Saturn Communications Limited
Borrower
Kiwi Cable Company Limited
Guarantor
AUSTAR United Communications Limited
Saturn (NZ) Holding Company Pty Ltd
each a Mortgagor
Toronto Dominion Australia Limited
Agent
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 2
1.3 Collateral and Supplemental Agreement 2
1.4 Transaction Document 2
2. CONDITIONS PRECEDENT 2
3. VARIATIONS TO FACILITY AGREEMENT 3
4. REPRESENTATIONS AND WARRANTIES 3
4.1 Borrower and Guarantor 3
4.2 Mortgagors 4
5. CAPITAL CONTRIBUTION 4
5.1 Capital Contribution Amount 4
5.2 Form of contribution 4
5.3 Obligations not affected 4
5.4 Termination of obligations 5
6. CONSENTS AND ACKNOWLEDGEMENTS 5
6.1 The Borrower 5
6.2 The Guarantor 5
6.3 The Mortgagors 5
6.4 Consent to Variation 6
6.5 The Agent 6
7. VARIATION FEE 6
8. LEGAL COSTS, DUTIES ETC. 6
9. MISCELLANEOUS 6
9.1 Governing law 6
9.2 Facility Agreement in full force 6
9.3 Further assurances 6
9.4 Counterparts 7
9.5 Contracts (Privity) Xxx 0000 7
SECOND SUPPLEMENTAL DEED & CAPITAL CONTRIBUTION made on 29 July 1999
BETWEEN SATURN COMMUNICATIONS LIMITED, NZ Co. No. WN/435672 of 00 Xxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxx ("Borrower")
AND KIWI CABLE COMPANY LIMITED, NZ Co. No. WN/647464 of 00 Xxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxx ("Guarantor")
AND AUSTAR UNITED COMMUNICATIONS LIMITED, ACN 087 695 707 of Xxxxx
00, XXX Xxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
("AUC") and SATURN (NZ) HOLDING COMPANY PTY LTD, ACN 088 052 000
of 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (each a
"Mortgagor")
AND TORONTO DOMINION AUSTRALIA LIMITED, ACN 004 858 020 of Xxxxx 00,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx in its capacity as agent
for the Banks ("Agent")
RECITALS
A. Under the Facility Agreement, the Banks have made available to the Borrower
a syndicated senior secured debt facility.
B. Under the Facility Agreement, the Guarantor has guaranteed to the Banks the
due and punctual performance by the Borrower of the Obligations.
C. Under the Share Mortgages, the Mortgagors have given security for the
payment in full to the Agent of all the Secured Money as defined in the
Share Mortgages.
D. The Borrower and the Guarantor have requested the Agent (acting on the
instructions of the Banks) to vary the terms of the Facility and the Agent
(acting on the instructions of the Banks) has agreed to this request on the
terms contained in this deed.
E. Each Mortgagor acknowledges and consents to the variation of the Facility
Agreement contained in this deed.
F. AUC covenants in favour of the Borrower and the Agent (on behalf of the
Banks) to contribute capital to the Borrower on the terms set out in this
deed.
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
(a) In this deed and in the Recitals:
"Facility Agreement" means the Syndicated Senior Secured Debt
Facility Agreement dated 5 November 1998 (as varied from time to
1
time including by a supplemental deed dated 15 July 1999) between
the Agent, the Borrower, the Guarantor and each of the other
parties referred to as a "Bank" therein.
"Subordinated Debt" means debt which is unsecured and
subordinated to the obligations of the Borrower under the
Facility Agreement (as varied by this deed) and the Transaction
Documents.
"Variation Date" means the date on which the conditions precedent
in clause 2 are satisfied, or such earlier date as notified to
the Borrower by the Agent.
(b) Subject to clause 1.1(a), unless the context indicates a contrary
intention, all terms defined in the Facility Agreement (as varied
by this deed) shall have the same meaning in this deed.
1.2 Interpretation
The provisions of clause 1.2 (Interpretation) of the Facility
Agreement (as varied by this deed) shall be incorporated into this
deed as if set out herein.
1.3 Collateral and Supplemental Agreement
This deed is collateral and supplemental to the Facility Agreement.
1.4 Transaction Document
This deed is a Transaction Document under and for the purposes of the
Facility Agreement and the Securities.
