EXHIBIT 10.16
CONFORMED COPY
DATED 10TH MARCH 1999
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Borrower
N.V. TELEKABEL (1)
Guaranteed by
CERTAIN SUBSIDIARIES OF
N.V. TELEKABEL (2)
Arranged by
BANK OF AMERICA INTERNATIONAL LIMITED
CITIBANK, N.A.
DEUTSCHE BANK AG LONDON
MEESPIERSON N.V.
PARIBAS (3)
THE BANKS REFERRED TO HEREIN (4)
Overdraft Bank
MEESPIERSON N.V. (5)
Agent
MEESPIERSON N.V. (6)
Security Agent
STICHTING SECURITY AGENT N.V. TELEKABEL (7)
Security Agent Guarantor
MEESPIERSON N.V. (8)
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LOAN AGREEMENT
FOR FACILITIES OF UP TO EURO340,000,000
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XXXXXX XXXX
London
CONTENTS
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CLAUSE HEADING PAGE
1 Purpose and definitions.......................................................................1
1.1 Purpose..............................................................................1
1.2 Definitions..........................................................................2
1.3 Headings............................................................................19
1.4 Construction of certain terms.......................................................19
1.5 Majority Banks......................................................................21
1.6 Agent's opinion.....................................................................21
2 The Facilities...............................................................................22
2.1 Amount..............................................................................22
2.2 Obligations several.................................................................22
2.3 Interests several...................................................................22
3 Conditions...................................................................................23
3.1 Documents and evidence..............................................................23
3.2 General conditions precedent........................................................23
3.3 Waiver of conditions precedent......................................................24
3.4 Notification........................................................................24
3.5 NUON Security.......................................................................24
3.6 Conditions subsequent...............................................................24
4 Advances.....................................................................................26
4.1 Maximum Revolving Advance Outstandings..............................................26
4.2 Drawdown of Revolving Advances......................................................26
4.3 Term and Amount of Revolving Advances...............................................26
4.4 Notification to Banks...............................................................26
4.5 Termination of Commitments..........................................................27
4.6 Repayment of Revolving Advances.....................................................27
4.7 Conversion to a Term Loan and consolidation.........................................27
4.8 Term Advances.......................................................................27
4.9 First Advance.......................................................................28
4.10 Application of proceeds.............................................................28
5 Interest; alternative interest rates.........................................................29
5.1 Normal interest rate................................................................29
5.2 Applicable Margin...................................................................29
5.3 Interest Periods....................................................................29
5.4 Selection of Interest Periods for Term Advances.....................................30
5.5 Determination of Interest Periods for Term Advances.................................30
5.6 Interest for late payment...........................................................30
5.7 Notification of interest periods and interest rates.................................31
5.8 Reference Bank quotations...........................................................31
5.9 Market disruption; non-availability.................................................31
6 The Overdraft Facility.......................................................................33
6.1 The Overdraft Facility..............................................................33
6.2 Terms and conditions................................................................33
6.3 Utilisation, interest and repayment.................................................33
7 Repayment, prepayment and cancellation.......................................................34
7.1 Repayment...........................................................................34
7.2 Voluntary prepayment................................................................34
7.3 Additional voluntary prepayment.....................................................34
7.4 Mandatory prepayment................................................................34
7.5 Amounts payable on prepayment.......................................................35
7.6 Notice of prepayment................................................................36
7.7 Cancellation of Commitments.........................................................36
7.8 Application of prepayments to repayment instalments.................................36
8 Fees and expenses............................................................................37
8.1 Fees................................................................................37
8.2 Expenses............................................................................37
8.3 Value Added Tax.....................................................................38
8.4 Stamp and other duties..............................................................38
8.5 Indemnity...........................................................................38
9 Payments and Taxes; accounts and calculations................................................39
9.1 No set-off or counterclaim; distribution to the Banks...............................39
9.2 Payments by the Banks...............................................................39
9.3 Non-Banking Days....................................................................39
9.4 Agent may assume receipt............................................................39
9.5 Grossing-up for Taxes...............................................................40
9.6 Qualifying Banks....................................................................40
9.7 Claw-back of Tax benefit............................................................41
9.8 Certification to secure a Tax benefit...............................................41
9.9 Bank accounts.......................................................................42
9.10 Partial payments....................................................................42
9.11 Calculations........................................................................43
9.12 Certificates conclusive.............................................................43
9.13 Reconventioning.....................................................................43
10 Guarantee....................................................................................44
10.1 Covenant to pay.....................................................................44
10.2 Guarantors as principal debtors; indemnity..........................................44
10.3 No security taken by Guarantors.....................................................44
10.4 Interest............................................................................44
10.5 Continuing security and other matters...............................................45
10.6 New accounts........................................................................45
10.7 Liability unconditional.............................................................45
10.8 Collateral Instruments..............................................................46
10.9 Waiver of Guarantors' rights........................................................46
10.10 Suspense accounts...................................................................47
10.11 Settlements conditional.............................................................47
10.12 Guarantors to deliver up certain property...........................................47
10.13 Retention of this guarantee.........................................................47
10.14 Changes in constitution or reorganisations of Secured Parties.......................47
10.15 Other Guarantors....................................................................48
10.16 Acceding Guarantors.................................................................48
11 Representations and warranties...............................................................50
11.1 Repeated representations and warranties.............................................50
11.2 Further representations and warranties..............................................52
11.3 First Advance representations and warranties........................................55
11.4 Repetition..........................................................................56
12 Undertakings.................................................................................58
12.1 Positive covenants..................................................................58
12.2 Negative covenants..................................................................65
13 Financial covenants..........................................................................70
13.1 Financial covenants.................................................................70
13.2 Auditors certificate................................................................71
14 Events of Default............................................................................73
14.1 Events of default...................................................................73
14.2 Acceleration........................................................................79
14.3 Demand basis........................................................................80
15 Indemnities..................................................................................81
15.1 Miscellaneous indemnities...........................................................81
15.2 Currency of account: currency indemnity.............................................81
15.3 Environmental indemnity.............................................................82
15.4 ESGB reserve requirements...........................................................82
16 Unlawfulness and increased costs; mitigation.................................................83
16.1 Unlawfulness........................................................................83
16.2 Increased costs.....................................................................83
16.3 Exceptions..........................................................................84
16.4 Mitigation..........................................................................85
17 Set-off and pro rata payments................................................................86
17.1 Set-off.............................................................................86
17.2 Pro rata payments...................................................................86
17.3 No release..........................................................................87
17.4 No charge...........................................................................87
18 Assignment substitution and lending offices..................................................88
18.1 Benefit and burden..................................................................88
18.2 No assignment by Obligors...........................................................88
18.3 Assignment by Banks.................................................................88
18.4 Transfer............................................................................88
18.5 Reliance on Transfer Certificate....................................................89
18.6 Authorisation of Agent..............................................................89
18.7 Construction of certain references..................................................89
18.8 Lending offices.....................................................................90
18.9 Disclosure of information...........................................................90
19 Joint Arrangers, Agent, Security Agent, the Security Agent Guarantor Overdraft Bank and
Reference Banks..............................................................................91
19.1 Appointment of Agent................................................................91
19.2 Agent's actions.....................................................................91
19.3 Agent's duties......................................................................91
19.4 Agent's rights......................................................................92
19.5 No liability of Joint Arrangers, Security Agent, Security Agent Guarantor and Agent.93
19.6 Non-reliance on Joint Arrangers, Security Agent, Security Agent Guarantor, Overdraft
Bank or Agent.......................................................................94
19.7 No Responsibility on Joint Arrangers, Security Agent, the Security Agent Guarantor,
the Overdraft Bank or Agent for any Obligor's performance...........................94
19.8 Reliance on documents and professional advice.......................................95
19.9 Other dealings......................................................................95
19.10 Rights of Agent, Overdraft Bank and Security Agent Guarantor as Bank: no partnership95
19.11 Amendments: waivers.................................................................95
19.12 Reimbursement and indemnity by Banks................................................96
19.13 Retirement of Agent.................................................................97
19.14 Retirement of Overdraft Bank........................................................98
19.15 Change of Reference Banks...........................................................98
19.16 Prompt distribution of proceeds.....................................................98
20 Notices and other matters....................................................................99
20.1 Notices.............................................................................99
20.2 Notices through the Agent..........................................................101
20.3 No implied waivers remedies cumulative.............................................101
20.4 English translations...............................................................101
20.5 Counterparts.......................................................................101
21 Governing law and Jurisdiction..............................................................102
21.1 Law................................................................................102
21.2 Submission to jurisdiction.........................................................102
21.3 Agent for service of process.......................................................102
SCHEDULE
1 Part A - The Banks and their Commitments....................................................103
Part B -Charging Subsidiaries and Original Guarantors.......................................104
2 Form of Drawdown Notice.....................................................................106
3 Documents and evidence required as conditions precedent to first Advance....................107
4 Calculation of Additional Cost..............................................................110
5 Form of Transfer Certificate................................................................112
6 Part A - Compliance Certificate to be delivered by an Authorised Officer of the Borrower....116
Part B - Compliance Certificate to be delivered by the auditors of the Group................118
7 Registrations...............................................................................120
8 Principal Agreements........................................................................121
9 Part A - Guarantor's Deed of Accession......................................................122
Part B - Documents and Evidence to be delivered by an Acceding Guarantor....................123
10 Form of Quarterly Management Accounts/Monthly Information...................................125
11 Management Base Case....................................................................... 136
74
THIS AGREEMENT is dated 10th March, 1999 and made BETWEEN:
(1) N.V. TELEKABEL as Borrower;
(2) THE ENTITIES listed in part B of schedule 1 as Original Guarantors;
(3) BANK OF AMERICA INTERNATIONAL LIMITED, CITIBANK, N.A., DEUTSCHE BANK
AG LONDON, MEESPIERSON N.V. AND PARIBAS as Joint Arrangers;
(4) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set
out in part A of schedule 1;
(5) MEESPIERSON N.V. as Overdraft Bank;
(6) MEESPIERSON N.V. as Agent;
(7) STICHTING SECURITY AGENT N.V. TELEKABEL as Security Agent; and
(8) MEESPIERSON N.V. as Security Agent Guarantor.
