.8, such Bank shall notify the Agent promptly
of such change.
17.9 Disclosure of information
Subject to such person first executing a confidentiality undertaking in
a form acceptable to UPCF, acting reasonably, any Bank may disclose to
a prospective transferee or to any other person who may propose
entering into contractual relations with such Bank in relation to this
Agreement such information about the Restricted Group as such Bank
shall consider appropriate acting reasonably.
68
Joint Arrangers, Agent, Security Agent and Reference Banks
18.1 Appointment of Agent
Each Bank irrevocably appoints the Agent as its agent for the purposes
of this Agreement and irrevocably authorises the Agent in such
capacity:
(a) to execute all documents as may be approved by the Majority Banks for
execution by the Agent; and
(b) (whether or not by or through employees or agents) to take such action on
such Bank's behalf and to exercise such rights, remedies, powers and
discretions as are specifically delegated to the Agent by this Agreement
or, (as the case may be) the Security Documents, together with such powers
and discretions as are reasonably incidental thereto (but subject to any
restrictions or limitations specified in this Agreement). None of the
Agent, or the Joint Arrangers or the Security Agent, shall, however, have
any duties, obligations or liabilities (whether fiduciary or otherwise) to
the Banks beyond those expressly stated in this Agreement and/or the
Security Documents.
Notwithstanding that the Agent and the Security Agent may from time to
time be the same entity, the Agent and the Security Agent have entered
into this Agreement in their separate capacities as agent for the Banks
under and pursuant to this Agreement and as Security Agent for the
Beneficiaries (as defined in the Security Deed) to hold the security
created by the Security Documents on the terms set out in the Security
Deed. However, where this Agreement provides for the Agent to
communicate with or provide instructions to the Security Agent, while
the Agent and the Security Agent are the same entity, it will not be
necessary for there to be any such formal communications or
instructions notwithstanding that this Agreement provides in certain
cases for the same to be in writing.
18.2 Agent's actions
Any action taken by the Agent under or in relation to this Agreement
with requisite authority, or on the basis of appropriate instructions,
received from the Majority Banks (or as otherwise duly authorised)
shall be binding on all the Banks.
18.3 Agent's duties
The Agent shall:
(a) promptly notify each Bank of the contents of each notice,
certificate or other document received by the Agent from any
Borrower or any other Obligor under or pursuant to this
Agreement;
(b) consult with the Banks as to whether and, if so, how a
discretion vested in the Agent is, either in any particular
instance or generally, to be exercised but so that this shall
not prevent the Agent in exceptional circumstances where time
does not permit such consultation and urgent action is
required, from exercising its rights and powers, or from
instructing the Security Agent to exercise its rights and
powers, to preserve the security constituted by the Security
Documents so long as the Agent promptly notifies the Banks
subsequently of such exercise; and
(c) (subject to the other provisions of this clause 18) take such
action or, as the case may be, refrain from taking such action
with respect to the exercise of any of its rights, remedies,
powers and discretions as agent or security agent, as the
Majority Banks may reasonably direct.
18.4 Agent's rights
The Agent may:
(a) in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly
provided for by this Agreement, act or, as the case may be,
refrain from acting in accordance with the instructions of the
Majority Banks, and shall be fully protected in so doing;
(b) unless and until it shall have received directions from the
Majority Banks, take such action, or refrain from taking such
action in respect of a Default of which the Agent has actual
knowledge as it shall deem advisable in the best interests of
the Banks (but shall not be obliged to do so);
69
(c) refrain from acting in accordance with any instructions of the
Majority Banks to institute, or to instruct the Security Agent
to institute any legal proceedings arising out of or in
connection with this Agreement and/or the Security Documents
until it and/or the Security Agent, has been indemnified
and/or secured to its satisfaction against any and all costs,
expenses or liabilities (including legal fees) which it and/or
the Security Agent would or might incur as a result;
(d) deem and treat (i) each Bank as the person entitled to the
benefit of the Contribution of such Bank for all purposes of
this Agreement and the Security Documents unless and until a
Transfer Certificate shall have been filed with the Agent and
shall have become effective, and (ii) the office set opposite
the name of each Bank in part A of schedule 1 or, as the case
may be, in any relevant Transfer Certificate as such Bank's
lending office unless and until a written notice of change of
lending office shall have been received by the Agent; and the
Agent may act upon any such notice unless and until the same
is superseded by a further such notice;
(e) rely as to matters of fact which might reasonably be expected
to be within the knowledge of any Obligor upon a certificate
signed by any director of the relevant Obligor on behalf of
such Obligor; and
(f) refrain from doing anything which would, or might in its
opinion, be contrary to any law or regulation of any
jurisdiction and may do anything which is in its opinion
necessary or desirable to comply with any such law or
regulation.
18.5 No liability of Joint Arrangers, Security Agent and Agent
None of the Joint Arrangers, the Security Agent, the Agent or any of
their respective employees and agents shall:
(a) be obliged to request any certificate or opinion under clause
11.1(a) or any provision of the Security Documents or to make
any enquiry as to the use of the proceeds of the Facilities
unless (in the case of the Agent) so required in writing by
any Bank, in which case the Agent shall promptly make the
appropriate request of the relevant Obligor; or
(b) be obliged to make any enquiry as to any breach or default by
any Obligor in the performance or observance of any of the
provisions of this Agreement or as to the existence of a
Default unless (in the case of the Agent) the Agent has actual
knowledge thereof or has been notified in writing thereof by a
Bank, in which case the Agent shall promptly notify the Banks
of the relevant event or circumstance; or
(c) be obliged to enquire whether or not any representation or
warranty made by any Obligor pursuant to this Agreement or any
of the Security Documents is true; or
(d) be obliged to do anything (including, without limitation,
disclosing any document or information) which would, or might
in its opinion, be contrary to any law or regulation or be a
breach of any duty of confidentiality or otherwise be
actionable or render it liable to any person; or
(e) be obliged to account to any Bank for any sum or the profit
element of any sum received by it for its own account; or
(f) be obliged to institute any legal proceedings arising out of
or in connection with, or otherwise take steps to enforce,
this Agreement and/or the Security Documents other than on the
instructions of the Majority Banks; or
(g) be liable to any Bank for any action taken or omitted under or
in connection with this Agreement and/or the Security
Documents or the Loan unless caused by its gross negligence or
wilful misconduct.
For the purposes of this clause 18 neither the Agent, nor the Security
Agent shall be treated as having actual knowledge of any matter of
which the corporate finance or any other division outside the agency or
loan administration department of the person for the time being acting
as the Agent or the Security Agent, as the case may be, may become
aware in the context of corporate finance, advisory or lending
activities from time to time undertaken by the Agent or the Security
Agent, as the case may be, for the Borrowers or any of its Subsidiaries
or Associated Companies or any other person which may be a trade
competitor of any of the Obligors or may otherwise have commercial
interests similar to those of any of the Obligors.
70
18.6 Non-reliance on Joint Arrangers, Security Agent or Agent
Each Bank acknowledges, by virtue of its execution of this Agreement
or, as the case may be, a Transfer Certificate, that it has not relied
on any statement, opinion, forecast or other representation made by the
Joint Arrangers, the Security Agent or the Agent to induce it to enter
into this Agreement and that it has made and will continue to make,
without reliance on the Agent, the Security Agent or the Joint
Arrangers and based on such documents as it considers appropriate, its
own appraisal of the creditworthiness of each Borrower and its
Subsidiaries and its own independent investigation of the financial
condition, prospects and affairs of each Borrower and its Subsidiaries
in connection with the making and continuation of the Loan under this
Agreement. None of the Joint Arrangers, the Security Agent or the Agent
shall have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other
information with respect to the Obligors whether coming into its
possession before the making of any Drawing or at any time or times
thereafter, other than (in the case of the Agent) as provided in clause
18.3(a).
18.7 No Responsibility on Joint Arrangers, Security Agent or Agent for any
Obligor's performance
None of the Joint Arrangers, the Security Agent or the Agent shall have
any responsibility or liability to any Bank:
(a) on account of the failure of any Obligor to perform its obligations under
this Agreement or any Security Document; or
(b) for the financial condition of any Obligor; or
(c) for the completeness or accuracy of any statements, representations or
warranties in this Agreement, any Security Document or the Information
Memorandum or any document delivered under this Agreement or any Security
Document; or
(d) for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement or any of the
Security Documents or of any certificate, report or other document executed
or delivered under this Agreement or any of the Security Documents; or
(e) otherwise in connection with the Facilities or its negotiation or for
acting (or, as the case may be, refraining from acting) in accordance with
the instructions of the Majority Banks.
18.8 Reliance on documents and professional advice
The Joint Arrangers, the Security Agent and the Agent shall be entitled
to rely on any communication, instrument or document believed by it to
be genuine and correct and to have been signed or sent by the proper
person and shall be entitled to rely as to legal or other professional
matters on opinions and statements of any legal or other professional
advisers selected or approved by it (including those in the Agent's
employment).
18.9 Other dealings
The Joint Arrangers, the Security Agent and the Agent may, without any
liability to account to the Banks, accept deposits from, lend money to,
and generally engage in any kind of banking or other business with, and
provide advisory or other services to, the Borrowers or any of its
Subsidiaries or Associated Companies or any of the Banks as if it were
not a Joint Arranger, the Security Agent or the Agent, as the case may
be.
18.10 Rights of Agent as Bank: no partnership
With respect to its own Commitment and Contribution (if any) the Agent
shall have the same rights and powers under this Agreement and the
Security Documents as any other Bank and may exercise the same as
though it were not performing the duties and functions delegated to it
under this Agreement and/or the Security Documents and the term "Banks"
shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity as a Bank. This Agreement shall not
and shall not be construed so as to constitute a partnership between
the parties or any of them.
71
18.11 Amendments: waivers
(a) Subject to clause 18.11(b), the Agent may, with the consent of the Majority
Banks (or if and to the extent expressly authorised by the other provisions
of this Agreement) and, if so instructed by the Majority Banks, shall (i)
agree amendments or modifications to this Agreement with the Obligors
and/or (ii) vary or waive breaches of; or defaults under, or otherwise
excuse performance of; any provision of this Agreement by any Obligor. Any
such action so authorised and effected by the Agent shall be documented in
such manner as the Agent shall (with the approval of the Majority Banks)
determine, shall be promptly notified to the Banks by the Agent and
(without prejudice to the generality of clause 18.2) shall be binding on
all the Banks.