2. CONDITIONS PRECEDENT
The amendments to the Facility Agreement effected by this document are
subject to the conditions precedent that all of the following are
received by the Agent in form and substance satisfactory to the Agent
and to its legal advisers:
(a) (Executed document): this document duly executed by the Borrower,
the Guarantor and the Mortgagors;
(b) (Requisitions): searches and replies to all requisitions of the
Agent and its solicitors in relation to this document, the
Borrower, the Guarantor and the Mortgagors;
(c) (Powers of attorney): certified copies of the powers of attorney,
if any, under which any party (other than the Agent) executes
this deed;
(d) (Legal opinion): a legal opinion from Xxxx Gully and Xxxxxxx Xxx
in a form satisfactory to the Agent; and
2
(e) (Corporate authorisations):
(i) (Australian companies): in the case of each Mortgagor, a
certified copy of:
A. its Constitution; and
B. an extract of a resolution of its board of directors
approving the terms of this deed and authorising its
execution of this deed; and
(ii) (New Zealand companies): in the case of each of the Borrower
and the Guarantor:
A. a certified copy of a resolution or resolution of its
directors approving this deed and authorising its
execution of this deed; and
B. a director's certificate in the form set out in
Schedule 9 to the Facility Agreement (with such
modifications thereto as may be required or agreed by
the Agent) from one of its directors in respect of its
authorisation, execution and performance of this deed.
3. VARIATIONS TO FACILITY AGREEMENT
As from the Variation Date, the Facility Agreement shall be varied as
follows:
(a) (Clause 10.4(b) of the Facility Agreement): "31 December 2000"
referred to in the last line of clause 10.4(b) of the Facility
Agreement is deleted and replaced with "31 March 2001".
(b) (Clause 18.2(a) of the Facility Agreement): "30 September 2000"
referred to in the first line of clause 18.2(a) of the Facility
Agreement is deleted and replaced with "31 December 2000".
(c) (Clause 18.2(b) of the Facility Agreement): "30 September 2000"
referred to in the first line of clause 18.2(b) of the Facility
Agreement is deleted and replaced with "31 December 2000".
(d) (Schedule 2 of the Facility Agreement): Schedule 2 of the
Facility Agreement is varied so that is in the form of Annexure
"A".
4. REPRESENTATIONS AND WARRANTIES
4.1 Borrower and Guarantor
(a) The Borrower and the Guarantor hereby confirm and repeat each of
the representations and warranties made by it in clause 16.1
(except for paragraph 16.1(e)), 16.2 (except for paragraphs (c),
(d), (e) and (f)) and 16.3 of the Facility Agreement (as varied
by this deed) with reference to the facts and circumstances
subsisting as at the date of this deed.
3
(b) The Borrower and the Guarantor hereby represent and warrant in
respect of itself only to each of the Agent and the Banks that no
event has occurred which constitutes an Event of Default or a
Potential Event of Default other than those events which have
already been disclosed to the Agent in writing prior to the date
of this deed.
4.2 Mortgagors
Each Mortgagor hereby confirms and repeats each of the representations
and warranties made by it in clauses 3.1 and 3.2 of the Share Mortgage
to which it is a party with reference to the facts and circumstances
subsisting as at the date of this deed and as if references in those
clauses to "this Mortgage" include this deed.
5. CAPITAL CONTRIBUTION
5.1 Capital Contribution Amount
AUC covenants in favour of the Borrower and the Agent (on behalf of
the Banks) that it will pay to the Borrower (in accordance with this
clause 5) the following amounts ("Capital Contribution Amounts") on or
before the following dates:
Date Amount
31 March 2000 $1,000,000
31 December 2000 $5,000,000
5.2 Form of contribution
(a) All payments by AUC to the Borrower under this clause 5 will be
applied:
(i) as subscription for shares in the Borrower; or
(ii) as subscription for Subordinated Debt,
and the Borrower will complete all subscription or other
documentation, issue share certificates or other evidence and
make such register entries, notifications or filings and take all
other action required to record and implement the issue of such
shares or Subordinated Debt.
(b) If the Borrower is unable for any reason whatsoever to issue
shares in the manner referred to in paragraph (a)(i) above
(including, without limitation, due to its liquidation or other
Event of Insolvency in relation to it), AUC will make its payment
obligation under this clause 5 in the manner set out in paragraph
5.2(a)(ii).
5.3 Obligations not affected
(a) The obligation of AUC to pay the Capital Contribution Amounts
will not be reduced, postponed, determined, delayed or otherwise
4
affected by any failure and/or inability of the Borrower to issue
shares or do any other thing required under clause 5.2.
(b) The Capital Contribution Amounts will not be reduced (in part or
in full) and the obligations of the parties under this deed will
not be affected by the contribution of capital to the Borrower or
any other financial accommodation in favour of the Borrower
provided by the Mortgagors or any other person otherwise than in
accordance with this deed.