IT IS AGREED as follows:
1 PURPOSE AND DEFINITIONS
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1.1 PURPOSE
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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 Borrower a revolving credit facility (converting to a
term loan) of up to euro335,000,000 and the Overdraft Bank agrees to
make available to the Borrower an overdraft facility of up to
euro5,000,000 to be used (in each case) for the purposes of (i)
financing capital expenditure and working capital in relation to the
Project, (ii) repaying inter-company loans made by the Shareholder to
the Borrower in order to refinance the NUON Facility up to a maximum
of NLG 500,000,000, (iii) repaying inter-company loans made by the
Shareholder to the Borrower prior to the date of this Agreement
representing the on-lending of the proceeds of subscriptions in cash
for equity share capital in the Shareholder and/or inter-company loans
made to the Shareholder by UTH and/or NUON and/or UPC, to the extent
that the aggregate of Subordinated Shareholder Loans and equity share
capital in the Borrower subscribed for in cash and/or assets exceeds
on the date of the first Advance NLG 412,000,000; (iv) financing
expenses incurred in connection with the Facilities and (v) repaying
Additional Subordinated Shareholder Loans to the extent permitted by
clause 12.2(k).
1
1.2 DEFINITIONS
-----------
In this Agreement, unless the context otherwise requires:
"1999 BUDGET" means the budget for the Group for the period commencing
on 1st January, 1999 and ending on 31st December, 1999;
"ACCEDING GUARANTORS" means those entities which have become a party
to this Agreement as Guarantors pursuant to clause 10.16;
"ACCOUNT PLEDGE" means the pledge of claims over the Charged Accounts
and the amounts standing to the credit from time to time thereof
entered into or to be entered into by the Borrower and certain
Original Guarantors in respect of the Charged Accounts in favour of
the Secured Parties in the agreed form;
"ADDITIONAL COST" means in relation to any period a percentage
calculated for such period at an annual rate determined in accordance
with schedule 4;
"ADDITIONAL SUBORDINATED SHAREHOLDER LOAN" means Borrowed Money of up
to euro18,000,000 made available by a Subordinated Creditor to the
Borrower after the date of this Agreement pursuant to the UPC Funding
Undertaking;
"ADVANCE" means a Revolving Advance or a Term Advance (as applicable);
"AGENT" means MeesPierson N.V. of Xxxxxxxxxx 00, 0000 XX, Xxxxxxxxx,
Xxx Xxxxxxxxxxx or such other person as may be appointed agent for the
Banks pursuant to clause 19.13;
"AGGREGATE TOTAL COMMITMENTS" means the aggregate of the Total
Commitments and the Overdraft Facility Amount;
"ANNUAL BUDGET" means a budget in respect of the 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 the Borrower 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 acting on the instructions
of the Majority Banks;
"ANNUALISED CONSOLIDATED EBITDA" means twice the aggregate of the
Consolidated EBITDA in respect of the relevant Six Month Period;
"ANNUALISED CONSOLIDATED EBITDA BEFORE MANAGEMENT FEES" means twice
the aggregate of the Consolidated EBITDA before management fees in
respect of the relevant Six Month Period;
"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
2
interest is owned beneficially and/or legally directly or indirectly
by such person. For the purposes of this definition the term "control"
means possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person whether
through the ownership of interests or voting securities, by contract
or otherwise;
"AUTHORISED OFFICER" means that officer or officers of the Borrower
authorised to sign Compliance Certificates, Drawdown Notices and other
notices, requests, or confirmations referred to in this Agreement or
relating to the Facilities;
"BANKING DAY" means:
(a) a day (other than a Saturday or Sunday) on which banks are open
for business in London, Rotterdam and Paris; and
(b) in relation to rate fixing a day on which Trans-European
Automated Real-time Gross Settlement Express Transfer system
(TARGET) is operating;
"BANKS" means the banks and financial institutions listed in part A of
schedule 1 and includes their successors in title and Transferees;
"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), (v) payments for assets acquired or services
supplied deferred for a period of over 90 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, (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 Charging Group for the Indebtedness
of another member of the Charging 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;
"BORROWER" means N.V. TeleKabel a limited liability company
incorporated under the laws of The Netherlands with its registered
office in Amsterdam and its business office at Xxxxxxxxxxx 00, Xxxx XXX
0000XX, Xxx Xxxxxxxxxxx;
"CABLE SYSTEMS" means the telecommunications and/or television systems
constructed or to be constructed in relation to the Project and
includes any part of such system and all modifications, substitutions,
replacements, renewals and extensions made to such systems;
3
"CHARGED ACCOUNTS" means the accounts of the Borrower and certain
Original Guarantors into which the proceeds of the Earnings are from
time to time placed;
"CHARGING GROUP" means the Borrower and the Charging Subsidiaries of
the Borrower from time to time;
"CHARGING SUBSIDIARIES" means the Original Guarantors together with
such Acceding Guarantors as have given an unlimited Guarantee and
entered into the relevant Security Documents referred to in part B of
schedule 9;
"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
amount set opposite its name in part A of schedule 1 and/or, in the
case of a Transferee, the amount novated as specified in the relevant
Transfer Certificate, as reduced, in each case, by any relevant term of
this Agreement and so that, if at such time the Total Commitments have
been reduced to zero, references to a Bank's Commitment shall be
construed as a reference to that Bank's Commitment immediately prior to
such reduction to zero;
"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 13 (if not in
compliance indicating the extent of the breach) issued by the
Authorised Officer of the Borrower 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 13 (if not in compliance indicating the
extent of the breach) issued by the auditors of the Borrower in
relation to annual financial statements;
"CONSOLIDATED EBITDA BEFORE MANAGEMENT FEES" means, in respect of each
Quarterly Period or financial year, the Net Income of the Group (plus
any depreciation, amortisation, other non-cash charges (such as
deferred Taxes), Management Fees accrued (whether paid or not) in
respect of such Quarterly Period or financial year) and interest
expense and other charges in respect of Borrowed Money) for such
Quarterly Period or financial year adjusted as follows:
(a) minus extraordinary income of the Group for such Quarterly Period
or financial year;
(b) plus any extraordinary expenses of the Group for such Quarterly
Period or financial year; and
4
(c) minus any interest income of the Group for such Quarterly Period
or financial year;
all as determined in accordance with GAAP used in the preparation of,
and as shown in, the relevant annual audited financial statements or
Quarterly Management Accounts prepared and delivered to the Agent
pursuant to clause 12.1(f)(i) and clause 12.1(g) (as the case may be);
"CONSOLIDATED EBITDA" means Consolidated EBITDA before Management Fees
minus any Management Fees (including accrued Management Fees)
constituting Permitted Payments paid during the relevant Quarterly
Period or financial year all as determined in accordance with GAAP used
in the preparation of, and as shown in, the relevant annual audited
financial statements or Quarterly Management Accounts prepared and
delivered to the Agent pursuant to clause 12.1(f)(i) and clause 12.1(g)
(as the case may be);
"CONTRIBUTION" means, in relation to a Bank, the principal amount of
the Loan owing to such Bank at any relevant time;
"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 and/or the fulfilment of any other condition (in
each case as specified in clause 14.1), constitute an Event of Default;
"DERIVATIVES CONTRACT" means a contract, agreement or transaction
which is:
(i) a rate swap, basis swap, commodity swap, forward rate
transaction, commodity option, 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;
"DRAWDOWN DATE" means the date, being a Banking Day on which an
Advance is or is to be drawn down;
"DRAWDOWN NOTICE" means a notice in the form or substantially in the
form of schedule 2;
"EARNINGS" means all monies whatsoever from time to time due and
payable to any member of the Charging Group arising out of the use or
operation of the Cable Systems including (without limitation) all
revenues and other payments due from Subscribers and damages for breach
of any Subscriber's Agreement;
"EMU" means Economic and Monetary Union as contemplated in the Treaty;
5
"EMU LEGISLATION" means legislative measures of the European Council
for the introduction of, changeover to, or operation of, a single or
unified European currency;
"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 trading by
operation of law and not by way of contract;
"ENVIRONMENTAL CLAIM" means any claim, notice 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;
"ENVIRONMENTAL LICENCE" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental
Law;
"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 a particular period:
(a) the percentage rate per annum which is sponsored by the
European Banking Federation and which appears on Telerate page
248 (or such other page as may replace such page 248 on such
system or on any other system of the information vendor for
the time being designated by the Federation Bancaire de
l'Union Europeene to be the official collector, calculator and
distributor of the Euro Interbank Offered Rate; or
6
(b) if no such rate is to appear on the Telerate Screen, the
arithmetic mean (rounded upward, if necessary, to the nearest
five decimal places) of the annual rates, as supplied to the
Agent at its request, quoted by the Reference Banks to leading
banks in the Interbank Market of any Participating Member
State(s),
at or about 11.00 a.m. Central European Time on the second Banking Day
before the first day of such period for the offering of deposits in
euros in an amount approximately equal to the amount in relation to
which EURIBOR is to be determined for a period equivalent to such
period.