(b) Except with the prior written consent of all the Banks, the Agent shall not
have authority on behalf of the Banks (A) to agree with any Obligor any
amendment or modification to this Agreement or to grant waivers in respect
of breaches or defaults or to vary or excuse performance of or under this
Agreement by any Obligor, if the effect of such amendment, modification,
waiver, variation or excuse would be to (i) reduce the Margin, (ii)
postpone the due date or reduce the amount of any reduction in
availability, any payment of principal, interest, commitment commission or
other amount payable by any Obligor under this Agreement or any of the
Security Documents, (iii) change the currency in which any amount is
payable by any Obligor under this Agreement or any of the Security
Documents, (iv) increase any Bank's Commitment, (v) change the definition
of "Majority Banks" in clause 1.2, (vi) change any provision of this
Agreement which expressly or impliedly requires the approval or consent of
all the Banks such that the relevant approval or consent may be given
otherwise than with the sanction of all the Banks, (vii) change clause 4.1,
(viii) change the order of distribution under clause 8.10, (ix) change
clause 16.2, (x) change this clause 18.11 or (B) release any asset from the
security created by any of the Security Documents unless such release is to
permit the disposal or other dealing with such asset in accordance with the
terms of this Agreement and any relevant Security Document or (C) release
any Guarantor from its obligations under any Guarantee to which it is a
party other than pursuant to a merger in accordance with clause 11.2(b).
(c) For the purposes of this clause 18.11 it is expressly agreed and
acknowledged that the execution of a Guarantor's Deed of Accession or any
deed or instrument pursuant to a further assurance provision in the
Security Documents shall not constitute an amendment or modification to, or
variation of, this Agreement or any of the Security Documents.
18.12 Reimbursement and indemnity by Xxxxx
Each Bank shall reimburse each Joint Arranger and the Agent (rateably
in accordance with such Bank's Commitment or Contribution), to the
extent that such Joint Arranger or the Agent is not reimbursed by the
Obligors, for the costs, charges and expenses incurred by that Joint
Arranger or the Agent in connection with the negotiation, preparation
and execution of this Agreement and the Security Documents and/or in
contemplation of, or otherwise in connection with, the enforcement or
attempted enforcement of, or the preservation or attempted preservation
of any rights under, or in carrying out its duties under, this
Agreement and/or any of the Security Documents including (in each case)
the fees and expenses of legal or other professional advisers. Each
Bank shall on demand indemnify the Agent (rateably in accordance with
its Commitment or Contribution) against all liabilities, damages, costs
and claims whatsoever incurred by the Agent in connection with this
Agreement and the Security Documents or the performance of its duties
under this Agreement and the Security Documents or any action taken or
omitted by the Agent under this Agreement and/or any of the Security
Documents, unless such liabilities, damages, costs or claims arise from
the Agent's own gross negligence or wilful misconduct.
18.13 Retirement of Agent
(a) The Agent may retire from its appointment as Agent under this Agreement
having given to the Borrowers and each of the Banks not less than 30 days'
prior written notice of its intention to do so, provided that no such
retirement shall take effect unless there has been appointed by the Xxxxx
as a successor agent:
(i) a Bank nominated by the Majority Banks with the
consent of the Borrowers (not to be unreasonably
withheld or delayed) or, failing such a nomination,
(ii) any reputable and experienced bank or financial
institution with offices in London nominated by the
Agent with the consent of the Borrowers (not to be
unreasonably withheld or delayed).
72
Any corporation into which the Agent may be merged or
converted or any corporation with which the Agent may be
consolidated or any corporation resulting from any merger,
conversion, amalgamation, consolidation or other
reorganisation to which the Agent shall be a party shall, to
the extent permitted by applicable law, be the successor Agent
under this Agreement without the execution or filing of any
document or any further act on the part of any of the parties
to this Agreement, save that notice of any such merger,
conversion, amalgamation, consolidation or other
reorganisation shall forthwith be given to UPCF and the Banks.
(b) Upon any such successor as aforesaid being appointed, the retiring Agent
shall be discharged from any further obligation under this Agreement (but
shall continue to have the benefit of this clause 18 in respect of any
action it has taken or refrained from taking prior to such discharge) and
its successor and each of the other parties to this Agreement shall have
the same rights and obligations among themselves as they would have had if
such successor had been a party to this Agreement in place of the retiring
Agent. The retiring Agent shall (at the reasonable expense of UPCF) provide
its successor with copies of such of its records as its successor
reasonably requires to carry out its functions under this Agreement.
18.14 Change of Reference Xxxxx
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (b) the Commitment (if any) of any Reference Bank is reduced
to zero in accordance with clause 6.5 or 15.1, (c) a Reference Bank
transfers the whole of its rights and obligations (if any) as a Bank
under this Agreement or (d) any Reference Bank ceases to provide
quotations to the Agent for the purposes of determining EURIBOR or
LIBOR (as the case may be), the Agent may, acting on the instructions
of the Majority Banks, terminate the appointment of such Reference Bank
and after consultation with the Borrowers appoint another Bank to
replace such Reference Bank.
18.15 Prompt distribution of proceeds
Moneys received by the Security Agent pursuant to the exercise of (or
otherwise by virtue of the existence of) any rights and powers under or
pursuant to any of the Security Documents shall be paid to the Agent
for distribution in accordance with the terms of the Security Deed and
shall be distributed by the Agent as soon as is practicable after the
relevant moneys are received by, or otherwise become available to, the
Agent save that (without prejudice to any other provision contained in
any of the Security Documents) the Agent (acting on the instructions of
the Majority Banks) may credit any moneys received by it to a suspense
account for so long and in such manner as the Agent may from time to
time determine with a view to preserving the rights of the Finance
Parties or any of them to prove for the whole of their respective
claims against any Obligor or any other person liable.
73
Notices and other matters
19.1 Notices
Every notice, request, demand or other communication under this
Agreement shall:
(a) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(b) be deemed to have been received, subject as otherwise provided in this
Agreement, in the case of a letter when delivered and, in the case of a
telefax, when a complete and legible copy is received by the addressee
(unless the date of despatch is not a business day in the country of the
addressee or the time of despatch of any telefax is after the close of
business in the country of the addressee in which case it shall be deemed
to have been received at the opening of business on the next such business
day); and
(c) be sent:
(i) to each Obligor at:
Fred Roeskestraat 123
PO Box 74763
1070 BT Amsterdam
Telefax: 00 31 20 578 9861
Attention: Managing Director of Treasury and General
Counsel
(ii) to the Agent and Security Trustee at:
Xxxxxx Xxxxx
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 0171 638 2551
Attention: Manager - Credit Administration
(iii) to the Joint Arrangers at:
Bank of America International Limited
New Broad Street House
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 00 44 181 313 2140
Attention: Xxxxxx Xxxxxx
copy to:
Telefax: 0171 282 6810
Attention: Xxxxxxx Xxxxx
CIBC World Markets plc
Cottons Centre
Cottons Lane
London SE1 2QL
Telefax: 0171 234 6433
Attention: Supervisor, Banking Services
Citibank, N.A.
PO Box 2OO
Cottons Centre
Xxxx Xxxx
London SE1 2QT
Telefax: 00 44 171 500 2331
Attention: Xxxxxx Xxxxxxx
MeesPierson N.V.
Coolsingel 93,
3012 AE
Rotterdam
The Netherlands
Telefax: 0031 10 401 5906
Attention: Mr. Xxx-Xxxxx Post
74
Paribas
0 xxx x'Xxxxx
00000 Xxxxx
Telefax: 00 331 42 98 09 79
Attention: X. Xx Xxxxxxxxx/X. Xxxxxx/X. Xxxxxx
Telefax: 00 331 42 98 29 45
Attention: X. Xxxxxxx
The Royal Bank of Scotland plc
000-000 Xxxxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 0171 427 9920
Attention: Media and Telecommunications Team
Toronto Dominion Bank Europe Limited
Triton Court
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 0171 638 2551
Attention: Manager, Loans Agency
(iv) to each Bank
at its address or telefax number specified in part
A of schedule 1 or in any relevant Transfer
Certificate
or to such other address or telefax number as is notified by
the relevant party to the other parties to this Agreement.
19.2 Notices through the Agent
Every notice, request, demand or other communication under this
Agreement to be given by any Obligor to any other party shall be given
to the Agent for onward transmission as appropriate and to be given to
the Obligors (or any of them) shall (except as otherwise provided in
this Agreement) be given by the Agent.
19.3 No implied waivers remedies cumulative
No failure or delay on the part of the Finance Parties or any of them
to exercise any power, right or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise
by the Finance Parties or any of them of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy. The remedies provided in this Agreement
are cumulative and are not exclusive of any remedies provided by law.
19.4 English translations
All certificates, instruments and other documents to be delivered under
or supplied in connection with this Agreement (other than the Licences
and Principal Agreements referred to in schedule 3) shall be in the
English language or shall be accompanied by a certified English
translation upon which the Agent, the Joint Arrangers and the Banks
shall be entitled to rely.
19.5 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
75
19.6 No breach of Austrian Agreements
The Banks confirm, and authorise the Agent to confirm, that if they,
the Agent or the Security Agent become majority shareholders in CNA
following enforcement of the CNA Share Security they will not, and they
will not instruct the Agent or the Security Agent to, require CNA to
take any advice which would to their knowledge, after taking advice,
constitute a breach of the Austrian Agreements in their form at the
date of this Agreement if such action would also constitute a breach of
the Austrian Agreements in their form at the date on which such action
is taken. This confirmation, however, does not constitute (a) a waiver
of any rights the Banks, the Agent or the Security Agent may have under
the Austrian Agreements as such shareholders or (b) a guarantee of
CNA's obligations under the Austrian Agreements. The Banks do not have
authority to bind any third party which becomes a shareholder in CNA,
whether following enforcement of the CNA Share Security or otherwise,
but the Banks agree that if they, the Agent or the Security Agent
dispose of shares in CNA, upon enforcement of the CNA Share Security,
or as shareholders in CNA, following enforcement of the CNA Share
Security, otherwise than by means of a public offer, public sale or
public auction they will make such disposal on terms that the acquirer
gives confirmation in the same terms as this clause 19.6.
Governing law and Jurisdiction
20.1 Law
This Agreement shall be governed by English law.