5.4 Termination of obligations
The obligations of AUC under this clause 5 shall automatically
terminate upon the first to occur of:
(a) the full and unconditional satisfaction of the Obligations
including, without limitation the payment in full of the Secured
Money; and
(b) such other date as the Agent may agree in writing.
6. CONSENTS AND ACKNOWLEDGEMENTS
6.1 The Borrower
The Borrower hereby unconditionally and irrevocably:
(a) ratifies and confirms to the Agent and the Banks its continuing
obligations under the Facility Agreement (as varied by this deed)
and the Securities to which it is a party; and
(b) acknowledges and agrees that except to the extent of the
variations effected by the provisions of this deed the provisions
of the Facility Agreement and the Securities to which it is a
party shall in all respects apply.
6.2 The Guarantor
The Guarantor hereby unconditionally and irrevocably acknowledges and
agrees that the guarantees and indemnities contained in the Facility
Agreement (as varied by this deed) apply mutatis mutandis to all
obligations of the Borrower to the Agent and the Banks thereunder and
hereby ratifies and confirms to the Agent and the Banks its continuing
liability to the Agent and the Banks pursuant to the Facility
Agreement (as varied by this deed) and the Securities to which the
Guarantor is a party.
6.3 The Mortgagors
Each Mortgagor hereby ratifies and confirms to the Agent and the Banks
its continuing liability to the Agent (as agent for the Banks) and the
Banks pursuant to and subject to the recourse limitation in the Share
Mortgage to which it is a party.
5
6.4 Consent to Variation
Each of the Borrower, the Guarantor and the Mortgagors hereby
irrevocably and unconditionally consents to the provisions of this
deed and to the variation of the Facility Agreement as herein
provided.
6.5 The Agent
The Agent irrevocably and unconditionally acknowledges that it is
acting in accordance with, and enters into this deed and the
variations contemplated and effected by it, in accordance with the
authority and instructions of the Banks.
7. VARIATION FEE
The Borrower will pay to each Bank on the date of its execution of
this Deed a variation fee of 0.20% flat on its Commitment.
8. LEGAL COSTS, DUTIES ETC.
The Borrower shall pay or reimburse the Agent for all stamp duty paid
or payable in relation to this deed and for all reasonable costs and
reasonable expenses (including legal costs as between solicitor and
client) incurred by the Agent or the Banks in drawing, settling,
executing and stamping this deed.
9. MISCELLANEOUS
9.1 Governing law
This deed is to be construed in accordance with the laws applying in
New Zealand and each of the parties hereto submits to the
non-exclusive jurisdiction of the courts and appellate courts of New
Zealand.
9.2 Facility Agreement in full force
(a) Except as varied and supplemented hereby, the Facility Agreement
is declared to be in full force and effect.
(b) The variation of the terms of the Facility Agreement effected
hereby is without prejudice to any other deed, agreement,
instrument, document or arrangement presently in existence as
between the Agent, the Banks and the Borrower, the Guarantor and
the Mortgagors, or any of them (including but not limited to the
Securities), and the rights, powers, remedies and discretions
available to the Agent and the Banks thereunder remain in full
force and effect.
9.3 Further assurances
The Borrower, the Guarantor and each Mortgagor shall, on demand by the
Agent, make, execute, do, perform and provide all such further acts,
agreements, assurances, contracts, deeds, documents, guarantees,
indemnities, instruments, matters and things as the Agent shall
reasonably require to give full effect to this deed and the rights and
obligations of the parties under it.
6
9.4 Counterparts
This deed may be executed in any number of counterparts, all of which
taken together will be deemed to constitute one and the same document.
9.5 Contracts (Privity) Xxx 0000
The Borrower, the Guarantor and each Mortgagor hereby unconditionally
and irrevocably acknowledge and agree that the provisions of this deed
which confer or purport to confer a benefit on the Banks are promises
enforceable at the suit of each Bank as if each Bank was a party to
this deed in accordance with the Contracts (Privity) Act of 1982.
7
EXECUTED as a deed.
SIGNED for and on behalf of SATURN COMMUNICATIONS )
LIMITED, by its attorney: ) /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx ) .........................................
in the presence of: ) (Signature)
/s/ Xxxxxxx St. Xxxx
.....................................................
(Signature of Witness)
Xxxxxxx St. Xxxx
.....................................................
(Name of Witness in Full)
0 X'Xxxxxxx Xx., Xxxxxx
.....................................................
(Address of Witness)
Solicitor
.....................................................