"EURO" and "EUROS" 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;
"EURO UNIT" means a currency unit of the euro as defined in EMU
Legislation;
"EVENT OF DEFAULT" means any of the events or circumstances described
in clause 14.1;
"EXCESS CASH FLOW" means the aggregate Consolidated EBITDA of the
Group calculated for the most recently ended financial year (beginning
with the financial year ending on 31st December 2002), as shown in the
Quarterly Management Accounts in respect of the Quarterly Period
ending on 31st December in any relevant year, less (i) any interest
and other charges in respect of Borrowed Money of the Group paid
during such financial year, (ii) repayments and/or prepayments of any
Borrowed Money of the Group paid during such financial year, (iii)
capital expenditure of the Group, whether or not incurred, to the
extent that the same is included in the Annual Budget for such period
as delivered to the Agent under this Agreement and (iv) the amount
required for the creation of a working capital reserve to the extent
that the aggregate of all amounts so allocated do not exceed
euro8,000,000 (or its equivalent) or euro2,000,000 (or its equivalent)
in any financial year;
"FACILITIES" means the Revolving Credit Facility and the Overdraft
Facility;
"FINANCE DOCUMENTS" means this Agreement, the Security Documents and
the Interest Rate Hedging Arrangements;
"FINANCE PARTIES" means the Agent, the Joint Arrangers, the Security
Agent, the Security Agent Guarantor, the Overdraft Bank and the Banks;
"GAAP" means generally accepted accounting principles and practices in
the Netherlands;
"GROUP" means the Borrower and all its Subsidiaries from time to time;
7
"GUARANTEE" means the guarantee of the Guarantors contained in clause
10 and includes each separate or independent stipulation or agreement
by the Guarantors contained in clause 10;
"GUARANTEED LIABILITIES" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantors in clause 10.2;
"GUARANTORS" means (i) the Original Guarantors and (ii) the Acceding
Guarantors;
"HEADENDS" means the part of the Cable System that receives the
programme signals, whether by satellite, broadcast or tape and
processes and transmits them to Subscribers of the network;
"HOLDING COMPANY" in relation to a person, means an entity of which
that person is a Subsidiary;
"IMMATERIAL SUBSIDIARIES" means any Subsidiary of the Borrower which
does not trade and has no interest, legal or beneficial, in the
Registrations, the Cable Systems, the Earnings, the Principal
Agreements, the share capital of any other member of the Group which
is not an Immaterial Subsidiary;
"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 in the form
approved by the Borrower and the Joint Arrangers to be distributed by
the Joint Arrangers at the request of the Borrower in connection with
this Agreement;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trademark, service
xxxx, registered design, trade name or copyright required to carry on
the business of any member of the Group;
"INTEREST PAYMENT DATE" means the last day of an Interest Period;
"INTEREST PERIOD" means, in relation to any Advance or the Loan, each
period for the calculation of interest in respect of such Advance or
the Loan 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 paragraph (u) of schedule 3;
8
"INTEREST RATE HEDGING BANKS" means Banks who are party to the
Interest Rate Hedging Arrangements;
"JOINT ARRANGERS" means Bank of America International Limited of New
Broad Street House, 35 New Broad Street, London EC2M 1SH, Citibank,
N.A. of XX Xxx 000, Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxx XX0 0XX,
Deutsche Bank AG London of 0 Xxxxxxxxxxx, Xxxxxx XX0X 0XX, XxxxXxxxxxx
N.V. of Xxxxxxxxxx 00, 0000 XX, Xxxxxxxxx, Xxx Xxxxxxxxxxx and Paribas
of 0, Xxx x'Xxxxx, 00000 Xxxxx, Xxxxxx;
"LOAN" means the aggregate principal amount owing to the Banks under
this Agreement in respect of the Revolving Credit Facility at any
relevant time;
"MAJORITY BANKS" means at any relevant time Banks the aggregate of
whose Commitments exceeds 662/3 per cent of the Aggregate Total
Commitments provided that, in the case of that Bank which is the
Overdraft Bank, for the purposes of calculating Majority Banks, such
Bank's Commitment shall include the Overdraft Facility Amount;
"MANAGEMENT BASE CASE" means the management base case financial and
operational projections for the Group produced by the Borrower in the
form of schedule 11;
"MANAGEMENT FEES" means any management, consultancy or similar fees
payable by any member of the 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 the Group (taken as a whole) or the Borrower to perform all
or any of their or its respective material obligations under or
otherwise comply with the terms of this Agreement or any Security
Document;
"MATERIAL SUBSIDIARIES" means all the Subsidiaries of the Borrower
other than the Immaterial Subsidiaries;
"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 Group to be
delivered (or which may be delivered) to the Agent pursuant to clause
12.1(h) substantially in the form set out in schedule 10 (save that a
9
balance sheet shall not be required) or containing information of the
same type as is required by such form;
"MORTGAGE DEED" means a mortgage over immoveables entered into or to be
entered into by the relevant member of the Charging Group in respect of
its own immoveables in favour of the Secured Parties in the agreed
form;
"MOVEABLES PLEDGES" means the pledges over moveables entered into or to
be entered into by the Borrower and each relevant Charging Subsidiary
in respect of its own moveables in favour of the Secured Parties in the
agreed form;
"NECESSARY AUTHORISATIONS" means all approvals, authorisations and
licences (including the Registrations) from, all rights granted by and
all filings, registrations and agreements with any person including,
without limitation, any government or other regulatory authority, from
time to time, necessary in order to enable each member of the 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 Group taken as a whole in respect of
Derivatives Contracts determined by reference to the amounts (as
determined by the Agent), which would be payable or receivable by the
Group if all Derivatives Contracts to which any member of the Group 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 Group of the payment flows under those
Derivatives Contracts remaining at the time of termination;
"NET INCOME" means, for any period, the net profit after Management
Fees and Taxes of the Group arising out of the use or operation of
Cable Systems or other businesses or activities permitted to be carried
out under this Agreement for such period as determined in accordance
with GAAP used in the preparation of and as shown in the financial
statements or Quarterly Management Accounts in respect of such period
prepared and delivered to the Agent pursuant to clause 12.1(f) or
12.1(g);
"NLG" means the lawful currency for the time being of The Netherlands;
"NUON" means N.V. NUON Energie-Onderneming voor Gelderland, Friesland
en Flevoland, a Netherlands public limited liability company with its
registered office at Arnhem and its business office at Xxxxxxxxxxxx 00,
0000XX Xxxxxx, Xxx Xxxxxxxxxxx;
"NUON FACILITY" means the inter-company credit facilities made
available to the Shareholder by NUON of up to NLG 690,000,000 pursuant
to an agreement between the Shareholder and NUON dated 31st August,
1998;
"OBLIGOR" means the Borrower and each Guarantor;
10
"ORIGINAL GUARANTORS" means those Material Subsidiaries of the
Borrower whose names, country of incorporation and principal place of
business are set out in part B of schedule 1;
"OVERDRAFT BANK" means MeesPierson N.V. of Xxxxxxxxxx 00, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx;
"OVERDRAFT FACILITY" means an overdraft facility of up to
euro5,000,000 made available to the Borrower by the Overdraft Bank
pursuant to clause 2.1(b);
"OVERDRAFT FACILITY AMOUNT" means at any time euro5,000,000 as reduced
by any relevant provision of this Agreement;
"PARTICIPATING MEMBER STATE" means a member state of the European
Union that adopted a 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 of the share capital of, or assets and
liabilities of, a member of the Group by a member of the Charging
Group as part of the solvent reorganisation of the Group;
"PERMITTED BORROWINGS" means, without duplication:
(a) any Borrowed Money arising hereunder or under the Security
Documents;
(b) any Borrowed Money approved in writing by the Agent (acting on
the instructions of the Majority Banks);
(c) any Subordinated Shareholder Loan;
(d) any Borrowed Money owing by any member of the Group arising under
deferred payment agreements incurred in the ordinary course of
business provided that such Borrowed Money is deferred for no
longer than 180 days and is in an aggregate amount of not more
than euro20,000,000 (or its equivalent) outstanding at any time;
(e) any deposits or prepayments constituting Borrowed Money received
by any member of the Group from a customer or subscriber for its
services;
(f) any Borrowed Money owing by any member of the Charging Group to
another member of the Charging Group;
(g) any Borrowed Money owing by any member of the Group being
Management Fees in respect of which payment has been deferred;
11
(h) any Borrowed Money being Permitted Payments in respect of which
payment has been deferred;
(i) any finance lease arrangements entered into with a supplier of
telecommunications equipment to the Group in an aggregate amount
of not more than euro5,000,000 (or its equivalent) or subject to
the prior written consent of the Majority Banks in excess of
euro5,000,000 (or its equivalent) in aggregate; and
(j) any Borrowed Money in addition to the Borrowed Money falling
within paragraphs (a) to (i) above and not exceeding at any time
more than euro5,000,000 in aggregate (or its equivalent);
"PERMITTED ENCUMBRANCES" means:
(a) any Encumbrance arising hereunder or under any Security Document;
until the date of the first Advance hereunder, any Encumbrance
over the shares of the Borrower or any of its Subsidiaries
securing the NUON Facility;
(b) any liens arising in the ordinary course of business by way of
contract which secure Borrowed Money falling within part (d) of
the definition of "PERMITTED BORROWINGS" above or which secure
any Indebtedness under any agreement for the supply of goods or
services in respect of which payment is not deferred for more
than 90 days;
(c) any Encumbrance approved in writing by the Agent (acting on the
instructions of the Majority Banks); and
(d) any Encumbrance not falling within paragraphs (a) to (d) above
and securing Indebtedness in aggregate not exceeding 5,000,000
(or its equivalent);
"PERMITTED PAYMENTS" means any payments or transfers of assets:
(a) for the purposes referred to in clause 1.1 (ii) and (iii);
(b) by way of the repayment on the date of the first Advance of
inter-company loans made by the Shareholder to the Borrower up to
NLG130,000,000 in order to repay the NUON Facility;
(c) to any Relevant Person in relation to transactions carried out on
bona fide arm's length commercial terms in the ordinary course of
business;
(d) at any time on or after delivery to the Agent of the Compliance
Certificate in respect of the Quarterly Period ending 31st
December, 2000, consisting of repayment of the principal of
Additional Subordinated Shareholder Loans provided that (i) in
respect of each of the two most recently ended consecutive
12
Quarterly Periods the ratio of Senior Debt to Annualised
Consolidated EBITDA (calculated on the last day of each such
Quarterly Period by reference to the Six Month Period ending on
such date), each as demonstrated in the Compliance Certificate
for such Quarterly Period was 7:1 or less and (ii) no Default has
occurred and is continuing or would occur or be reasonably likely
to occur as a result of such payment;
(e) consisting of Management Fees (other than accrued Management
Fees) not exceeding euro3,400,000 in any financial year of the
Group in respect of which Management Fees are not payable under
paragraphs (f) or (g) below provided that no Default has occurred
and is continuing or would occur or be reasonably likely to occur
as a result of such payment;
(f) consisting of Management Fees (including Management Fees accrued
in respect of that or any previous financial year) not exceeding
euro3,400,000 in any financial year of the Group in respect of
which Management Fees are not paid under paragraph (e) above or
payable under paragraph (g) below as adjusted to reflect the rate
of Euro inflation in such financial year in accordance with the
Consumer Price Index (IFS CPI) reported in the publication of the
International Monetary Fund entitled "International Financial
Statistics" provided that (i) in respect of the two most recently
ended consecutive Quarterly Periods the ratio of Senior Debt to
Annualised Consolidated EBITDA (calculated on the last day of
each such Quarterly Period by reference to the Six Month Period
ending on such date), each as demonstrated in the Compliance
Certificate for such Quarterly Period was 5:1 or less, but not
less than 4:1 and (ii) no Default has occurred and is continuing
or would occur or be reasonably likely to occur as a result of
such payment; and
(g) consisting of dividends or other distributions or the payment of