20.2 Submission to jurisdiction
The parties to this Agreement agree for the benefit of the Finance
Parties that:
(a) if any party has any claim against any other arising out of or
in connection with this Agreement such claim shall (subject to
clause 20.2(c)) be referred to the High Court of Justice in
England, to the jurisdiction of which each of the parties
irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over
any such claim against the any Finance Party shall be an
exclusive jurisdiction and no courts outside England shall
have jurisdiction to hear or determine any such claim; and
(c) nothing in this clause 20.2 shall limit the right of the
Finance Party to refer any such claim against any Obligor to
any other court of competent jurisdiction outside England, to
the jurisdiction of which each Obligor hereby irrevocably
agrees to submit, nor shall the taking of proceedings by any
Finance Party before the courts in one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
20.3 Agent for service of process
Each Obligor irrevocably designates, appoints and empowers HRO
Registrars Limited at present of Xxxxxxxxx House, 00 Xxxxxx Xxx, Xxxxxx
X0X 0XX to receive for it and on its behalf service of process issued
out of the High Court of Justice in England in relation to any claim
arising out of or in connection with this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
76
Schedule 1
Part A - The Banks and their Commitments
------------------------------ --------------------------------------- -------------------- ==================
Name Address and telefax number Column 1 Facility A Column 2
Commitment Facility B
Euro Commitment
Euro
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
Citibank, N.A. 0 Xxxxx Xxx 96,750,000 32,250,000
Suite 200
Newcastle
DE 19720
USA
Telefax: 000 000 000 6144/39
Attention: Xxxx Xxxxxxx
Xxxxx Xxxxxx
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
MeesPierson N.V. Coolsingel 93, 96,750,000 32,250,000
3012AE
Rotterdam, The Netherlands
Telefax: 00 31 10 401 6118
Attention: Xx X.X. Xxxxxxxxx/X.
Xxxxxx
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
NB International Finance B.V. Parnassustoren 96,750,000 32,350,000
Xxxxxxxxxxxxx 0
XX Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Notices to:
Loans Services
00 Xxxxxxxx Xxxx
Xxxxxxx
Xxxx XX0 0XX
Telefax: 0181 313 2140
Attention: Xxxxxx Xxxxxx
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
Paribas 0 xxx x'Xxxxx 00,000,000 32,250,000
75002 Paris
Telefax: 00 331 42 98 09 79
Attention: D. De Paillerets/
X. Xxxxxx/
X. Xxxxxx
copy to:
Telefax: 00 331 4298 2945
Attention: X. Xxxxxxx
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
The Toronto-Dominion Bank Triton Court 96,750,000 32,250,000
14/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 0171 638 2551
Attention: Loans Administration
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
CIBC World Markets plc Cottons Centre 80,625,000 26,875,000
Cottons Xxxx
Xxxxxx XX0 0XX
Telefax: 0171 234 6433
Attention: Manager, Banking
Services Department
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
The Royal Bank of Scotland Corporate Banking Office 80,625,000 26,875,000
plc PO Box 000
0-00 Xxxxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 0171 220 7370
Attention: Loans
Administration
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
Xxxxxxx Xxxxx Credit 00 Xxxxx Xxxxxx 00,000,000 12,500,000
Partners L.P. New York
NY 10004
USA
Notices to:
Xxxxxxx Xxxxx International
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 0171 774 6337
Attention: Xxxxx
Xxxxxxxxxxxx/
Xxxxxxxx Xxxxxxxx
Copy to:
Telefax: 0171 774 8598
Attention: Xxxxxxx Xxxxxx
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
The Chase Manhattan Bank 125 London Wall 37,500,000 12,500,000
London EC2Y 5AJ
Notices to:
Chaseside
Bournemouth
BH7 7DB
Telefax: 01202 342020
Attention: Xxxx Xxxxx
------------------------------ --------------------------------------- -------------------- ==================
------------------------------ --------------------------------------- -------------------- ==================
DLJ Capital Funding, Inc. 000 Xxxx Xxxxxx 30,000,000 10,000,000
9th Floor
New York
NY 10172
Telefax: 001 212 610 6031
Attention: Xxxxx Xxxxxxxx
Xxxxxxxxx Xxxxxxx
------------------------------ --------------------------------------- -------------------- ==================
Part B - Original Guarantors
========================================= ------------------------------ ================================
Company Country of Incorporation Address
----------------------------------------- ------------------------------ ================================
Cable-Networks Austria Holding B.V. The Netherlands Frederik Roeskestraat 123
1076 EE Amsterdam
The Netherlands
----------------------------------------- ------------------------------ ================================
----------------------------------------- ------------------------------ ================================
Stipdon Investments B.V. The Netherlands Xxxxxxxx Xxxxxxxxxxxx 123
1076 EE Amsterdam
The Netherlands
----------------------------------------- ------------------------------ ================================
----------------------------------------- ------------------------------ ================================
Radio Public S.A. Belgium 000, xxxxxx Xxxxxxx
0000 Xxxxxxxx, Xxxxxxx
----------------------------------------- ------------------------------
========================================= ------------------------------ ================================
UPC Facility B.V. The Netherlands Xxxxxxxx Xxxxxxxxxxxx 123
1076 EE Amsterdam
The Netherlands
========================================= ============================== ================================
TeleKabel Hungary N.V. The Netherlands Xxxxxxxx Xxxxxxxxxxxx 123
1076 EE Amsterdam
The Netherlands
========================================= ============================== ================================
Part C - Borrowers
========================================= ------------------------------ ================================
Company Country of Incorporation Address
----------------------------------------- ------------------------------ ================================
UPC Facility B.V. The Netherlands Frederik Roeskestraat 123
1076 EE Amsterdam
The Netherlands
----------------------------------------- ------------------------------ ================================
----------------------------------------- ------------------------------ ================================
TeleKabel Wien G.m.b.H Austria Erlachgasse 116, 1100 Wien,
Austria
----------------------------------------- ------------------------------ ================================
----------------------------------------- ------------------------------ ================================
Xxxxx Multicom A/S Norway Ensj0veien 7, 0655 Oslo Norway
----------------------------------------- ------------------------------ ================================
Schedule 2
Form of Drawdown Notice
To: The Toronto-Dominion Bank
Triton Court
00-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Manager, Loans Agency
Agreement dated _______ 1999 (as from time to time amended, varied, extended,
restated, refinanced or replaced, the "Agreement")
We refer to the Agreement and hereby give you notice that [[if the Borrower is
UPCF or Xxxxx only] we wish to draw down a [Revolving Drawing of ! on o for a
Revolving Period of ! months] a [Term Drawing of o on o [with an initial
Interest Period of o months] [if the Borrower is Telekabel Wien only] we wish to
issue a Telekabel Note in the nominal amount of o on o [for a Revolving Period
of o months] [with an initial Interest Period of o months]. The funds should be
credited to [name and number of account] with [details of bank in [principal
financial centre for the relevant Optional Currency]].
We confirm that:
1* so far as we are aware, no event or circumstance has occurred and is
continuing or will result from the making of such Drawing which
constitutes a Default; and
2* the representations and warranties contained in clauses 10.1 and 10.2
of the Agreement to be repeated in accordance with clause 10.4 of the
Agreement are true and correct as at the date of this notice as if made
with respect to the facts and circumstances existing at the date of
this notice.
(A) *In the case of a Revolving Drawing if the aggregate Euro
Amount of Revolving Drawings outstanding after such Revolving
Drawing would exceed the aggregate Euro Amount of Revolving
Drawings outstanding prior to that drawing (after taking into
account any Revolving Drawing due to be made or repaid on the
Drawdown Date of such Revolving Drawing;
[[If the Borrower is Telekabel Wien only] We enclose a Telekabel Note in respect
of the drawdown requested by this notice.]
UPCF confirms that Annualised Consolidated EBITDA in the most recently delivered
Quarterly Management Account was [ ].
UPCF confirms that the ratio of Senior Debt (including for these purposes, the
amount of the Drawing the subject of this notice) to Adjusted Annualised
Consolidated EBITDA as calculated from the most recently delivered Quarterly
Management Accounts delivered to the Agent under the Agreement was [ ].]
UPCF confirms that the ratio of Senior Debt (including for these purposes, the
amount of the Drawing the subject of this notice) to Annualised Consolidated
EBITDA as calculated from the most recently delivered Quarterly Management
Accounts delivered to the Agent under the Agreement was [ ].]
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of UPC Facility
B.V.
...................................................
For and on behalf of
[relevant Borrower if not UPC Facility B.V.]
...................................................
Schedule 3
Part I
Documents and evidence required prior to the giving of the
Drawdown Notice in respect of the first Drawing
(a) A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of UPCF, of the constitutive documents of each
Obligor amended as agreed between UPCF and the Agent.
(b) A copy, certified as a true copy by an Authorised Officer of UPCF of an
extract of the minutes of the Supervisory Board of Directors of
Telekabel Wien dated 28 May 1999 authorising a credit limit of ATS
2,500,000,000 and a copy of a letter from Telekabel Wien dated 21 July
1999 confirming that such authorised credit limit has not been
exceeded.
(c) A copy, certified as a true copy by an Authorised Officer of UPCF, of
each of (i) resolutions of the Board of Directors of each Obligor
(except Telekabel Wien) and UPC evidencing approval of this Agreement
and the Security Documents to which they are a party and authorising
their respective appropriate officers to execute and deliver this
Agreement and such Security Documents and to give all notices and take
all other action required by such Obligor or UPC thereunder and (ii)
an extract from the minutes of the Board of Supervisory Directors of
UPC approving the terms and conditions of this Agreement, and (iii) a
resolution of the Board of Supervisory Directors of TeleKabel Hungary
evidencing approval of this Agreement and the Security Documents to
which it is a party. In summary:
-------------------------------- -----------------------------------------------
(i) Board resolution of UPC (vi) Board Resolution of TeleKabel Hungary
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
(ii) Extract of
Supervisory
Board minutes of
UP (vii) Supervisory Board Resolution of
TeleKabel Hungary
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
(iii) Board Resolution of CNA (viii) Board Resolution of UPCF
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
(iv) Board Resolution of Stipd (ix) Board Resolution of Radio Public
-------------------------------- -----------------------------------------------
-------------------------------- -----------------------------------------------
(v) Board resolution of Xxxxx
-------------------------------- -----------------------------------------------
(d) A resolution of the Board of Directors of Belmarken evidencing their
approval of the Sale and Purchase Agreement and the Security Documents
to which it is a party and authorising its appropriate officers to
execute and deliver the Sale and Purchase Agreement and such Security
Documents and to give all notices and take all other action required by
Belmarken.
(e) Specimen signatures, authenticated by an Authorised Officer of UPCF, of
the persons authorised in the resolutions referred to in paragraphs
(b), (c) and (d) above.
(f) An original power of attorney executed by Xxxxxxxxx Xxxx.
(g) A resolution of the shareholders of each Obligor incorporated in the
Netherlands evidencing the approval of the shareholders of each such
Obligor of the Agreement and the Security Documents by approving the
board resolutions made by each such Obligor being:
(i) resolution of the shareholders of CNA;
(ii) resolution of the shareholders of TeleKabel Hungary;
(iii) resolution of the shareholders of UPCF; and
(iv) resolution of the shareholders of Stipdon.
(h) A resolution of the shareholders of Xxxxx evidencing approval of the
shareholders of Xxxxx to the terms of this Agreement and the
obligations of Xxxxx thereunder.