(Occupation of Witness)
SIGNED for and on behalf of KIWI CABLE COMPANY )
LIMITED, by its attorney: ) /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx ) .........................................
in the presence of: ) (Signature)
/s/ Xxxxxxx St. Xxxx
.....................................................
(Signature of Witness)
Xxxxxxx St. Xxxx
.....................................................
(Name of Witness in Full)
0 X'Xxxxxxx Xx., Xxxxxx
.....................................................
(Address of Witness)
Solicitor
.....................................................
(Occupation of Witness)
8
SIGNED for and on behalf of AUSTAR UNITED )
COMMUNICATIONS LIMITED, ACN 087 695 707 by its attorney:) /s/ X. X. Xxxxxxx
X. X. Xxxxxxx ) .........................................
in the presence of: ) (Signature)
/s/ Xxxx Xxxxxxx
.....................................................
(Signature of Witness)
Xxxx Xxxxxxx
.....................................................
(Name of Witness in Full)
Sydney
.....................................................
(Address of Witness)
Solicitor
.....................................................
(Occupation of Witness)
SIGNED for and on behalf of SATURN (NZ) HOLDING COMPANY )
PTY LIMITED, ACN 088 052 000, by its attorney: ) /s/ X. X. Xxxxxxx
X. X. Xxxxxxx ) .........................................
in the presence of: ) (Signature)
/s/ Xxxx Xxxxxxx
.....................................................
(Signature of Witness)
Xxxx Xxxxxxx
.....................................................
(Name of Witness in Full)
Sydney
.....................................................
(Address of Witness)
Solicitor
.....................................................
(Occupation of Witness)
9
SIGNED for and on behalf of TORONTO DOMINION AUSTRALIA )
LIMITED, ACN 004 858 020, by its attorney: ) /s/ Xxxxxxx St. Xxxx
Xxxxxxx St. Xxxx ) .........................................
in the presence of: ) (Signature)
/s/ Xxxx Xxxxxxx
.....................................................
(Signature of Witness)
Xxxx Xxxxxxx
.....................................................
(Name of Witness in Full)
Sydney
.....................................................
(Address of Witness)
Solicitor
.....................................................
(Occupation of Witness)
10
THIS IS THE ANNEXURE "A" REFERRED TO IN THE SECOND SUPPLEMENTAL DEED BETWEEN
SATURN COMMUNICATIONS LIMITED, KIWI CABLE COMPANY LIMITED, SATURN (NZ) HOLDING
COMPANY PTY LIMITED, AUSTAR UNITED COMMUNICATIONS LIMITED AND TORONTO DOMINION
AUSTRALIA LIMITED DATED: 29 July 1999
SCHEDULE 2
RATIOS
PART 1: Operating Ratios
Month Total Debt/Homes Subscribers OR Equivalent
Serviceable Billing Units
($)
January 1999 1,400 13,000 14,500
February 1999 1,400 14,500 16,500
March 1999 1,300 17,000 20,000
April 1999 1,250 20,000 24,000
May 1999 1,200 24,000 28,000
June 1999 1,200 28,000 32,000
July 1999 1,250 27,000 37,000
August 1999 1,300 30,000 42,000
September 1999 1,300 33,000 46,000
October 1999 1,300 36,000 51,000
November 1999 1,300 39,000 55,000
December 1999 1,300 41,000 60,000
March 2000 1,300 45,000 66,000
June 2000 1,300 51,000 72,000
September 2000 1,300 57,000 78,000
December 2000 1,300 62,000 83,000
PART 2: Financial Ratios pre 31 December 2000
Period Ending Minimum EBITDA Minimum Revenue
31 December 1998 (5,250,000) -
31 January 1999 (5,750,000) 700,000
28 February 1999 (5,500,000) 800,000
31 March 1999 (4,250,000) 1,000,000
30 April 1999 (3,750,000) 1,250,000
31 May 1999 (3,250,000) 1,450,000
11
30 June 1999 (3,000,000) 1,750,000
31 July 1999 (3,000,000) 1,700,000
31 August 1999 (2,900,000) 1,900,000
30 September 1999 (2,800,000) 2,100,000
31 October 1999 (2,600,000) 2,300,000
30 November 1999 (2,300,000) 2,500,000
31 December 1999 (2,000,000) 2,600,000
31 March 2000 250,000 9,500,000
30 June 2000 1,250,000 11,000,000
30 September 2000 2,250,000 13,000,000
31 December 2000 3,250,000 14,500,000
PART 3: Financial Ratios post 31 December 2000
3 Month Total Debt/Annualised EBITDA EBITDA/Interest
Period Ending Expense
31 March 2001 6.25 2.00
30 June 2001 6.00 2.00
30 September 2001 5.50 2.00
31 December 2001 5.25 2.00
31 March 2002 5.00 2.50
30 June 2002 4.75 2.50
30 September 2002 4.50 2.50
31 December 2002 4.25 2.50
31 March 2003 4.00 3.00
30 June 2003 3.50 3.00
30 September 2003 3.50 3.00
31 December 2003 3.50 3.00
31 March 2004 3.50 4.00
30 June 2004 3.50 4.00
30 September 2004 3.50 4.00
31 December 2004 3.50 4.00
31 March 2005 3.50 5.00
12
CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
I, Xxxx Xxxx Xxxxxxx (name) Solicitor (occupation), of Xxxxx 00, XXX Xxxxxx
Xxxxxx Xx. (xxxxxxx) Xxxxxxxxx (country), certify that:
1. by deed dated 27 July 1999, Saturn Communications Limited (the "grantor"),
appointed me its attorney on the terms and subject to the conditions set
out in the said deed;
2. at the date of this certificate I have not received any notice or
information of the revocation of that appointment by the commencement of
the liquidation of the grantor, the removal of the grantor from the
register or otherwise; and
3. I have executed the attached document on behalf of the grantor in my
capacity as its attorney under the powers conferred by the said deed.