interest on or the repayment of any Subordinated Shareholder Loan
or the payment of Management Fees (including Management Fees
accrued in respect of that or any previous financial year) to any
Relevant Person after the end of the Revolving Period provided
that: (i) in respect of each of the two most recently ended
Quarterly Periods, the ratio of Senior Debt to Annualised
Consolidated EBITDA (calculated on the last day of each such
Quarterly Period by reference to the Six Month Period ending on
such date), each as demonstrated in the Compliance Certificate
for such Quarterly Period is less than 4:1 and (ii) no Default
has occurred and is continuing or would occur or be reasonably
likely to occur as a result of such distribution or payment;
"PLEDGE OF INTERCOMPANY CLAIMS" means the disclosed pledge of any
present and future claims the Borrower may have, from time to time,
against any of its Subsidiaries, entered into or to be entered into by
the Borrower and the Guarantors in favour of the Secured Parties;
13
"PLEDGE OF RIGHTS AGAINST CASEMA" means the undisclosed pledge of any
present and future claims the Borrower may have, from time to time,
against Casema in relation to the swap of shares of certain companies
between Casema and the Borrower, entered into or to be entered into by
the Borrower in favour of the Secured Parties;
"PLEDGE OF RIGHTS AGAINST MUNICIPALITIES" means the undisclosed pledge
of any present and future rights and claims the Borrower and/or any of
the Guarantors may have, from time to time, against any relevant
municipality in relation to the Cable Systems, entered into or to be
entered into by the Borrower and the Guarantors in favour of the
Secured Parties;
"PLEDGE OVER PRINCIPAL AGREEMENTS" means the pledges over the Principal
Agreements and/or the UPC Funding Undertaking entered into or to be
entered into by the Borrower or the relevant Charging Subsidiary in
favour of the Secured Parties in the agreed form;
"PRINCIPAL AGREEMENTS" means the documents and agreements listed in
schedule 8 and/or all back-to-back or pass through agreements referred
to in clause 3.6(b)(i) 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
14.1(p);
"PRO-FORMA SENIOR DEBT SERVICE" means the aggregate of (i) the total
forecast amount of interest (calculated by reference to the rate of
interest in effect in relation to the Senior Debt on the date on which
the calculation falls to be made) and any other charges payable in
respect of the Senior Debt payable in respect of the twelve months
immediately following the date on which the relevant calculation under
this Agreement falls to be made and (ii) the principal amount of any
scheduled repayment of Senior Debt due to be made during such period;
"PROJECT" means the carrying on of the business in those locations
where the necessary Registrations have been effected or applied for
where any member of the Group is permitted to carry on the business
pending Registration;
"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 Borrower 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 9.8 has been given), or (ii) by virtue of the fact that no such
deduction or withholding is imposed in the jurisdiction to which the
Borrower is subject;
"QUARTER DAY" means 31st March, 30th June, 30th September and 31st
December in any year;
14
"QUARTERLY MANAGEMENT ACCOUNTS" means the quarterly management
accounts of the Group to be delivered (or which may be delivered) to
the Agent pursuant to clause 12.1(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;
"RECEIVABLES PLEDGE" means the pledge over receivables entered into or
to be entered into by the Borrower in favour of the Secured Parties in
the agreed form;
"REFERENCE BANKS" means the principal London offices or, in the case
of Paribas only, Paris office of Bank of America N.T. & S.A.,
Citibank, N.A., Deutsche Bank AG London, MeesPierson N.V. and Paribas
and/or any other Bank appointed as such pursuant to clause 19.15;
"REGISTRATIONS" means the registrations by each relevant member of the
Charging Group with the Onafhankelijke Post en Telecommunicatie
Autoriteit "OPTA" listed in schedule 7 or otherwise required under
Telecommunications and Cable Laws in The Netherlands to carry on the
business from time to time or, as the case may be, replaced from time
to time in accordance with clause 12.1(u);
"RELEVANT JURISDICTION" means each jurisdiction in which a member of
the Group is incorporated or formed or in which such member of the
Group has its principal place of business or owns any material assets;
"RELEVANT PERSON" means UPC, the Shareholder and any company (not
being a member of the Charging Group) which is a Subsidiary of, or an
Associated Company of, UPC (other than Associated Companies of UPC
which are its Associated Companies by virtue of controlling UPC or
owning beneficially and/or legally directly or indirectly 10 per cent.
or more of the equity interests in UPC);
"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 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 Subordinated Shareholder Loan, in each case to a
Relevant Person;
15
"REVOLVING ADVANCE" means each borrowing by way of an advance under
the Revolving Credit Facility during the Revolving Period or, as the
context requires, the principal amount of that borrowing outstanding
at any relevant time;
"REVOLVING CREDIT FACILITY" means the revolving credit facility
(converting to a term loan) of up to euro335,000,000 granted to the
Borrower by the Banks pursuant to clause 2.1(a);
"REVOLVING PERIOD" means the period from (and including) the date
hereof to (and including) 31 December 2001;
"SECURED PARTIES" means the Finance Parties and the Interest Rate
Hedging Banks;
"SECURITY AGENT" means Stichting Security Agent N.V. TeleKabel of
Xxxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx;
"SECURITY AGENT GUARANTOR" means MeesPierson N.V. of Xxxxxxxxxx 00,
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx; or such other person as may be
appointed security agent guarantor 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 Subordination Deed, the Account Pledge,
the Receivables Pledge, the Pledge over Principal Agreements, the
Moveables Pledges, the Share Securities, the Pledge of Rights against
Municipalities, the Pledge of Intercompany Claims, the Pledge of
Rights against Casema, the UPC Funding Undertaking, any irrevocable
power of attorney referred to in schedule 3 or part B of schedule 9
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 this Agreement;
"SECURITY PROVIDERS" means those persons (other than the Secured
Parties and the Obligors) that have entered into any of the Security
Documents from time to time;
"SECURITY PROVIDER'S DEED OF ACCESSION" has the meaning given to it in
the Security Deed;
"SENIOR DEBT CASH INTEREST CHARGES" means, in relation to any period,
the total amount of all interest, fees and commissions accruing in
respect of the Senior Debt during such period (having taken into
account the effect of any Interest Rate Hedging Arrangements);
16
"SENIOR DEBT" means the aggregate principal amount outstanding under
the Facilities;
"SHAREHOLDER" means N.V. TeleKabel Beheer, a limited liability company
incorporated under the laws of The Netherlands with its registered
office in Arnhem and its business office in Xxxxxxxxxxx 00, 0000 XX
Xxxx, Xxx Xxxxxxxxxxx;
"SHARE SECURITIES" means the TeleKabel Share Securities and the
Subsidiary Share Securities and such other pledges/charges over shares
in any of the Material Subsidiaries as may be executed in favour of
the Secured Parties from time to time as security for amounts owing to
the Secured Parties (or any of them) in respect of any Indebtedness of
the Obligors under this Agreement;
"SIX MONTH PERIOD" means each period of two consecutive Quarterly
Periods ending on a Quarter Day;
"SUBORDINATED CREDITOR" means the Shareholder and any other Relevant
Person who has, at any relevant time, entered into a Subordination
Deed and the Security Deed or a Security Provider's Deed of Accession;
"SUBORDINATION DEED" means the pledge of Subordinated Shareholder
Loans and Restricted Payments (other than Permitted Payments) and deed
of subordination to be entered into (i) by the Shareholder in favour
of the Secured Parties in the agreed form, or (ii) by any other person
in favour of the Secured Parties pursuant to the terms of this
Agreement substantially in the form of the pledge and deed of
subordination referred to in (i) above 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 relating to
the pledging and subordination of receivables in the jurisdiction in
which the relevant loan is payable;
"SUBORDINATED SHAREHOLDER LOAN" means any Borrowed Money of any member
of the Group owed to a Subordinated Creditor;
"SUBSCRIBER" means a person who has entered into a Subscriber's
Agreement;
"SUBSCRIBER'S AGREEMENT" means an agreement with a member of the Group
to be provided with services through the operation of the Cable
Systems and/or assets in relation to the provision of such services by
a member of the Group;
"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);
"SUBSIDIARY SHARE SECURITIES" means the share pledges given, or to be
given, by the Borrower or the relevant Charging Subsidiary to the
17
Secured Parties in respect of their respective shareholdings in the
Original Guarantors, in the agreed form;
"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 Group
and/or the business carried on by any member of the Group in any
Relevant Jurisdiction;
"TELEKABEL SHARE SECURITY" means the share pledge given, or to be
given, to the Secured Parties by the Shareholder in respect of its
shareholding in the Borrower in the agreed form;
"TERM" means, in relation to a Revolving Advance, the period for which
such Revolving Advance is, or is to be, made, as specified in the
Drawdown Notice for such Revolving Advance, or as otherwise determined
in accordance with the provisions hereof;
"TERM ADVANCE" means, on the last day of the Revolving Period and
thereafter, each advance deemed to be made pursuant to clause 4.8 and
any advance resulting from the division and/or consolidation of any
Term Advance in accordance with clause 4.8;
"TERM DATE" means, in relation to a Revolving Advance, the last day of
the Term of such Revolving Advance;
"TERM PERIOD" means from (and including) 1 January 2002 to (and
including) 31 December 2007;
"TERM REPAYMENT DATE" means each of the dates referred to in clause
7.1;
"TOTAL COMMITMENTS" means at any relevant time the total of the
Commitments of all the Banks at such time;
"TRANSACTION DOCUMENTS" means this Agreement and the Security
Documents;
"TRANSFEREE" has the meaning given to it in clause 18.4;
"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 Xxxxxxxx Xxx 0000 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;
18
"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 Frederik
Xxxxxxxxxxxx 000, (0000XX) Xxxxxxxxx, Xxx Xxxxxxxxxxx;
"UPC FUNDING UNDERTAKING" means the undertaking entered or to be
entered into in the agreed form by UPC in favour of the Borrower and
the Security Agent pursuant to which UPC agrees to procure the
injection of additional funds of up to euro18,000,000 into the
Borrower to meet the Group's capital needs during 1999 and 2000;
"UTH" means United TeleKabel Holding N.V., a limited liability company
incorporated under the laws of The Netherlands with its registered
office in Almere and its business office at Xxxxxxxx 00 Xxxxxxxxx
(0000XX), Xxx Xxxxxxxxxxx;
"UTILISATION" means each borrowing or other utilisation under the
Overdraft Facility by the Borrower;
"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, 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
19
(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 16.2 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;
(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 Borrower 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 "BUSINESS" means any business (i) that consists of
the upgrade, construction, 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)
20
that supports, is incidental to or is related to any such
business, and references to "ordinary course of business" or
"ordinary course of trading" shall be similarly construed; and
(l) references to any enactment shall be deemed to include references
to such enactment as re-enacted, amended or extended.
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
Borrower and the Banks), once informed by the Agent that such opinion,
consent, request or instructions have been given, the Borrower 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 and/or a material adverse effect, as the case may be,
the Agent shall act in accordance with the instructions of the Majority
Banks in making such determination.
21
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 11, for the purposes
set out in clause 1.1:
(a) the Banks agree to make available to the Borrower a revolving
credit facility (converting to a term loan) in the principal sum
of up to euro335,000,000; and
(b) the Overdraft Bank agrees to make available to the Borrower an
overdraft facility in the principal sum of up to euro5,000,000.
The obligation of each Bank under this Agreement shall be to
contribute that proportion of each Advance which, as at the Drawdown
Date of such Advance, its Commitment bears to the Total Commitments
and, in the case of the Overdraft Facility, to assume its obligations
under clause 6.