(i) A resolution of the shareholders of Belmarken evidencing approval of
the shareholders of Belmarken to the terms of the Sale and Purchase
Agreement and the Security Documents to which it is a party and the
obligations of Belmarken thereunder.
(j) A copy, certified as a true copy by an Authorised Officer of UPCF, of
all consents, authorisations, licences and approvals required by each
Obligor and UPC to authorise, or required by each Obligor and UPC in
connection with, the execution, delivery, validity, enforceability and
admissibility in evidence of this Agreement and the Security Documents
to which they are a party and the performance by the relevant members
of the Restricted Group and UPC of their respective obligations under
this Agreement and the Security Documents.
(k) A copy, certified as a true copy by an Authorised Officer of UPCF, of a
letter from each Obligor's and UPC's agent for receipt of service of
process referred to this Agreement and in the Security Deed, accepting
its appointment.
(l) The Disclosure Letter.
(m) The proforma unaudited combined financial statements of the Restricted
Group and the audited consolidated financial statements of the UPC
Group for the financial year ended on 31 December 1998 referred to in
clause 10.1(f)(i) and the Quarterly Management Accounts referred to in
clause 10.1(f)(ii).
(n) A copy of the Management Base Case.
(o) Copies, certified by the Authorised Officer of UPCF to be true, complete and
up to date copies of:
(i) all updates and amendments to the Licences (in respect of the
Austrian Licences, the Belgian Licences and the Norwegian
Licences since 8 October 1997 and in respect of the Hungarian
Licences since 7 October 1998);
(ii) the Interconnect Agreements;
(iii) the Hungarian Agreement; and
(iv) the Austrian Agreements.
(p) A brokers letter relating to insurances.
(q) Executed copies of the Sale and Purchase Agreements referred to in
paragraphs (i) and (ii) of the definition of Sale and Purchase
Agreements including the notarial deed of transfer of shares in Stipdon
and UPC Slovakia Holding B.V.
(r) The release of the pledge of shares in Telekabel Hungary granted by
Stipdon in connection with the Facility Agreement dated 7 October 1998
between Telekabel Hungary and the other parties referred to therein.
(s) Letter of approval of The First Hungary Fund regarding the obligations of
Telekabel Hungary.
(t) Letter from UPCF to the Agent notifying the Agent of the acquisition of
any company or business which operates in Eastern Europe (as referred
to in paragraph (d) of the definition of Permitted European
Acquisition).
Part II
Documents and evidence required to be provided prior to the first Drawing
(a) An opinion of Xxxxxx Xxxx, dated not more than five Banking Days prior
to the first Drawdown Date, in a form acceptable to the Agent.
(b) The Security Documents listed below duly executed by the relevant
Obligor and/or by UPC and/or by the other members of the Restricted
Group party thereto together with all documents, deeds, notices and
certificates required to be delivered pursuant to the terms thereof and
the original powers of attorney and board resolutions referred to below
in connection therewith:
Security Document
(i) the Telekabel Hungary Share Security (Dutch law)
(ii) the Stipdon Share Security (Dutch law)
(iii) the pledge by UPC over its shares in UPCF (Dutch law)
(iv) the CNA Share Security (Dutch law)
(v) the RP Share Security (Belgian law)
(vi) the pledge by UPC over its shares in Xxxxx (Norwegian law)
(vii) the Relevant Person Pledge of Shareholder Loans (Dutch law)
(viii) the Borrower Pledge of Shareholder Loans (Dutch law)
(ix) the Security Deed (English law)
(A) Powers of Attorney required in relation to execution of the Share Securities
------------------------------------------------------ ----------------------------------------------------
(i) Power of attorney of UPCF in relation to (vi) Power of attorney of UPC in relation to
the Stipdon Share Security the pledge of its shares in UPCF
------------------------------------------------------ ----------------------------------------------------
------------------------------------------------------ ----------------------------------------------------
(ii) Power of attorney of Stipdon in relation to (vii) Power of attorney of UPCF in relation to
the Stipdon Share Security the pledge of UPC's shares in UPCF
------------------------------------------------------ ----------------------------------------------------
------------------------------------------------------ ----------------------------------------------------
(iii) Power of attorney of UPC in relation to the (viii) Power of attorney of UPC in relation to
RP Share Security the CNA Share Security
------------------------------------------------------ ----------------------------------------------------
------------------------------------------------------ ----------------------------------------------------
(iv) Power of attorney of Stipdon in relation to (ix) Power of attorney of CNA in relation to
the TeleKabel Hungary Share Security the CNA Share Security
------------------------------------------------------ ----------------------------------------------------
------------------------------------------------------ ----------------------------------------------------
(v) Power of attorney of TeleKabel Hungary in
relation to the TeleKabel
Hungary Share Security
------------------------------------------------------ ----------------------------------------------------
(B) Xxxxxx of Attorney required in relation to the execution of the Borrower
Pledge of Shareholder Loans
------------------------------------------- ----------------------------------
(i) UPC Slovakia Holding BV (iv) UPC Czech Holding BV
------------------------------------------- ----------------------------------
------------------------------------------- ----------------------------------
(ii) Stipdon (v) UPCF
------------------------------------------- ----------------------------------
------------------------------------------- ----------------------------------
(iii) UPC Romania Holding BV
------------------------------------------- ----------------------------------
(C) Powers of Attorney required in relation to the execution of the
Relevant Person Pledge of Shareholder Loans
--------------------------------------------
(i) UPC
--------------------------------------------
--------------------------------------------
(ii) UPC Intermediates B.V.
--------------------------------------------
--------------------------------------------
(iii) Belmarken
--------------------------------------------
(D) Board Resolutions required in relation to the execution of Borrower
Pledge of Shareholder Loans, the Relevant Person Pledge of Shareholder
Loans and the Security Deed
(in each case evidencing approval of each such document and authorising
the respective appropriate officers of each company to execute and
deliver each document to which it is a party and to give all notices
and take all other action required by such company)
------------------------------------------- ---------------------------------
(i) UPC Romania Holding BV (iii) UPC Slovakia Holding BV
------------------------------------------- ---------------------------------
------------------------------------------- ---------------------------------
(ii) UPC Czech Holding BV (iv) UPC Intermediates B.V.
------------------------------------------- ---------------------------------
(c) A confirmation from The Toronto-Dominion Bank of all amounts
outstanding under the Existing UPC Senior Facility to be repaid for
value 30 July 1999 and confirming the security granted in connection
with the Existing UPC Senior Facility which is to be released on the
date of the first Drawing under this Agreement and that the Existing
UPC Senior Facility shall be irrevocably cancelled on receipt of such
amount.
Security to be released on the date of the first Drawing
(i) UPC pledge of its shares in CNA (Dutch law)
(ii) UPC pledge of its shares in Radio Public (Belgian law)
(iii) UPC pledge of its shares in Xxxxx (Norwegian law)
(d) Notice of cancellation of the Existing UPC Senior Facility effective on
the date of the first Drawing under this Agreement.
(e) Foreign legal opinions
o An opinion of Xxxxxx, Poch, Xxxxxxxxx Rechtsanwalte OEG,
special legal advisers to the Banks in Austria, dated not more
than five Banking Days prior to the first Drawdown Date, in a
form acceptable to the Agent.
o An opinion of Xxxxxxx, Xxx Xxxxxxxxxx & Faures, special legal
advisers to the Banks in Belgium, dated not more than five
Banking Days prior to the first Drawdown Date, in a form
acceptable to the Agent.
o An opinion of Xxxxxxx Xxx Xxxxxx, special legal advisers to
the Banks in the Netherlands, dated not more than five Banking
Days prior to the first Drawdown Date, in a form acceptable to
the Agent.
o An opinion of Wiersholm, Xxxxxxx & Xxxx, special legal
advisers to the Banks in Norway, dated not more than five
Banking Days prior to the first Drawdown Date, in a form
acceptable to the Agent.
(f) An extract from the trade register of the Chamber of Commerce of each
Obligor incorporated in The Netherlands.
(g) A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of UPCF, of the shareholders' register of each
Obligor incorporated in The Netherlands other than Stipdon Investments
BV.
(h) A letter from the Norwegian Bankruptcy Register confirming that as of
the first Drawdown Date, Xxxxx has not been reported from the local
probate courts to the said register bankrupt.
(i) Originals of the notice of assignment of dividends and acknowledgement
of notice duly signed by UPC and acknowledged by Xxxxx, as set out in
exhibits 1 and 2 to the pledge given by UPC in respect of its
shareholding in Xxxxx.
(j) A letter from Xxxxxxxxx, Xxxxxx & Xxxxxxxx and Xxxxxxx Xxxxx
International to the Security Agent confirming that the pricing of the
High Yield Notes has taken place and the Security Agent has received
assurances that closing will occur concurrently with the first Drawing
under this Agreement.
(k) The deed of termination in respect of the Existing UPC Senior Facility.
(l) The release of the pledge granted by UPC of its shares in CNA in
connection with the Existing UPC Senior Facility together with a power
of attorney of each of UPC and CNA in connection with such release.
(m) The release of the pledge granted by UPC of its shares in Radio Public
in connection with the Existing UPC Senior Facility.
(n) The release of the pledge granted by UPC of its shares in Xxxxx in
connection with the Existing UPC Senior Facility.
(o) An opinion of Xxxxx Xxxxxxx & Xxxx XXX, legal advisers to the
Borrowers, confirming that the entry into of the Facilities by the
Borrowers will not result in any default under the United GlobalCom,
Inc.
Indentures dated 5th February 1998 and 29 April 1999.
(p) The release letter in respect of the Austrian Security.
Schedule 4
Calculation of Additional Cost
1 The Additional Cost shall be calculated by the Agent in respect of each
period for which it falls to be calculated relating to an Drawing in
accordance with the following formulae:
In relation to each Sterling Drawing:
[OBJECT OMITTED]
In relation to each other Drawing:
[OBJECT OMITTED]
Where:
C = The amount required to be held as a non-interest
bearing cash ratio deposit with the Bank of England
expressed as a percentage of an eligible
institution's eligible liabilities (above any stated
minimum).
F = The amount of Sterling per (pound)1,000,000 of the
fee base of an authorised institution payable to the
Financial Services Authority per annum (disregarding
any minimum fee payable under the Fees Regulations).
L = The rate of interest per annum at which Sterling
deposits are offered by the Agent to leading banks in
the London Interbank Market at or about 11.00 a.m. on
the date of calculation for a period comparable to
the period for which the Additional Cost is to be
calculated.
S = The amount required to be placed as special
deposits with the Bank of England, expressed as a
percentage of an eligible institution's eligible
liabilities (above any stated minimum).
Y = The fraction of foreign currency liabilities taken
into account under the Fees Regulations in
calculating the fee base (disregarding any offset for
claims on non-resident offices).