SIGNED at Sydney this 29th day of July 1999.
/s/ Xxxx Xxxx Xxxxxxx
.............................
Attorney
CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
I, Xxxx Xxxx Xxxxxxx (name) Solicitor (occupation), of Xxxxx 00, XXX Xxxxxx
Xxxxxx Xx. (xxxxxxx) Xxxxxxxxx (country), certify that:
1. by deed dated 27 July 1999, Kiwi Cable Company Limited (the "grantor"),
appointed me its attorney on the terms and subject to the conditions set
out in the said deed;
2. at the date of this certificate I have not received any notice or
information of the revocation of that appointment by the commencement of
the liquidation of the grantor, the removal of the grantor from the
register or otherwise; and
3. I have executed the attached document on behalf of the grantor in my
capacity as its attorney under the powers conferred by the said deed.
SIGNED at Sydney this 29th day of July 1999.
/s/ Xxxx Xxxx Xxxxxxx
.............................
Attorney
CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
I, Xxxxxx Xxxxx Xxxxxxx (name) CFO (occupation), of Xxxxxx Street, Sydney
(address) Australia (country), certify that:
1. by deed dated 27 July 1999, Austar United Communications Ltd. (the
"grantor"), appointed me its attorney on the terms and subject to the
conditions set out in the said deed;
2. at the date of this certificate I have not received any notice or
information of the revocation of that appointment by the commencement of
the liquidation of the grantor, the removal of the grantor from the
register or otherwise; and
3. I have executed the attached document on behalf of the grantor in my
capacity as its attorney under the powers conferred by the said deed.
SIGNED at Sydney this 29th day of July 1999.
/s/ Xxxxxx Xxxxx Xxxxxxx
.............................
Attorney
CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
I, Xxxxxx Xxxxx Xxxxxxx (name) CFO (occupation), of Xxxxxx Street, Sydney
(address) Australia (country), certify that:
1. by deed dated 26 July 1999, Saturn (NZ) Holding Company Pty Limited (the
"grantor"), appointed me its attorney on the terms and subject to the
conditions set out in the said deed;
2. at the date of this certificate I have not received any notice or
information of the revocation of that appointment by the commencement of
the liquidation of the grantor, the removal of the grantor from the
register or otherwise; and
3. I have executed the attached document on behalf of the grantor in my
capacity as its attorney under the powers conferred by the said deed.
SIGNED at Sydney this 29th day of July 1999.
/s/ Xxxxxx Xxxxx Xxxxxxx
.............................
Attorney
CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
I, Xxxxxxx St. Xxxx (name) solicitor (occupation), of 0 X'Xxxxxxx Xxxxxx, Xxxxxx
(address) Australia (country), certify that:
1. by deed dated 26 July 1999, Toronto Dominion Australia Limited, ACN 004 858
020 (the "grantor"), appointed me its attorney on the terms and subject to
the conditions set out in the said deed;
2. at the date of this certificate I have not received any notice or
information of the revocation of that appointment by the commencement of
the liquidation of the grantor, the removal of the grantor from the
register or otherwise; and
3. I have executed the attached document on behalf of the grantor in my
capacity as its attorney under the powers conferred by the said deed.
SIGNED at Sydney this 29th day of July 1999.
/s/ Xxxxxxx St. Xxxx
.............................
Attorney