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
other Bank, the Joint Arrangers, the Security Agent, the Security Agent
Guarantor, the Overdraft Bank, the Agent or any Obligor of any of their
respective obligations or liabilities under this Agreement nor shall
the Agent, the Security Agent, the Security Agent Guarantor 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.
22
3 CONDITIONS
----------
3.1 DOCUMENTS AND EVIDENCE
----------------------
The obligation of each Bank to make its Commitment available under the
Revolving Credit Facility or for the Overdraft Bank to make the
Overdraft Facility 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 Advance
is to be made or, if the first drawing under the Facilities is a
Utilisation, not later than three Banking Days before the first
Utilisation, the documents and evidence specified in schedule 3 in form
and substance satisfactory to all of the Banks.
3.2 GENERAL CONDITIONS PRECEDENT
----------------------------
The obligation of each Bank to contribute to any Advance 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 11.1 and
11.2 to be repeated in accordance with clause 11.3 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 Advance.
However, in the case of a Revolving Advance which would not, if drawn,
cause the Loan to be increased (after taking into account of any
Revolving Advance due or to be made or repaid on the Drawdown Date of
such Revolving Advance):
(i) clause 3.2(a) shall apply only if the incorrectness would be
reasonably likely to have a material adverse effect on the
ability of the Borrower to perform its obligations under
this Agreement or on the financial position of the Group
taken as a whole; and
(ii) clause 3.2(b) shall not apply if the Term of the relevant
Revolving Advance is one month.
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 14.2) arising from any Event of Default which shall have
occurred and be outstanding at the time of the drawing of the relevant
Advance.
23
3.3 WAIVER OF CONDITIONS PRECEDENT
------------------------------
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and the Overdraft Bank 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
Advance or the first Utilisation (whichever is the earliest) and on the
instructions of the Majority Banks with respect to any other Advances
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 Advance.
3.4 NOTIFICATION
------------
The Agent shall notify the Banks and the Borrower promptly after
receipt by it of the documents and evidence referred to in clause 3.1
in form and substance satisfactory to it.
3.5 NUON SECURITY
-------------
The Borrower undertakes to procure that the Encumbrances referred to in
paragraph (b) of the definition of Permitted Encumbrances are
discharged before or contemporaneously with the making of the first
Advance.
3.6 CONDITIONS SUBSEQUENT
---------------------
(a) The Borrower and the Guarantors undertake that they will use
commercially reasonable endeavours to ensure that prior to the
date falling 365 days after the date of this Agreement all the
Headends then used in the operation of the Cable Systems will be
located on property owned by the Borrower or any Guarantor or on
property in respect of which it has leasehold rights
(erftachtsrechten) or in respect of which it has rights of
superficies (opstal rechten). If the Borrower and the Guarantors
do not succeed in timely fulfilling the above commitment despite
having used all reasonable endeavours and if they show to the
reasonable satisfaction of the Agent (acting on the instructions
of the Majority Banks) that their failure to succeed is due to
circumstances beyond their control (such as the failure to
receive necessary third party consents, approvals and
co-operation despite having used all commercially reasonable
efforts to obtain such consents, approvals and co-operation)
then, in such circumstances, the Banks will grant the Borrower
and the Guarantors a further period of such term as may
reasonably be requested by the Borrower and the Guarantors, with
a maximum of 365 days after the date falling 365 days after the
date of this Agreement ; and
(b) The Borrower undertakes that it shall within 30 days after the
date of this Agreement enter into with UTH (i) back-to-back or
pass through agreements in respect of the Borrower's rights under
the interconnection agreements dated 29th January 1999 made
24
between (1) UTH and (2) KPN Telecom and 11th September 1998 made
between (1) UTH and (2) Enertel N.V., and (ii) a Pledge over
Principal Agreements in respect of such back to back or pass
through agreements, in each case, on terms and conditions
satisfactory to the Agent and provide the Agent with such
documents and evidence as it may reasonably require as to its
power and authority to enter into such documents and that the
same constitute valid and legally binding obligations of the
Borrower enforceable in accordance with their terms subject to
substantially similar qualifications to those made in the legal
opinions referred to in schedule 3.
25
4 ADVANCES
--------
4.1 MAXIMUM REVOLVING ADVANCE OUTSTANDINGS
--------------------------------------
No Revolving Advance shall be made if, following the making of such
Revolving Advance, the aggregate principal amount of Senior Debt
outstanding would exceed the amount calculated by multiplying
Annualised Consolidated EBITDA (determined by reference to the most
recently ended Six Month Period in respect of which Quarterly
Management Accounts have been delivered to the Agent under this
Agreement) by 7.75.
4.2 DRAWDOWN OF REVOLVING ADVANCES
------------------------------
Subject to the terms and conditions of this Agreement, a Revolving
Advance will be made available to the Borrower following receipt by the
Agent from the Borrower of a Drawdown Notice 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 7.7.
4.3 TERM AND AMOUNT OF REVOLVING ADVANCES
-------------------------------------
(a) Revolving Advances may be made only on Banking Days falling
within the Revolving Period and may be borrowed only for a Term
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 Revolving Period,
provided that any Revolving Advances made less than one month
prior to the last day of the Revolving Period may only be
borrowed for the period up to and ending on such date;
(b) each Revolving Advance shall be of euro10,000,000 or any larger
sum which is an integral multiple thereof; and
(c) no Revolving Advance may be drawn down if, as a result, there
would be more than eight Revolving Advances then outstanding.
4.4 NOTIFICATION TO BANKS
---------------------
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 such Revolving Advance is to be made and the Term thereof.
Subject to the provisions of clauses 3 and 4.6, on the date for the
making of the relevant Revolving Advance each of the Banks shall make
available to the Agent its portion of such Revolving Advance in
accordance with clause 9.2.
26
4.5 TERMINATION OF COMMITMENTS
--------------------------
Any part of the Commitments undrawn and uncancelled at the end of the
Revolving Period shall thereupon be automatically reduced to zero.
4.6 REPAYMENT OF REVOLVING ADVANCES
-------------------------------
The Borrower agrees to repay each Revolving Advance in respect of which
the Term Date is before the last day of the Revolving Period on such
Term Date. If a Revolving Advance (the "NEW REVOLVING ADVANCE") is to
be made to the Borrower on a day on which another Revolving Advance
made to the Borrower (the "MATURING REVOLVING ADVANCE") is due to be
repaid 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 Advance, (i) the maturing Revolving
Advance shall be deemed to have been repaid on its Term Date either in
whole (if the new Revolving Advance is equal to or greater than the
maturing Revolving Advance) or in part (if the new Revolving Advance is
less than the maturing Revolving Advance) and the Borrower shall only
be obliged to repay the principal amount by which the maturing
Revolving Advance exceeds the new Revolving Advance and (ii) to the
extent that the maturing Revolving Advance is so deemed to have been
repaid, the principal amount of the new Revolving Advance to be made on
such date shall be deemed to have been credited to the account of the
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 Borrower pursuant to clause 4.4 a principal amount (if
any) equal to the amount by which the new Revolving Advance exceeds the
maturing Revolving Advance.
4.7 CONVERSION TO A TERM LOAN AND CONSOLIDATION
-------------------------------------------
On the last day of the Revolving Period the Revolving Credit Facility
shall convert to a term loan and all outstanding Revolving Advances the
Term Date of which is the last day of the Revolving Period shall be
consolidated with any other such Revolving Advances into the Loan and
be repaid in accordance with clause 7.
4.8 TERM ADVANCES
-------------
Following the consolidation referred to in clause 4.7, all Revolving
Advances shall be deemed to have been repaid and the Loan shall be
deemed to be a Term Advance for the purposes of this Agreement. The
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 Advance specify that such Term Advance shall be
divided into more than one Term Advance, or consolidated with any other
Term Advance outstanding in respect of the Loan in respect of which the
then current Interest Period ends on the same day as the current
Interest Period in respect of such Term Advance. No more than five Term
27
Advances may be outstanding under this Agreement at any time. If more
than one Term Advance is outstanding in respect of the Loan each such
Term Advance shall be either euro10,000,000 or any larger sum which
is an integral multiple thereof or the balance of the Loan.
4.9 FIRST ADVANCE
-------------
Subject to the provisions of clause 3.1, the Borrower undertakes to
comply with the terms of this clause 4 so as to ensure that a Drawdown
Notice is delivered for the first Advance in an amount in euro not less
than the amount referred to in clause 1.1(ii) (the "NUON AMOUNT").
The Borrower irrevocably authorises the Agent, and the Agent agrees, to
remit that part of the proceeds of the first Advance as is equal to the
NUON Amount to the account of NUON notified by NUON to the Agent in
satisfaction pro tanto of the Borrower's obligations to repay the
inter-company loan from the Shareholder representing the on-lending of
the proceeds of the NUON Facility and of the Shareholder's
corresponding obligations under the NUON Facility and the Agent's
obligations under clause 9.2 in respect of the first Advance shall be
to remit any balance following such application to the Borrower
forthwith. The Borrower acknowledges that the making of such payment
shall constitute the making of an Advance by the Banks to the Borrower.
The Borrower further undertakes to repay any other amounts outstanding
under the NUON Facility on the date of the first Advance and to procure
that NUON delivers to the Agent a deed of release of its pledge over
the shares in all relevant members of the Group on such date.
4.10 APPLICATION OF PROCEEDS
-----------------------
Without prejudice to the Borrower' obligations under clause 12.1(c),
none of the Banks, the Joint Arrangers, the Security Agent, the
Security Agent Guarantor or the Agent shall have any responsibility for
the application of the proceeds of any Advance by the Borrower.
28
5 INTEREST; ALTERNATIVE INTEREST RATES
------------------------------------
5.1 NORMAL INTEREST RATE
--------------------
The Borrower shall pay interest on each Advance in respect of each
Interest Period relating thereto on each Interest Payment Date (and, in
the case of an Advance having an Interest Period of more than six
months, by instalments on the dates falling at six monthly intervals
from the Drawdown Date of such Advance 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.
5.2 APPLICABLE MARGIN
-----------------
The Margin in relation to any Advance and any unpaid sum due under this
Agreement under clause 5.6 and for the purposes of clause 6.3(b) shall
(subject to the proviso below) be the rate set out in column (I) below
against the ratio of Senior Debt to Annualised Consolidated EBITDA
(determined by reference to the most recently ended Six Months Period
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 or, for the purposes of clause
6.3(b), from day to day:
(I) (II)
Rate (per cent. per annum) Ratio of Senior Debt to Annualised
-------------------------- ----------------------------------
Consolidated EBITDA
-------------------
2.00 6.5:1 or greater (or negative)
1.75 greater than or equal to 5.5:1 but less than
6.5:1
1.50 greater than or equal to 4:1 but less than
5.5:1
1.25 greater than or equal to 3:1 but less than 4:1
0.75 Less than 3:1 (but not negative)
Provided that if on the relevant date on which the Margin is to be
determined either the Borrower has failed to deliver any relevant
financial statements then due under this Agreement within the time
period for the Borrower so to deliver such financial statements then
the Margin for such Advance or such unpaid sum shall be 2.00 per cent.
per annum.