Z = The lower of L and the rate of interest per annum
paid by the Bank of England on special deposits at or
about 11.00 a.m. on the date of calculation.
2 For the purposes of calculating the Additional Cost:
(a) C, L, S and Z are included in the formula as numbers and not as
percentages, e.g. if C = 0.15 per cent.
and L = 7 per cent. CL is calculated as 0.15 x 7;
(b) the formula is applied on the first day of each period for
which it falls to be calculated (and the result shall apply
for the duration of such period);
(c) each amount is rounded up to the nearest four decimal places; and
(d) if the formulae produce a negative percentage, the percentage shall be taken
as zero.
3 If alternative or additional financial requirements are imposed by the
Bank of England, the Financial Services Authority or any other United
Kingdom governmental authority or agency which in the Agent's opinion
(after consultation with the Banks) make the formulae (or either of
them) no longer appropriate, the Agent shall be entitled by notice to
the Borrower to stipulate such other formulae as shall be suitable to
apply in substitution for the formulae. Any such other formulae so
stipulated shall take effect in accordance with the terms of such
notice.
4 In this schedule 4:
"authorised" and "institution" have the meanings given to those terms
in the Banking Act 1987;
"Bank of England Act" means the Bank of England Act 1998;
"eligible institution" has the meaning given to that term in schedule 2
to the Bank of England Act;
"eligible liabilities" has the meaning given to that term in the Cash
Ratio Deposits (Eligible Liabilities) Order 1998 or the applicable
substitute order made under the Bank of England Act as is in force on
the date of application of the formulae;
"fee base" has the meaning given to that term in the Fees Regulations.
"Fees Regulations" means the Banking Supervision (Fees) Regulations
1999 or the applicable substitute regulations made under the Bank of
England Act as are in force on the date of application of the formulae;
and
"special deposits" has the meaning given to that term by the Bank of
England on the date of application of the formulae.
Schedule 5
Form of Transfer Certificate
Banks are advised not to employ Transfer Certificates without first ensuring
that the transaction complies with all applicable laws and regulations,
including the Financial Services Act 1986 and regulations made thereunder.
To: The Toronto-Dominion Bank
Triton Court
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Manager, Loans Agency
Transfer Certificate
This Transfer Certificate relates to an Agreement (as from time to time amended,
varied, extended, restated, refinanced or replaced, the "Agreement") dated !
1999 between UPC Facility B.V., Telekabel Wien GmbH and Xxxxx Multicom A/S as
Borrowers (1), the entities listed in part B of schedule 1 thereto as Original
Guarantors (2), Bank of America International Limited, CIBC World Markets plc,
Citibank, N.A., MeesPierson N.V., Paribas, The Royal Bank of Scotland plc and
Toronto Dominion Bank Europe Limited as Joint Arrangers (3), the banks and
financial institutions whose respective names and addresses are set out in part
A of schedule 1 thereto as Banks (4), The Toronto-Dominion Bank as Agent (5),
and The Toronto-Dominion Bank as Security Agent (6). Terms defined in the
Agreement shall have the same meaning in this Transfer Certificate.
1 [Name of Tansferor Bank] (the "Transferor Bank") (a) confirms the
accuracy of the summary of its Commitment and Contribution set out in
the schedule to this Transfer Certificate; and (b) requests [Transferee
Bank] (the "Transferee") to accept and procure the transfer to the
Transferee of the portion of its Commitment and Contribution specified
in the schedule to this Transfer Certificate by counter-signing and
delivering this Transfer Certificate to the Agent at its address for
the service of notices specified in the Agreement.
2 The Transferee requests the Agent (on behalf of itself, the other
Secured Parties, the Obligors, the Subordinated Creditors and the
Security Providers) to accept this Transfer Certificate as being
delivered to the Agent pursuant to and for the purposes of clause 17.4
of the Agreement, so as to take effect in accordance with its terms on
[date of transfer], [being not earlier than 5 Banking Days after date
of delivery of the Certificate to the Agent] (the "Effective Date").
3 The Agent (on behalf of itself and the other parties to the Agreement
and the Security Deed) confirms the assignment and transfer effected by
this Transfer Certificate pursuant to and for the purposes of clause
17.4 of the Agreement.
4 The Transferee confirms:
(a) that it has received a copy of the Agreement, the Security
Deed and all other Security Documents and other documentation
and information required by it in connection with the
transactions contemplated by this Transfer Certificate;
(b) that it has made its own assessment of the execution,
effectiveness, adequacy, genuineness, validity, enforceability
and admissibility in evidence of the Agreement, the Security
Documents and this Transfer Certificate and has not relied and
will not rely on the Transferor Bank or any statements made by
the Transferor Bank in that respect;
(c) that it has made and will continue to make its own appraisal
of the creditworthiness of the members of the Restricted
Group, the Subordinated Creditors and the Security Providers
and its own independent investigation of the financial
condition, prospects and affairs of the members of the
Restricted Group, the Subordinated Creditors and the Security
Providers and has not relied and will not rely on the
Transferor Bank or any other Secured Party or any statement,
opinion, forecast or other representation made by the
Transferor Bank or any other Secured Party in that respect;
(d) accordingly, neither the Transferor Bank nor any other Secured
Party shall have any liability or responsibility to the
Transferee in respect of any of the foregoing matters; and
(e) it is a Qualifying Bank.
5 Execution of this Transfer Certificate by the Transferee constitutes
its representation to the Existing Bank and all other parties to the
Agreement and the Security Deed that it has power to become party to
the Agreement and the Security Deed as a Bank on the terms herein and
therein set out and has taken all necessary steps to authorise
execution and delivery of this Transfer Certificate.
6 The Transferee hereby undertakes to the Existing Bank, the Obligors,
the Subordinated Creditors, the Security Providers and the other
Secured Parties that it will perform in accordance with their terms all
those obligations which by the respective terms of the Agreement, the
Security Deed and all other Security Documents will be assumed by it
after acceptance of this Transfer Certificate by the Agent.
7 The Transferee acknowledges that the Existing Bank has no obligation to
repurchase or reacquire any of the rights and obligations transferred
by virtue of this Transfer Certificate or to support, indemnify or
compensate the Transferee for any losses suffered by the Transferee as
a consequence of the transfer effected by virtue of this Transfer
Certificate.
8 This Transfer Certificate and the rights and obligations of the parties
hereunder are governed by and shall be construed in accordance with
English law.
Note: This Transfer Certificate is not a security, bond, note, debenture,
investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
The Schedule
Amount of Contribution Next Interest Payment Date Portion transferred
Euro Euro
Amount of Portion transferred
Facility A Euro
Commitment
Euro
Administrative Details of Transferee
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
[Transferor Bank] [Transferee]
By: By:
Date: Date:
The Agent
By:
on its own behalf
and on behalf of the other parties to the Agreement and the Security Deed
Date:
Schedule 6
Part A - Compliance Certificate to be delivered by an Authorised Officer of UPCF
or UPC
The Toronto-Dominion Bank
Triton Court
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Manager, Loans Agency [Date]
Dear Sirs
Euro 1,000,000,000 Credit Facilities
Loan and Note Issuance Agreement dated [ ], 1999 (as from time to time amended,
varied, extended, restated, refinanced or replaced the "Loan and Note Issuance
Agreement")
We refer to the Loan and Note Issuance Agreement and deliver this Certificate in
respect of the Quarterly Period ended [Quarter Day] pursuant to clause
11.1(i)(i) thereof. Terms defined in the Loan and Note Issuance Agreement shall
have the same meaning when used in this Certificate.
We confirm that on or as of the last day of the Quarterly Period ending [o]:
1 Consolidated EBITDA for the Quarterly Period ending on
[Quarter Day] was [ ] [insert calculation details].
2 Annualised Consolidated EBITDA calculated by reference to the Six Month
Period ending on [Quarter Day] was [ ] [insert calculation details]
3 1Adjusted Annualised Consolidated EBITDA calculated by reference to the
Six Month Period ending on [Quarter Day] was [insert calculation
details].
4 As at [Quarter Day] Senior Debt was [ ] [insert calculation
details].
5 Senior Debt Cash Interest Charges for the 6 month period
ending on [Quarter Day] were [ ] [insert calculation details].
6 2Pro-Forma Senior Debt Service for the twelve months commencing [o] is [o].
Based on the above, we confirm that on [Quarter Day]:
1 The ratio of Senior Debt to Adjusted Annualised Consolidated EBITDA was [o]
[insert calculation details].
2 The ratio of Senior Debt to Annualised Consolidated EBITDA was [o] [insert
calculation details]. 3 The ratio of Consolidated EBITDA to Senior Debt Cash
Interest Charges was [o] [insert calculation
details].
4 The ratio of Annualised Consolidated EBITDA to Pro Forma Senior Debt
Service was [o] [insert calculation details].
5 Excess Cash Flow was [o].
Accordingly, we confirm that [save as disclosed in this certificate] on [Quarter
Day] the Borrowers were in compliance with those covenants contained in clause
12.1 inclusive of the Loan and Note Issuance Agreement which were applicable as
at [Quarter Day].
We further confirm that the combined, consolidated total assets, consolidated
revenues and consolidated EBITDA of each Borrower and its Subsidiaries as at the
date of this Agreement, each Original Guarantor and its Subsidiaries as at the
date of this Agreement and each Acceding Guarantor and its Subsidiaries as at
the date on which it became a Guarantor is not less than 90 per cent. of the
consolidated total assets, consolidated revenues and consolidated EBITDA of the
Restricted Group.
We confirm that the representations and warranties contained in clause 10.1 and
clause 10.2 of the Loan and Note Issuance Agreement to be repeated in accordance
with clause 10.4 of the Loan and Note Issuance Agreement, are true and correct
as at the date hereof as if made with reference to the facts and circumstances
existing at such date.
We also confirm that negative EBITDA attributable to New Services in respect of
the Quarterly Period ended [Quarter Day] was [ ].
For and on behalf of
UPCF
.............................
Authorised Officer
Schedule 6
Part B - Compliance Certificate to be delivered by the auditors of UPCF or UPC
The Toronto-Dominion Bank
Triton Court
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Manager, Loans Agency [Date]
Dear Sirs
Euro 1,000,000,000 Credit Facilities
Loan and Note Issuance Agreement dated [ ], 1999 (as from time to time amended,
varied, extended, restated, refinanced or replaced the "Loan and Note Issuance
Agreement")
We refer to the Loan and Note Issuance Agreement and deliver this Certificate in
respect of the financial year ended [year end] pursuant to clause 11.1(i)(i)
thereof. Terms defined in the Loan and Note Issuance Agreement shall have the
same meaning when used in this Certificate.
We confirm that in our opinion:
1 Consolidated EBITDA ending on [year end] was [ ] [insert calculation
details].