5.3 INTEREST PERIODS
----------------
The Interest Period in relation to each Revolving Advance shall be of a
duration equal to the Term of such Revolving Advance. Interest Periods
in respect of Term Advances shall be of a duration determined in
accordance with clauses 5.4 and 5.5.
29
5.4 SELECTION OF INTEREST PERIODS FOR TERM ADVANCES
-----------------------------------------------
The Borrower may by notice received by the Agent not later than 11 a.m.
on the third Banking Day before the beginning of each Interest Period
in respect of a Term Advance 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 ADVANCES
---------------------------------------------------
Every Interest Period in respect of a Term Advance shall be of the
duration specified by the Borrower pursuant to clause 5.4 but so that:
(a) the initial Interest Period in respect of each Term Advance will
commence on the last day of the Revolving Period and each
subsequent Interest Period in respect of such Term Advance will
commence forthwith upon the expiry of the previous Interest
Period in respect of such Term Advance;
(b) (i) (if there is more than one Term Advance outstanding)
Interest Periods in respect of Term Advances of an aggregate
amount at least equal to the amount of the Loan to be repaid
on any Term Repayment Date shall end on such date; and
(ii) (if there is only one Term Advance outstanding) if any
Interest Period in respect of the Loan would otherwise
overrun a Term Repayment Date then such Interest Period
shall end on such date; and
(c) if the 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.
5.6 INTEREST FOR LATE PAYMENT
-------------------------
If the 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) but excluding any sum payable under clause 6 the
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)
30
of (a) 1.5 per cent per annum, (b) the applicable Margin, (c) the
Additional Cost and (d) EURIBOR, 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 14.2(b) or a prepayment pursuant
to clauses 7.3 or 16.1, 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 Borrower and the Banks promptly of the
amount of each Term Advance, 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" in clause 1.2) any Reference Bank
is unable or otherwise fails to furnish a quotation for the purpose of
calculating EURIBOR, the interest rate for the relevant Term, 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" 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 during such
Interest Period; or
31
(ii) none or only one of the Reference Banks supplies the Agent
with a quotation for the purpose of calculating EURIBOR; 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 Advance or that
EURIBOR does not accurately reflect the cost to such Banks
of obtaining such deposits;
the Agent shall forthwith give notice (a "Determination Notice") to
the Borrower and to each of the Banks and such Advance 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), each Bank shall
certify an alternative basis (the "SUBSTITUTE BASIS") for making
available or, as the case may be, maintaining its contribution to
the Advance. 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 Borrower and shall take effect in
accordance with its terms from the date specified in the
Determination Notice until such time as none of the circumstances
specified in clause 5.9(a) continues to exist whereupon the
normal interest rate fixing provisions of this Agreement shall
apply.
32
6. THE OVERDRAFT FACILITY
----------------------
6.1 THE OVERDRAFT FACILITY
----------------------
(a) Utilisations of the Overdraft Facility on current account by the
Borrower may be made subject to the limitation that the amount
outstanding under the Overdraft Facility shall not exceed
euro5,000,000 at any time.
(b) No principal amount in respect of the Overdraft Facility may be
demanded by the Overdraft Bank unless a notice has been given
under clause 14.2, the Total Commitments have been reduced to
zero pursuant to clause 7 or the Commitment of the Overdraft Bank
has been reduced to zero pursuant to clause 7.3 but thereafter
the monies owing in respect of the Overdraft Facility are
repayable on demand.
(c) The Overdraft Bank shall be at liberty at any time to refuse to
allow any Utilisation if the result would be that the limit in
(a) above would be exceeded.
6.2 TERMS AND CONDITIONS
--------------------
The Overdraft Facility is made available on the terms and conditions
set out in this Agreement and the Overdraft Bank's normal terms and
conditions to the extent that the same are not inconsistent with this
Agreement.
6.3 UTILISATION, INTEREST AND REPAYMENT
-----------------------------------
(a) Any borrowing made available under the Overdraft Facility may be
drawn only in euros.
(b) The Borrower shall pay to the Overdraft Bank interest on
Utilisations under the Overdraft Facility at the rate being the
aggregate of (i) the applicable Margin and (ii) the Overdraft
Bank's base rate from time to time. Such interest shall accrue
from day to day on the basis of actual days elapsed and a year of
360 days, and shall be debited to the Borrower's account on the
Overdraft Bank's normal quarterly charging dates.
(c) The Borrower shall repay or discharge the Overdraft Facility in
full on the last day of the Term Period.
33
7. REPAYMENT, PREPAYMENT AND CANCELLATION
--------------------------------------
7.1 REPAYMENT
---------
The Borrower shall repay the Loan in equal instalments on each Quarter
Day (from and including 31st March 2002) in the years specified in
column (1) below so that the Loan outstanding at the end of the
Revolving Period is reduced in each such year by the percentage
specified opposite the relevant year in column (2) below:
=================================================== ==============================================
(1) (2)
Year Repayment
%
=================================================== ==============================================
2002 5
=================================================== ==============================================
2003 10
=================================================== ==============================================
2004 20
=================================================== ==============================================
2005 20
=================================================== ==============================================
2006 20
--------------------------------------------------- ==============================================
2007 25
--------------------------------------------------- ==============================================
7.2 VOLUNTARY PREPAYMENT
--------------------
The Borrower may, without premium or penalty, prepay any Advance (in
whole or in part provided that, in the case of part, the amount of such
part is a minimum of euro10,000,000 and an integral multiple thereof)
at any time subject to the provisions of this clause 7.
7.3 ADDITIONAL VOLUNTARY PREPAYMENT
-------------------------------
The Borrower may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under
clauses 5.9, 9.5 and 16.2, the Contribution of any Bank to which such
Borrower shall have become obliged to pay additional amounts under
clause 5.9, 9.5 or 16.2. 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.
7.4 MANDATORY PREPAYMENT
--------------------
(a) The Borrower shall be obliged to prepay the Loan in whole
immediately upon the occurrence of a Change of Ownership. For the
purpose of this clause 7.4(a), "Change of Ownership" means either
(1) the Borrower is not or ceases to be a wholly owned Subsidiary
of the Shareholder or (2) UPC is not or ceases to be the direct
or indirect legal and beneficial owner of more than 50 per cent.
(or such lesser percentage as the Majority Banks agree) of both
(i) the economic interest in the equity share capital of the
Shareholder and (ii) the voting rights attributable to the equity
share capital of the Shareholder.
34
(b) During the Term Period, the Borrower shall apply 50 per cent. of
Excess Cash Flow (if any) in respect of each financial year of
the Group commencing with the financial year ending on 31st
December, 2002 in prepayment of the Loan provided that no such
prepayment shall be required to be made if the ratio of Senior
Debt (as at the last day of such financial year) to Annualised
Consolidated EBITDA (determined by reference to the Six Months
Period ending on the last day of such financial year) as shown in
the Quarterly Management Accounts in respect of the Quarterly
Period ending on the last day of such financial year delivered to
the Agent in accordance with clause 12.1(g), is less than 4:1.
(c) Each prepayment to be made under paragraph (b) above shall:
(i) be made on Interest Payment Dates falling after the date
upon which the Quarterly Management Accounts in respect of
the Quarterly Period ending on the last day of the relevant
financial year are delivered to the Agent pursuant to clause
12.1(g), beginning with the first such date and continuing
until the prepayment obligation under paragraph (b) above in
respect of such financial year has been satisfied; and
(ii) if on any Interest Payment Date upon which an amount of
Excess Cash Flow is to be applied in prepayment of the Loan:
(A) such amount is less than the amount of the Advances
whose Interest Periods ends on such date, the Borrower may
select against which Advance or Advances the prepayment is
to be made and the proportion of the relevant amount to be
prepaid on each such Advance but shall ensure that the full
amount of such Excess Cash Flow required to be applied is so
applied in prepayment;
(B) such amount is equal to or greater than the amount
of the Advances whose Interest Periods end on such date, the
Borrower shall prepay, or procure the prepayment of, each
such Advance on such date.
7.5 AMOUNTS PAYABLE ON PREPAYMENT
-----------------------------
Any prepayment under this Agreement shall be made in euros together
with: (a) accrued interest to the date of prepayment; (b) any
additional amount payable under clause 5.9, 9.5 or 16.2; and (c) all
other sums payable by the Borrower to the relevant Bank under this
35
Agreement including, without limitation, any accrued commitment
commission payable under clause 8.1(c) on any undrawn amount that is
cancelled at the same time as such prepayment and any amounts payable
under clause 15.1.
7.6 NOTICE OF PREPAYMENT
--------------------
No prepayment may be effected under clause 7.2 or 7.3 unless the
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 Borrower to make such prepayment on
the date specified. No amount prepaid pursuant to clause 7.3 or, after
the end of the Revolving Period, 7.2 may be reborrowed. The Borrower
may not prepay the Loan or any part thereof save as expressly provided
in this Agreement.
7.7 CANCELLATION OF COMMITMENTS
---------------------------
(a) The Borrower 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 euro10,000,000 or any larger
sum which is an integral multiple thereof) of the Total
Commitments which is not then outstanding or requested in a
Drawdown Notice in respect of which an Advance has not been made.
Any such notice of cancellation, once given, shall be irrevocable
and upon such cancellation taking effect the Commitment of each
Bank shall be reduced proportionately.
(b) Upon any Change of Ownership under clause 7.4(a) the Total
Commitments shall forthwith be reduced to zero.
7.8 APPLICATION OF PREPAYMENTS TO REPAYMENT INSTALMENTS
---------------------------------------------------
Any amounts prepaid under clauses 7.3 and 7.4(b) or, after the end of
the Revolving Period, clause 7.2, shall be applied in reducing the
repayment instalments under clause 7.1 rateably.
36
8. FEES AND EXPENSES
-----------------
8.1 FEES
----
The Borrower shall pay to the Agent whether or not any part of the
Commitments is ever advanced:
(a) on the earlier of (i) the date of the first Advance and (ii) the
date falling five Banking Days after the date of this Agreement,
for the account of the Joint Arrangers, an arrangement fee of an
amount agreed between the Borrower and the Joint Arrangers in a
letter dated the date hereof;
(b) on the earlier of (i) the date of the first Advance and (ii) the
date falling five 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 Borrower and the Agent in a letter dated the date hereof; and
(c) in arrears on each Quarter Day after the date of this Agreement
and on the last day of the Revolving Period, for the account of
each Bank, commitment commission computed from the date of this
Agreement at the rate of 0.50 per cent. per annum on the daily
undrawn and uncancelled amount of such Bank's Commitment.
8.2 EXPENSES
--------
The Borrower 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, the Security Agent Guarantor the Overdraft Bank and the
Joint Arrangers in connection with the negotiation, preparation
and execution of this Agreement and the Security Documents, the
syndication of the Facilities, the preparation and distribution
of the Information Memorandum and advertising in connection with
this Agreement 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 a Default or if otherwise agreed with the Borrower,
37
the fees and expenses of accountants or other experts incurred in
relation to any investigation into the affairs of the Borrower or
any member of the 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).
8.3 VALUE ADDED TAX
---------------
All fees and expenses payable pursuant to this clause 8 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.
8.4 STAMP AND OTHER DUTIES
----------------------
The Borrower 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).
8.5 INDEMNITY
---------
The Borrower shall indemnify the relevant Secured Party against any
liability arising by reason of any delay or omission by the Borrower to
pay such duties or Taxes under clause 8.4.
38
9. PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
---------------------------------------------
9.1 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 9.5, free
and clear of any deductions or withholdings, in euros (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 or
the Overdraft Bank (as relevant) at such bank as the Agent or the
Overdraft Bank (as relevant) 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 7.3, 8, 9.5, 15.1, 15.2, 16.1 and 16.2), 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, the Security Agent or the Overdraft Bank 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.
9.2 PAYMENTS BY THE BANKS
---------------------
All sums to be advanced by the Banks to the Borrower under this
Agreement shall be remitted in euros 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 Borrower specified in
the relevant Drawdown Notice.
9.3 NON-BANKING DAYS
----------------
When any payment under this Agreement would otherwise be due 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.
9.4 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
39
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.
9.5 GROSSING-UP FOR TAXES
---------------------
Subject to clause 9.6, 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 9.8(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.
9.6 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 9.5 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 9.6 shall not apply (and the
relevant Obligor shall be obliged to comply with its obligations under
clause 9.5) 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.
40
9.7 CLAW-BACK OF TAX BENEFIT
------------------------
If following any such deduction or withholding as is referred to in
clause 9.5 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 9.5 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 9.7, be entitled to enquire about any Secured
Party's tax affairs.
9.8 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) promptly upon the
earlier of:
(i) being notified that the form, document or information is
required or requested; and
(ii) demand being made by such Secured Party or 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
41
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.
9.9 BANK ACCOUNTS
-------------
Each Bank and the Overdraft 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 Advance and other
sums owing by the Borrower under this Agreement and all payments in
respect thereof made by the Obligors from time to time. The control
account for the Overdraft Facility shall be maintained by the Overdraft
Bank. The control accounts shall, in the absence of manifest error, be
conclusive as to the amount from time to time owing by the Borrower
under this Agreement.
9.10 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 Borrower
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 8.1(a) which
remains unpaid, to the Agent of any portion of the agency fee
payable under clause 8.1(b) which remains unpaid and to the
Overdraft Bank of any portion of the Overdraft Bank fee payable
under clause 8.1(d);
42
(c) thirdly, in or towards payment to the Banks, on a pro rata basis,
of any accrued commitment commission payable under clause 8.1(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 9.10(b)-9.10(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.
9.11 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 a 360 day 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.
9.12 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.
9.13 RECONVENTIONING
---------------
After consultation between the Agent, the Borrower and the Banks and
notwithstanding clause 19.11 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.
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.
43
10. GUARANTEE
---------
10.1 COVENANT TO PAY
---------------
The Guarantors hereby irrevocably and unconditionally jointly and
severally guarantee to each Secured Party the payment of all moneys now
or hereafter due, owing or incurred by any member of the Group under or
pursuant to the Finance Documents when the same become due whether by
acceleration or otherwise.
10.2 GUARANTORS AS PRINCIPAL DEBTORS; INDEMNITY
------------------------------------------
As a separate and independent stipulation, but subject always to the
provisions of clause 10.1, the Guarantors jointly and severally agree
that if any purported obligation or liability of any member of the
Group 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 Group 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 Group or any legal or other
limitation, or any disability or Incapacity or any change in the
constitution of any relevant member of the Group) 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 Group 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 Group.
10.3 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 or any
other person in respect of their obligations under this Guarantee save
as may be agreed by the Majority Banks.
10.4 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.
44
10.5 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 Group 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.
10.6 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 Group 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.
10.7 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 any other person liable; or
(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 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 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.
45
10.8 COLLATERAL INSTRUMENTS
----------------------
None of the Secured Parties shall be obliged to make any claim or
demand on the Borrower 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.
10.9 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 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 Group or from any other person liable; or
(c) take any step or enforce any right against any Obligor 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 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 any other person liable or
have the benefit of, or share in, any payment from or composition
with, any other Obligor 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 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.
46
10.10 SUSPENSE ACCOUNTS
-----------------
Any money received in connection with this Guarantee (whether before or
after any Incapacity of any Obligor) 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 any other person liable or may be applied in or towards
satisfaction of the Guaranteed Liabilities in accordance with the
Security Deed.
10.11 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 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.
10.12 GUARANTORS TO DELIVER UP CERTAIN PROPERTY
-----------------------------------------
If, contrary to clauses 10.3 or 10.9, 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.
10.13 RETENTION OF THIS GUARANTEE
---------------------------
The Secured Parties shall be entitled to retain this Guarantee after as
well as before the payment or discharge of all the Guaranteed
Liabilities for such period as the Agent may reasonably determine.
10.14 CHANGES IN CONSTITUTION OR REORGANISATIONS OF SECURED PARTIES
-------------------------------------------------------------
For the avoidance of doubt and without prejudice to the provisions of
clause 19, 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.
47
10.15 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.
10.16 ACCEDING GUARANTORS
-------------------
(a) To the extent legally possible, the Borrower shall procure that
each Material Subsidiary of the Borrower (other than the Original
Guarantors) become an Acceding Guarantor either (i) in the case
of a company which is a member of the Group as at the date of
this Agreement within 30 days of it ceasing to be an Immaterial
Subsidiary or (ii) in any other case within 30 days of it
becoming a Subsidiary of the Borrower by delivering to the Agent
a Guarantor's Deed of Accession duly executed by such Subsidiary
and the Borrower.
(b) The Borrower 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 in each
case in form and substance satisfactory to the Agent acting
reasonably.
(c) Delivery of a Guarantor's Deed of Accession duly executed by an
Acceding Guarantor and the Borrower constitutes confirmation by
the relevant Acceding Guarantor (with respect to itself only)
that the representations and warranties set out in clauses
11.1(a) to (e) inclusive and 11.2(a), (b), (c), (g) and (h) to be
made by it on the date of the Guarantor's Deed of Accession in
accordance with clause 11.4 are correct as if made by it with
reference to the facts and circumstances then existing.
(d) To the extent legally possible in any Relevant Jurisdiction, 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.
(e) 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.
48
(f) Each of the other Obligors irrevocably authorises the Borrower to
countersign each Guarantor's Deed of Accession on its behalf
without any further consent of or consultation with, any of the
other Obligors.
49
11. REPRESENTATIONS AND WARRANTIES
------------------------------
11.1 REPEATED REPRESENTATIONS AND WARRANTIES
---------------------------------------
Each Obligor in respect of itself and its Material Subsidiaries
represents and warrants to each of the Secured Parties that:
(a) DUE INCORPORATION
-----------------
all of the members of the Group are duly incorporated and validly
existing under the laws of the respective countries of their
incorporation as limited liability companies 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 Borrower, 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
Borrower to borrow or on the powers of any Guarantor to give
guarantees will be exceeded as a result of borrowings under this
Agreement or as a result of the giving of the Guarantee;
(c) BINDING OBLIGATIONS
-------------------
this Agreement constitutes 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 and
the Security Documents to which it is a party by the Obligors
will not (i) contravene any existing 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 breach
of any of the terms of, or constitute a default under, any
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, (iv) breach in any material respect any
term of the Necessary Authorisations or (v) save for the
50
Encumbrances granted to the Secured Parties pursuant to the
Security Documents, result in the creation or imposition of or
oblige any member of the Group to create any Encumbrance (other
than a Permitted Encumbrance) on any member of the Group's
undertakings, assets, rights or revenues;
(e) NO LITIGATION
-------------
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 Group in which
there is a reasonable likelihood of an adverse determination, if
adversely determined would or is reasonably likely to have a
Material Adverse Effect;
(f) FINANCIAL STATEMENTS CORRECT AND COMPLETE:
------------------------------------------
(i) the audited consolidated financial statements of the
Shareholder and its Subsidiaries in respect of the financial
year ended on 31st December 1997 as delivered to the Agent
have been prepared in accordance with GAAP which principles
have been consistently applied and present fairly and
accurately the consolidated financial position of the
Shareholder and its Subsidiaries as at such date and the
consolidated results of the operations of the Shareholder
and its Subsidiaries respectively for the financial year
ended on such date and, as at such date, no member of the
Group had any liabilities (contingent or otherwise other
than liabilities payable to the Shareholder representing the
on-lending of the proceeds of the NUON Facility) which are
significant in the context of the Group (taken as a whole)
or any losses which are not disclosed by, or reserved
against or provided for in, such financial statements;
(ii) the unaudited Quarterly Management Accounts for the
Shareholder and its Subsidiaries in respect of the Quarterly
Period ended 31st December 1998 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 and
51
accurately the results of the operations of the Group for
such Quarterly Period as at such date; and
(iii) the combined financial projections for the Group for the
financial years ending 1999 to 2008 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 when
made in light of current and reasonably foreseeable business
conditions and are reasonable on the date hereof.