2 Annualised Consolidated EBITDA in respect of the financial year ending
on [year end] was [ ] [insert calculation details]
3 1Adjusted Annualised Consolidated EBITDA in respect of the financial
year ending on [year end] was [insert calculation details].
4 As at [the end of [year end]] Senior Debt was [ ]
[insert calculation details].
5 Senior Debt Cash Interest Charges for the financial year
ending on [year end] were [ ] [insert calculation details].
6 2Pro-Forma Senior Debt Service for the twelve months commencing [o] is [o].
7 Negative EBITDA attributable to New Services for the financial year
ending on [year end] was [ ] [insert calculation details].
Based on the above, we confirm that on [year end]:
1 The ratio of Senior Debt to Adjusted Annualised Consolidated EBITDA was [o]
[insert calculation details]
2 The ratio of Senior Debt to Annualised Consolidated EBITDA was [o] [insert
calculation details]. 3 The ratio of Consolidated EBITDA to Senior Debt Cash
Interest Charges was [o] [insert calculation
details].
4 The ratio of Annualised Consolidated EBITDA to Pro Forma Senior Debt
Service was [o] [insert calculation details].1
5 Excess Cash Flow was [o].
Accordingly, we confirm that in our opinion [and save as disclosed in this
Certificate] as at [year end] the Borrowers were in compliance with those
covenants contained in clause 12.1 of the Loan and Note Issuance Agreement which
were applicable as at [year end].
We further confirm that the combined, consolidated total assets, consolidated
revenues and consolidated EBITDA of each Borrower and its Subsidiaries as at the
date of this Agreement, each Original Guarantor and its Subsidiaries as at the
date of this Agreement and each Acceding Guarantor and its Subsidiaries as at
the date on which it became a Guarantor is not less than 90 per cent. of the
consolidated total assets, consolidated revenues and consolidated EBITDA of the
Restricted Group.
We also further confirm that negative EBITDA attributable to New Services has
not exceeded Euro 50,000,000 in aggregate for the period from 30 June 1999 to
the financial year ending on [year end] unless funded by UPC by means of a new
cash Subordinated Shareholder Loan or by a cash subscription for equity share
capital of UPCF no more than 45 days after such excess occurred.
For and on behalf of
UPCF
..............................
Auditors
Schedule 7
Registrations and Licences
A: Austrian Licences
"Austrian Licences" means the following documents and agreements:
(a) Telekabel Wien
(i) Gewerbeschein dated 5th November 1981
(ii) Gewerbeschein dated 30th October 1979
(iii) Konzessionsdekret dated 8th October 1981
(iv) Fernmeldebewilligung dated 13th September 1993
(v) Wegerechte: Bescheld der Germeinde Wien dated 1st March 1978
(vi) Gewerbeschein dated 7th May 1999
(vii) Bescheid of the Telekom-Control-Kommission dated 9th March 1998
(b) Telekabel Graz GmbH
(i) Gewerbeschein dated 22nd April 1980
(ii) Gewerbeschein dated 7th May 1984
(iii) Fernmeldebewilligung dated 24th October 1995
(iv) Elektrotechnikergewerbebewillingung dated 30th October 1998
(c) Telekabel Klagenfurt GmbH
(i) Gewerbeschein dated 10th November 1980
(ii) Gewerbeschein dated 16th December 1982
(iii) Fernmeldebewilligung dated 17th January 1995
(iv) Elektrotechnikergewerbebewillingung dated 9th December 1998
(d) Telekabel-Fernsehnetz Baden Betriebsgesellschaft mbh
(i) Gewerbeschein dated 4th December 1981
(ii) Fernmeldebewillignung dated 26th July 1990 held by Kabel - TV - Sud
GmbH (minority shareholder)
(e) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen Betriebsgesellschaft
mbh
(i) Gewerbeschein dated 10th April 1980
(ii) Gewerbeschein dated 26th June 1984
(iii) Fernmeldebewilligung dated 25th July 1990 held by Kabel-TV-Wiener Neustadt
GmbH (minority shareholder).
B: Belgian Licences
"Belgian Licences" means the following documents and agreements:
1 Brussels area:
(a) Municipality of Etterbeek:
Licence given by settlement agreement dated 26 May 1997 and
authorisation dated 19 May 1969.
(b) Municipality of Schaerbeek
Authorisation dated 21 October 1969.
(c) Municipality of Koekelberg
Authorisation dated 21 October 1969.
(d) Municipality of Jette and Ganshoren
Authorisation dated 6 February 1970.
(e) Municipality of Berghem-St-Agathe
Authorisation dated 22 December 1970.
(f) Municipality of Forest
Authorisations dated 21 December 1970 and 3 January 1978.
(g) Municipality of Schaarbeek and Forest
Authorisation dated 3 January 1978.
2 Leuven area:
(a) Municipality of Heverlee and Kessel-Lo
Authorisation dated 1971.
(b) Municipality of Leuven
Authorisation dated 1971.
3 Telecommunications services
(a) Letter of the Belgian Institute for Postal Services and
Telecommunications ("BIPT") authorising Radio Public to provide
Internet access through the company's public telecommunications
structure;
(b) Letter of the BIPT authorising Radio Public to operate a public
telecommunications system service as of 9 May 1997, in the territories
of Etterbeek, Shaerbeek, Koekelberg, Jette, Ganshoren,
Berchem-St.-Agathe, Forest and Leuven.
(c) Letter of BIPT informing Radio Public of the approval by the Minister
of Telecommunications on 3 August 1998 of the geographical extension of
Radio Public's permit of 9 May 1997 for the operation of a public
telecommunications structure to 76 communes;
(d) Letter of 21 April 1999 from Minister Xxxxxx, Minister of Scientific
Policy, authorising Radio Public to operate its business of radio and
television distribution to the communes of Anderlecht, Oudergem,
Brussels, Evere, Elsene, Sint-Xxxx-Xxxxxxxxx, Sint Xxxxxx,
Sint-Joost-ten-Noode, Ukkel, Watermaal-Bosvoorde,
Sint-Lambrechts-Woluwe and Sint-Pieters-Woluwe taking effect on 21
April 1999.
(e) Letter of the BIPT, dated January 1999, for the establishment and
exploitation of a public telecommunication network, with a copy of the
authorisation by the Minister dated 22 January 1999, the official
individual authorisation and a certificate in Dutch from the BIPT.
C: Hungarian Licences
"Hungarian Licences" means the following documents and agreements:
ANFEL-KABELKOM KABELKOMMUNIKACIOS KFT.
Licence dated 12th May, 1998 issued by the Communication Inspectorate
of West Hungary to Anfel-Kabelkom Kabelkommunikacios Kft.
HAJDU-KABELKOM KABELKOMMUNIKACIOS KFT.
Licence dated 9th April, 1998 issued by the Communication Inspectorate
of North Hungary to Xxxxx Xxxxxxxx, Kabelkommunikacios Kft.
KABELKOM -DUNAUJVAROS KABELKOMMUNIKACIOS KFT.
Licence dated 28th April, 1998 issued by the Communication Inspectorate
of South Hungary to Kabelkom-Dunaujvaros Kft.
KABELKOM-NYIREGYHAZA KABELKOMMUNIKACIOS KFT.
Licence dated 28th January, 1999 issued by the Communication
Inspectorate of North Hungary to Kabelkom-Nyiregyhaza
Kabelkommunikacios Kft.
KABELKOM-PECSI KABELTELEVIZIO KFT.
Licence dated 23rd May, 1997 issued by the Communication Inspectorate
for Pecs Region to Kabelkom Xxxxx Kabeltelevizio Kft.
KABELKOM-SZEKESFEHERVAR KABELKOMMUNIKACIOS KFT.
Licence dated 13th May, 1998, issued by the Communication Inspectorate
of West Hungary to Kabelkom-Szekesfehevar Kabelkommunikacios Kft.
KABELKOM-SZOLNOK KABELKOMMUNIKACIOS KFT.
Licence dated 27th April, 1998, issued by the Communication
Inspectorate of East Hungary to Kabelkom-SzOLNOK Kabelkommunikacios
Kft.
Modification of above Licence dated 11th May 1998 issued by the
Communication Inspectorate of East Hungary to Kabelkom-Szolnok
Kabelkommunikacios Kft.
KABELKOM-VESZPREM KABELKOMMUNIKACIOS KFT.
Licence dated 12th May, 1998, issued by the Communication Inspectorate
of West Hungary to Kabelkom Veszprem Kabelkommunikacios Kft.
TELESTAR- KABELKOM KABELKOMMUNIKACIOS KFT.
Licence dated 13th May, 1998 issued by the Communication Inspectorate
of North Hungary to Telestar Kabelkom Kabelkommunikacios Kft.
MISKOLCI KABEL-TV KFT.
Licence dated 8th May, 1998 issued by the Communication Inspectorate of
North Hungary to Miskolci Kabel-TV Kft.
KABELTEL SOPRON KABELTELEVIZIOS SZOLGALTATO KFT.
("Kabeltel Sopron Kft")
Licence dated 9th March, 1999 issued by the Communication Inspectorate
of West Hungary to Kabeltel Sopron Kft.
KABELTEL-ELEKTRA KABELTELEVIZIOS SZOLGALTATO KFT.
("Kabeltel-Elektra Kft")
Licence dated June 30, 1998, issued by the Communication Inspectorate
of West Hungary to Kabeltel-Elektra Kft.
GLOBAL BUDAPEST KABELTELEVIZIOS KFT. ("Global Kft")
Licence dated 13th May, 1999 issued by the Communication Inspectorate
of West Hungary to Global Kft.
KABELTEL KANIZSA KABELTELEVIZIOS KFT. ("Kabeltel Kanizsa Kft")
For the territory of Nagykanizsa:
Licence dated June 8, 1998, issued by the Communication Inspectorate of
South Hungary to Xxxxxxxx Xxxxxxx Xxx.
For the territory of Mor:
Licence dated 4th March, 1999 issued by the Communication Inspectorate
of West Hungary to Kabeltel Kanizsa Kft.
KABELTEL BUDAPEST KABELTELEVIZIOS SZOLGALTATO KFT. ("Kabeltel Budapest
Kft")
Licence dated 19th December, 1998 issued by the Budapest Communication
Inspectorate to Kabeltel Budapest Kft.
D: Norwegian Licences
"Norwegian Licences" means the following documents and licences
relating to Xxxxx:
(a) List of registered providers of public telephony and public
telephone services from the Norwegian Telecommunications
Authority (the "PTA") dated May 31, 1999.
(b) Assignment of number series from the PTA dated April 24, 1998.
(c) Assignment of prefix number 1503 from the PTA dated May 25, 1998.
(d) License for point to multipoint system from the PTA dated March 27,
1998.
(e) Temporary license for test projects from the Ministry of Cultural
Affairs dated March 27, 1998.
(f) Temporary license for the establishment of a registry for
personal data from the Norwegian Data Protection Authority
dated February 15, 1999.
(g) Authorisation to provide installation services relating to
cable networks dated November 21, 1996.
Schedule 8
Interconnect Agreements
1 The interconnect agreement between Telenor Nett AS and Xxxxx dated 15
March, 1999.
2 The interconnection order made by the Austrian Telekom Control
Kommission dated 5 October, 1998 governing the interconnection
arrangements between Telekabel Wien and Telekom Austria AG.
Schedule 9
Part A - Guarantor's Deed of Accession
To: THE TORONTO-DOMINION BANK as Security Agent
From: [PROPOSED GUARANTOR] and [UPCF]
Date: [o]
UPCF Euro 1,000,000,000 Loan and Note Issuance Agreement dated o, 1999 (as from
time to time amended, varied, extended, restated, refinanced or replaced the
"Facility Agreement")
We refer to clause 9.17 of the Facility Agreement. Words and expressions defined
in the Facility Agreement have the same meanings when used in this Deed.
We, [name of company] of [address] agree to become an Acceding Guarantor and to
be bound by the terms of the Facility Agreement as an Acceding Guarantor in
accordance with clause 9.17 of the Facility Agreement and the Security Deed as a
Guarantor in accordance with clause 9.6 of the Security Deed.
[Local law limitations on amounts guaranteed by Acceding Guarantor (if any)]
Our address for notices for the purposes of clause 19.1 of the Facility
Agreement is:
[o]
This Deed is intended to be executed as a deed and is governed by English law.
[PROPOSED GUARANTOR] [UPCF]
[Appropriate execution clause] [Appropriate execution clause]
By: By:
By:
SECURITY AGENT
[Appropriate execution clause]
By:
Schedule 9
Part B - Documents and Evidence to be delivered by an Acceding Guarantor
(a) Guarantor's Deed of Accession, duly executed under seal by the Acceding
Guarantor and the Borrower;
(b) (if required by the terms of clause 9.17 of this Agreement) a Share
Security over the shares of the Acceding Guarantor, duly executed as a
deed by the parties to it (the "Relevant Shareholders");
(c) a copy of the constitutional documents of each of the Acceding
Guarantor and (if a Share Security is to be provided pursuant to
paragraph (b) above) the Relevant Shareholders;
(d) a copy of a resolution of the board of directors of each of the
Acceding Guarantor and (if a Share Security is to be provided pursuant
to paragraph (b) above) Relevant Shareholders approving the terms of,
and the transactions contemplated by, the Guarantor's Deed of
Accession, the relevant Security Documents (if any) (as appropriate)
and authorising its appropriate officers to execute and deliver the
Guarantor's Deed of Accession, the relevant Security Documents (as
appropriate) and give all notices and take all other action required by
it under the Finance Documents;
(e) a certificate of a director of the Acceding Guarantor certifying that
the amounts to be guaranteed by the Acceding Guarantor would not cause
any guaranteeing limit binding on it to be exceeded;
(f) a copy of any other authorisation or other document, opinion or
assurance which is necessary for the execution, delivery and validity
and enforceability of the Guarantor's Deed of Accession, the relevant
Security Documents or the Share Security (if any);
(g) a specimen of the signature of each person authorised by a resolution
referred to in paragraph (f) above;
(h) if available, a copy of the latest audited accounts of the Acceding
Guarantor;
(i) a legal opinion of English legal advisers, acceptable to the Agent,
addressed to the Security Agent Guarantor on behalf of the
Beneficiaries (as defined in the Security Deed)
(j) if the Acceding Guarantor and/or a Relevant Shareholder is incorporated
in a jurisdiction outside England, a legal opinion of legal advisers,
reasonably acceptable to the Agent, in the jurisdiction of
incorporation of the Acceding Guarantor and/or Relevant Shareholder (as
appropriate), addressed to the Security Agent Guarantor on behalf of
the Beneficiaries (as defined in the Security Deed) with respect to the
matters provided for in the legal opinions referred to in schedule 3;
(k) a certificate of an authorised signatory of the Acceding Guarantor and
each Relevant Shareholder certifying that each copy document specified
in part B of this schedule 9 and relating to it is correct, complete
and in full force and effect as at a date no earlier than the date of
the Guarantor's Deed of Accession or relevant Security Documents (as
appropriate);
(l) a certificate of an authorised signatory of UPCF confirming that its
constitutional documents have not been amended (or, if they have,
enclosing a copy of the amended constitutional documents) and that all
authorisations and resolutions authorising its appropriate officers to
execute and deliver the Guarantor's Deed of Accession remain in full
force and effect;
(m) if applicable, share certificates and stock transfer forms executed in
blank and all other documents required to be delivered to the Security
Agent in connection with the relevant Share Security; and
(n) such other documents as the Agent may reasonably require after taking
the advice of the legal advisers referred to in paragraphs (i)and (j)
above.
Schedule 10
Form of Quarterly Management Accounts/Monthly Information
Cable Television - Statistics
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Operating Statistics Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Homes in Franchise Area
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Homes Passed (serviceable)
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
% of Homes Passed in Franchise Area
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Subscribers
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Basic
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Enhanced Basic
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Premium
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Pay Per View Events
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Other
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Penetration
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Basic
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Enhanced Basic
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Premium
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Average revenue per subscriber
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Lifeline
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Basic
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Enhanced Basic
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Premium
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Pay Per View Events
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Other Key Statistics
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Number of Employees (period end)
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Hit Ratio (PPV)
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
First Connections
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Reconnections
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Disconnections
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Xxxxx Xxxx (basic subscribers)
-------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Cable Telephony - Statistics
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Operating Statistics Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes in Franchise Area
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes Passed (serviceable)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business Passed (serviceable)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Homes Passed in Franchise Area
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Bus. Passed in Franchise Area
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Subscribers
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Lines Served
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Penetration
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Average revenue per subscriber
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Average revenue per line
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Key Statistics
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Number of Employees (period end)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Lines per subscriber
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
First Connections
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Reconnections
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Disconnections
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Churn Rate (total subscribers)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cable Dataservices - Statistics
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Operating Statistics Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes in Franchise Area
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes Passed (serviceable)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Businesses Passed (serviceable)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Homes Passed in Franchise Area
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Bus. Passed in Franchise Area
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Subscribers
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business - Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business - Medium Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business - Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Subscribers
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Penetration
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Average revenue per subscriber
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Small Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Medium Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Large Office
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Key Statistics
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Number of Employees (period end)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
First Connections
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Reconnections
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Disconnections
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Churn Rate
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Profit and Loss Account (NLG `000)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Profit & Loss Acccount Montly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Revenue
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Cable Television
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Cable Telephony
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Cable Dataservices
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Other
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total revenue
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Direct Costs
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Cable Television
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Cable Telephony
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Cable Dataservices
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Other
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Direct Costs
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Expenses
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Expenses
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- Franchise Fees
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Expenses
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Net Operating Income/(Loss)/EBITDA
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% NOI versus Revenue
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Depreciation and Amortisation
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Management Fee/GSA
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Internal Financial Expenses/(Income)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
External Financial Expenses/(Income)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Business (Income)/Charges
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Income/(Loss) Before Taxes
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Dividend Income
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Income Taxes
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Minority Share
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Income Unconsolidated Companies
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Income
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Net Income/(Loss)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cash Flow Statement (NLG `000)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cash Flow Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Sources of Operation
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Net Income/(Loss)
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Add: Depreciation & Amortisation
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Increase/(Decrease) in Working
Capital
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- plus Management Fees payable
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- less Management Fees paid
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Sources of Operation
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Investments
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cable Television
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cable Telephony
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cable Dataservices
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Capex Other
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Investments
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Financing
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Internal Financing
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
External Financing
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Senior Facility
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Bankloans
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Financing Sources
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Increase/(Decrease) in Cash
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Beginning Cash Balance
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Exchange Rate Adjustment BB
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Ending Cash Balance
-------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Balance Sheet (NLG `000)
--------------------------------------- ----------------- ----------------- ------------------
Assets Monthly Monthly Variance
[Month,Year] [Month,Year]
Actual Budget
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
ASSETS
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Gross Intangible Fixed Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Accumulated Amortisation
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Net Intangible Fixed Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Gross Tangible Fixed Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Accumulated Depreciation
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Net Tangible Fixed Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Investment in Non Cons. Companies
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Advances
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Loans receivable from Participations
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Loans receivable from Uncons.
Companies
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Non Current Financial Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Stocks and Bonds
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Assets held for sale
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Financial Fixed Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Liquid Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Trade Debtors
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Sundry Debtors
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Prepaid Expenses
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
VAT Receivable
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
IC Receivables from Participations
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
IC Interest Receivable from
Participations
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
IC GSA Receivable from Participations
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Accounts Rec. Uncons. Companies
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Inventory
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Other
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
Total Current Assets
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
--------------------------------------- ----------------- ----------------- ------------------
TOTAL ASSETS
--------------------------------------- ----------------- ----------------- ------------------
Balance Sheet (NLG `000)
---------------------------------------- ---------------- ----------------- -----------------
Liabilities & Capital Monthly Monthly Variance
[Month,Year] [Month,Year]
Actual Budget
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
EQUITY
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Share Capital
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Additional Paid-In Capital Current Year
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Reserves
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Transaction difference
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Retained Earnings
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Result Current Year
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Transl. Adjustm. Result for the Year
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Minority Interest
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Total Shareholders Equity
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Liabilities
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Pensions/Early Retirement
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Deferred Taxes
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Other Provisions
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Total Provisions
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Loans from Participations
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Third Party Term Loan - Facility A
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Long Term Debt
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Trade Creditors
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
IC Accounts Payable Cons. Companies
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Deferred Revenue
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Accrued Liabilities
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Accrued Management Fees
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Accrued Interest
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Subscriber Deposits
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Sundry Creditors
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Total Current Liabilities
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Total Liabilities
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
---------------------------------------- ---------------- ----------------- -----------------
Total Equity & Liabilities
---------------------------------------- ---------------- ----------------- -----------------
Schedule 11
Form of Telekabel Note
Telekabel Wien Gesellschaft m.b.H
[currency][amount]
Bearer Bond (the "Note")
issued subject to the terms and conditions set out below
Vienna [date]
Terms and Conditions
1 Form and denomination
This Note is issued in bearer form. The holder of this Note shall be
entitled to exercise any rights hereunder. The nominal amount of this
Note is [currency][amount].
2 Interest
Interest on this Note shall accrue at [rate] per cent. per annum (being
the aggregate of (a) the applicable Margin (which, unless otherwise
agreed by the issuer shall not exceed 2 per cent. per annum), (b) the
Additional Cost (if the nominal amount is denominated in Sterling and
(c) [LIBOR] [EURIBOR]).
Interest shall be payable on this Note on [[interim interest payment
date] and on] [date of maturity].
3 Term and final maturity
Subject to clause 4 below, this Note shall be redeemed in full on [date
of maturity].
4 Term and Conditions
This Note has been issued on terms and conditions agreed between, inter
alia, Telekabel Wien Gesellschaft m.b.H., Bank of America International
Limited, CIBC World Markets plc, Citibank, N.A., MeesPierson N.V.,
Paribas, The Royal Bank of Scotland plc and The Toronto-Dominion Bank
as Joint Arrangers, The Toronto-Dominion Bank as Agent on behalf of
certain Banks and The Toronto-Dominion Bank as Security Agent. Unless
the context otherwise requires, the words and expressions defined in
such terms and conditions shall have the same meanings when used in
this Note.
Signed
Telekabel Wien Gesellschaft m.b.H.
[Completed under instructions from Telekabel Wien Gesellschaft m.b.H. by the
Agent]
Schedule 12
Norwegian Asset Security
Terms and expressions in this schedule which are not defined in this Agreement
shall have the meaning given to them in the loan agreement dated 8 October 1997
entered into in connection with the Existing UPC Facility.
A Security provided by Norkabel, Kanal 2 A/S ("Kanal"), Norkabel A/S
("NAS") and Oslo Kabelanlegg A/S ("OK")
1 Declaration relating to mortgages over new property by Xxxxxxxx and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
2 Assignment and Notice of Programme Supply Agreements by Norkabel and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
3 Assignment of Insurance Proceeds by Xxxxxxxx, NAS, OK and Kanal, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
4 A Mortgage Deed for NOK 720,000,000 dated 16 November 1989, under the
name of Xxxxx Xxxxxxxxxxxxxx, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med driftsilbeh0r) in
Eidsbergvn. 5, gnr. 52, bnr. 47 in the municipality of Askim, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
5 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under
the name of Drammen Kabel-TV, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbeh0r) in hans
Kjaersgt. 2, gnr. 111, bnr. 248 in the municipality of Drammen, in the
form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
6 A Mortgage Deed for NOK 725,000,000 registered 10 March 1992 under the
name of AS KA-TEL, registered over the Mortgagors' Leased Real Estate
and Appurtenances (leierett med drifstilbeh0r) in gnr. 7613, bnr. 9 in
the municipality of Kongsberg, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
7 A Mortgage Deed for NOK 720,000,000 registered 9 February 1990 under
the name of Xxxx Xxxxx TV, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in Vaerftsgaten
10, gnr. 1, bnr. 2750 in the municipality of Xxxx, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
8 A Mortgage Deed for NOK 720,000,000 registered 31 January 1990 under
the name of 0stfold Kabelnett A/S, registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in
Violgt. 8, gnr. 62, bnr. 111 in the municipality of Halden, in the form
given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
9 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under
the name of Teletransmisjon A/S, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbeh0r) in
Lensmannslia 30, gnr. 50, bnr. 23 parcel A in the municipality of
Asker, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
10 A Mortgage Deed for NOK 720,000,000 registered 13 March 1990 under the
name of West Satellite A/S, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in Xxxxx Xxxxxx
Asane 39, gnr. 88, bnr. 387, 388, 389, 390 and 391 in the municipality
of Bergen, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
11 A Mortgage Deed for NOK 720,000,000 registered 12 September 1990 under
the name of Rogaland Kabelnett A/S, registered over the Mortgagors'
Real Estate and Appurtenances (fast eiendom med drifstilbeh0r) in
Tjensvolltorget 27, gnr. 25, bnr. 161 in the municipality of Stavanger,
in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
12 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 2076 bnr. 169 in
the municipality of Sarpsborg, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
13 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 15, bnr. 661 in the
municipality of Karm0y, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
14 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 188, bnr. 202 in
the municipality of Bergen, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
15 A Mortgage Deed for NOK 725,000,000 dated 5 November 1993, under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 86, bnr. 33 in the
municipality of Frogn, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
16 A Mortgage Deed for NOK 725,000,000 registered 10 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 148, bnr. 834 and
306 in the municipality of Karm0y, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
17 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 16, bnr. 109 in the
municipality of Stavanger, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
18 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 150 bnr. 1141 in
the municipality of Kristiansand, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
19 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 38, bnr. 158 in the
municipality of Oslo, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
20 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 24 bnr. 4 in the
municipality of Nedre Xxxxx, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
21 A Mortgage Deed for NOK 725,000,000 registered 20 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 39, bnr. 137 in the
municipality of Ringerike, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
22 A Mortgage Deed for NOK 725,000,000 registered 23 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 30 bnr. 230 in the
municipality of Skedsmo, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
23 A Mortgage Deed for NOK 2,080,000 registered 17 October 1995 under the
name of Norkabel, registered over the Mortgagors' Leased Real Estate
and Appurtenances (leierett med driftstilbeh0r) in gnr. 32, bnr. 279
and 771 in the municipality of Oslo, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
24 A Mortgage Deed for NOK 725,000,000 registered 28 August 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 34, bnr. 14 in the
municipality of R0yken, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
25 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbeh0r) in gnr. 152 bnr. 1756 in the municipality of
Kristiansand, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
26 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 34 bnr. 14 in the municipality of R0yken, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
27 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in
gnr. 12 bnr. 751 in the municipality of Kristiansand, in the form given
to ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
28 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 188 bnr. 202 in the municipality of Bergen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
29 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 38 bnr. 158 in the municipality of Oslo, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
30 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 134 bnr. 8 in the municipality of Drammen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
31 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 132 bnr. 214 in the municipality of Drammen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
32 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in
gnr. 117 bnr. 517 in the municipality of Drammen, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
33 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 17 bnr. 3 in the municipality of Drammen, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
34 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 142 bnr. 6 in the municipality of Lier, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
35 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbeh0r) gnr. 8651 bnr. 1, 114, 115, 116, 117, 118, 119 and 120
in the municipality of Kongsberg, in the form given to ING Bank N.V.,
in connection with the Existing Norkabel Facility, mutatis mutandis;
36 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 12 bnr. 26 in the municipality of Askim, in the
form given to ING Bank N.V., in connection with the Existing Norkabel
Facility, mutatis mutandis;
37 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbeh0r) in gnr. 33 bnr. 500 in the municipality of Haugesund,
in the form given to ING Bank N.V., in connection with the Existing
Norkabel Facility, mutatis mutandis;
B Security provided by Xxxxx Multicom AS
1 Assignment of Receivables by Xxxxx, in a form satisfactory to the
Banks.
2 Declaration of Xxxxx concerning mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement, in a form satisfactory to
the Banks.
3 Pledge of Bank Accounts by Xxxxx, in a form satisfactory to the Banks.
4 Assignment of Insurance Proceeds by Xxxxx, in a form satisfactory to the
Banks.
5 Assignment and Notice of Programme Supply Agreement by Xxxxx, in a for
satisfactory to the Banks.
6 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors
Leased Real Estate and Appurtenances (leierett med driftstilbeh0r) at
Xxxx0xxxxx 0, Xxxx leased pursuant to a Lease Agreement dated 24th June
1997, in a form satisfactory to the Banks.
7 A Declaration of Pledge and Deposit of a new promissory note to be
issued by Xxxxx in the principal amount of NLG75,440,850 which, upon
full repayment of ING Bank B.V., shall replace, supersede and be in
substitution of the unsecured promissory note dated October 26th, 1995
in the principal amount of USD$70,780,401.40 pledged to ING Bank N.V.
in connection with the Existing Nakabel Facility.
C Additional Security
Such other security documents as may be registered in favour of the
Toronto-Dominion Bank to secure amounts outstanding under the Existing
UPC Facility.
Schedule 13
Part A
UPCF Group Structure Chart as at the date of the first Drawing
Please see next page.
Part B
UPCF Group Structure Chart after the Restructuring
Please see next page.
The Borrowers
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
UPC FACILITY B.V. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
TELEKABEL WIEN GmbH )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
XXXXX MULTICOM A/S )
by: )
The Guarantors
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
CABLE-NETWORKS AUSTRIA HOLDING, B.V. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
RADIO PUBLIC S.A. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
UPC FACILITY B.V. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
STIPDON INVESTMENTS B.V. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXXXX
TELEKABEL HUNGARY N.V. )
by: )
The Joint Arrangers
SIGNED for and on behalf of ) XXXXXXX XXXXXXXXX
TORONTO DOMINION BANK EUROPE LIMITED )
by: )
SIGNED for and on behalf of ) XXXXXXX XXXXX
BANK OF AMERICA INTERNATIONAL LIMITED )
by: )
SIGNED for and on behalf of ) XXXXXX XXXX
CIBC WORLD MARKETS PLC )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXX
CITIBANK, N.A. )
by: )
SIGNED for and on behalf of ) XXXX XXXXXXXXX
XXXXXXXXXXX N.V. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXX
XXXXXXX )
by: )
SIGNED for and on behalf of ) SANDFORD WAX
THE ROYAL BANK OF SCOTLAND PLC )
by: )
The Banks
SIGNED for and on behalf of ) XXX XXXXX
THE XXXXX MANHATTAN BANK )
by: )
SIGNED for and on behalf of ) XXXXXX XXXX
CIBC WORLD MARKETS PLC )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXXX
CITIBANK, N.A. )
by: )
SIGNED for and on behalf of ) XXXX XXXXXXXX
XXXXXXX XXXXX CREDIT PARTNERS L.P. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXXXX
DLJ CAPITAL FUNDING, INC. )
by: )
SIGNED for and on behalf of ) XXXX XXXXXXXXX
XXXXXXXXXXX N.V. )
by: )
SIGNED for and on behalf of ) XXXXX XXXX
NB INTERNATIONAL FINANCE B.V. )
by: )
SIGNED for and on behalf of ) XXXXXX XXXX
XXXXXXX )
by: )
SIGNED for and on behalf of ) SANDFORD WAX
THE ROYAL BANK OF SCOTLAND PLC )
by: )
SIGNED for and on behalf of ) XXXXXXX XXXXXXXXX
THE TORONTO-DOMINION BANK )
by: )
The Agent
SIGNED for and on behalf of ) XXXXXXX XXXXXXXXX
THE TORONTO-DOMINION BANK )
by: )
The Security Agent
SIGNED for and on behalf of ) XXXXXXX XXXXXXXXX
THE TORONTO-DOMINION BANK )
by: )
1 Until and including 30th June, 2001 only
2 From and including 30th June, 2002 only
1 Until and including 30th June, 2001 only
2 From and including 30th June, 2002 only