11.2 FURTHER REPRESENTATIONS AND WARRANTIES
--------------------------------------
Each Obligor in respect of itself and its Material Subsidiaries further
represents and warrants to each of the Secured Parties that as at the
date of this Agreement, or, in the clause of 11.2(i) only, as at the
date of the Information Memorandum:
(a) NO FILINGS REQUIRED
-------------------
save for the filings, registrations and notarisations referred to
in the legal opinions referred to in schedule 3, it is not
necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement 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 or any
of the Security Documents and this Agreement and the Security
Documents are in proper form for their enforcement in the courts
of any Relevant Jurisdiction;
(b) CHOICE OF LAW
-------------
the choice by the Obligors of English law to govern this
Agreement and the submission by the Obligors to the non-exclusive
jurisdiction of the High Court of Justice in England are valid
and binding;
(c) TITLE TO ASSETS
---------------
each Obligor is the legal and/or beneficial owner of and has a
good and marketable interest in its material assets free and
clear of any Encumbrance other than Permitted Encumbrances;
(d) INTELLECTUAL PROPERTY RIGHTS:
----------------------------
(i) the Intellectual Property Rights owned by or licensed to
each member of the Group are free from any Encumbrance (save
for those created or to be created by or pursuant to the
Security Documents, those arising by, through or under the
terms on which any such Intellectual Property Rights are
licensed to the relevant member of the Group and Permitted
Encumbrances) and any other rights or interests in favour of
third parties;
(ii) the Intellectual Property Rights owned by or licensed to
each member of the Group 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 Group
in carrying on its business, to its knowledge, infringes any
Intellectual Property Rights of any third party where any
52
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 Group 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;
(e) COPYRIGHT MATTERS
-----------------
each member of the Group 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 Group 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;
(f) NECESSARY AUTHORISATIONS
------------------------
each member of the Group has secured all the Necessary
Authorisations, all such Necessary Authorisations are in full
force and effect and each member of the Group is in compliance in
all material respects with all provisions thereof. To the best of
its knowledge and belief after due enquiry, none of the Necessary
Authorisations are the subject of any pending or threatened in
writing attack or revocation;
(g) CONSENTS OBTAINED
-----------------
every 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 by each member of the Group to
authorise, or required by any member of the Group in connection
with, the execution, delivery, validity, enforceability or
admissibility in evidence of this Agreement and the Security
Documents to which it is a party or the performance by each
member of the Group of their respective obligations under this
Agreement 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) NO WITHHOLDING TAXES
--------------------
(assuming the correctness of the confirmation set out in clause
9.6) under the law and practice at the date of this Agreement no
Taxes are imposed by withholding or otherwise on any payment to
be made to or for the account of any Finance Party by any member
53
of the Group under this Agreement or any Security Document or are
imposed on or by virtue of the execution or delivery by any
member of the Group of this Agreement or any Security Document to
which it is a party or any document or instrument to be executed
or delivered under this Agreement or any such Security Document;
(i) INFORMATION MEMORANDUM
----------------------
to the best of the Borrower's knowledge and belief after due
enquiry, as at the date of the Information Memorandum the factual
information relating to the Group and the Shareholder contained
in the Information Memorandum is true and accurate in all
material respects and not misleading in any material respect and
the Information Memorandum does not omit any material facts; as
at the date of the Information Memorandum all reasonable
enquiries have been made by the Borrower to verify the facts and
statements relating to the Group and the Shareholder contained
therein as at the date of the Information Memorandum; all
opinions, projections and forecasts contained therein and the
assumptions on which such opinions, projections and forecasts
were based on and arrived at after due and careful consideration
and enquiry and have been prepared by the Borrower on the basis
of assumptions which the Borrower believed were reasonable as of
the date of such projections in the light of current and
reasonably foreseeable business conditions; there are no material
facts or circumstances which have not been disclosed to the Joint
Arrangers prior to the date hereof the omission of which could
make any factual information contained in the Information
Memorandum inaccurate or misleading in any material respect as at
the date of the Information Memorandum or any of the opinions,
projections and forecasts contained in the Information Memorandum
(and the assumptions on which such opinions, projections and
forecasts were made) misleading in any material respect at the
date of the Information Memorandum. Notwithstanding the above, no
warranty or 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,
and (ii) any person other than any member of the Group and the
Shareholder;
(j) ENVIRONMENTAL MATTERS
---------------------
(i) each member of the Group 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; and
(ii) after due enquiry, no Environmental Claim is, to the
knowledge of any member of the Group, pending, threatened or
existing, as at the date of this Agreement, which has or is
reasonably likely to have a Material Adverse Effect;
54
(k) 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 Group or used or relied upon in the
conduct of the business of each member of the Group (including
systems and equipment supplied by others or with which such
computer systems of such member of the Group interface). The
costs to the Group of any reprogramming required in respect of
the systems and equipment owned or operated by any member of the
Group 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
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;
(l) SHARES
------
all shares issued by each member of the Group have been validly
allotted;
(m) 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;
(n) DORMANT COMPANIES
-----------------
each member of the Group which is not a Guarantor is an
Immaterial Subsidiary; and
(o) NO DEFAULT
----------
no other Default has occurred and is continuing.
11.3 FIRST ADVANCE REPRESENTATIONS AND WARRANTIES
--------------------------------------------
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Group further represents and warrants to each of the
Secured Parties that:
(a) PRINCIPAL AGREEMENTS:
--------------------
55
(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) to the best of its knowledge and belief after due enquiry,
(1) no party is in breach of any material term thereof; (2)
there is no material dispute subsisting between the parties
thereto and (3) no written amendments have been made
thereto;
(b) TELECOMMUNICATIONS AND CABLE LAWS
---------------------------------
to the best of its knowledge and belief after due enquiry, each
member of the Group is in compliance in all material respects
with all 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;
(c) NO MATERIAL ADVERSE CHANGE
--------------------------
there has been no material adverse change in the consolidated
financial position of the Group from that set forth in the
financial statements referred to in clause 11.1(f)(i) and (ii);
and
(d) CONTRACTUAL COMMITMENTS
-----------------------
since the unaudited consolidated accounts of the Group for the
year ended 31st December 1998, no dividends (in cash or specie)
of the Borrower or any other rights or benefits have been
declared, made or paid by the Borrower and no member of the Group
has entered into any contractual commitments of a material
nature, (other than (i) the Principal Agreements, (ii) for the
purpose of the Project, or (iii) contractual commitments
constituting Permitted Borrowings or Permitted Encumbrances).
11.4 REPETITION
----------
The representations and warranties in (i) clause 11.1 (so that (a) the
representation and warranty in clause 11.1 (f)(i) shall for this
purpose refer to the then latest audited consolidated financial
statements of each of UTH and its Subsidiaries and commencing with the
financial year ending 31st December, 1999, the Group verified by the
auditors to each of UTH and its Subsidiaries and the Group and
delivered to the Agent under clause 12.1, (b) the representation and
warranty in clause 11.1 (f)(ii) shall for this purpose refer to the
then latest Quarterly Management Accounts delivered to the Agent under
clause 12.1, (c) the representation and warranty contained in clause
11.1 (f)(iii) shall for this purpose refer to the then latest combined
financial projections of the Group and the then latest operating
statistics projections and shall not include a representation or
warranty as to the Management Base Case) shall be deemed to be repeated
56
by the Obligors on and as of each Drawdown Date and each Interest
Payment Date, (ii) clause 11.2 shall be deemed to be repeated by the
Obligors on and as of each Drawdown Date if, taking into account any
repayment made on such Drawdown Date, the Loan increases as if made
with reference to the facts and circumstances existing on each such
date. In the case of an Obligor which becomes a party to this Agreement
after the date hereof the representations and warranties in clause 11.1
(amended as set out above) and clause 11.2 (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.
57
12. UNDERTAKINGS
------------
12.1 POSITIVE COVENANTS
------------------
Each Obligor in respect of itself and its Material Subsidiaries
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 Borrower, 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 or 13 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) any
lapse, suspension or termination of or refusal by any person to
renew or extend any Necessary Authorisation of which it becomes
aware or any breach of any Necessary Authorisation where in the
case of a Necessary Authorisation from any person other than a
governmental or regulatory authority, any such lapse, suspension,
termination, refusal or breach would or is reasonably likely to
have a Material Adverse Effect, (iii) (to the extent known to any
member of the Group) 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, (iv) any application
of which it becomes aware for any other licence or franchise
agreement by means of cable television systems (including
satellite master antennae television systems and multi-point
microwave distributions systems) with respect to the territory
covered by the Registrations where any such application, if
successful, would or is reasonably likely to have a Material
Adverse Effect, (v) any material dispute under any Principal
Agreement and (vi) any breach of any Telecommunications and Cable
Laws by any member of the Group which would or is reasonably
likely to have a Material Adverse Effect;
(b) CONSENTS AND LICENCES
---------------------
without prejudice to clauses 3 and 11.1, 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 conditions and restrictions (if any) imposed
in, or in connection with, every consent, authorisation, licence,
58
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
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 shall, without
prejudice to the provisions of clause 12.2 or to the security
intended to be created pursuant to the Security Documents, at all
times rank at least pan 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 Project and/or in the business of acting as
the holding company of its Subsidiaries (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);
(f) FINANCIAL STATEMENTS
--------------------
prepare:
(i) annual audited:
(A) consolidated financial statements of UTH
and its Subsidiaries; and
(B) commencing with the financial year ending
31st December, 1999, consolidated financial state-
ments of the Group,
each 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 for distribution to
all of the Banks as soon as practicable but not later than
120 days after the end of the financial year to which they
relate; and
(ii) semi-annual unaudited consolidated financial statements of
the Group (on the same basis as that used for the annual
financial statements referred to in (i) above) and deliver
to the Agent sufficient copies of the same for distribution
59
to all of the Banks as soon as practicable but not later
than 60 days after the end of the Six Month Period to which
they relate.
Each set of consolidated financial information or financial
statements of the Group delivered pursuant to this clause 12.1(f)
shall be accompanied by a calculation in reasonable detail of
Consolidated EBITDA for the Group;
(g) QUARTERLY MANAGEMENT ACCOUNTS
-----------------------------
in respect of each Quarterly Period commencing with the Quarterly
Period ending 30th December 1998, prepare unaudited consolidated
Quarterly Management Accounts for the Group 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 60 days after the
Quarterly Period to which they relate;
(h) MONTHLY INFORMATION
-------------------
in respect of each calendar month commencing with March 1999,
prepare consolidated Monthly Information for the Group and
deliver a copy of the same to the Agent for distribution to all
the Banks as soon as practicable but not later than 30 days after
the month to which they relate.
(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 (ii) 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
Group) 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 12.1(g)
in respect of the financial period to which such Compliance
Certificate relates:
(i) every material document issued by the Borrower or any of its
Subsidiaries to its creditors generally;
(ii) a Compliance Certificate from the auditors of the Group in
respect of each financial year and an Authorised Officer of
the Borrower in respect of each Quarterly Period;
(iii) an Annual Budget for each financial year for the Group no
later than the last day of the preceding financial year; and
(iv) no later than 30th June in each year, revised financial
projections and revised operating statistics projections in
relation to the Group containing information of a
60
substantially similar type and to a substantially similar
level of detail as the base case financial projections and
operating statistics projections contained in the Management
Base Case, such projections to extend to at least the 31st
December 2008 and to contain details of the assumptions on
the basis of which such projections have been prepared and
an explanation of any discrepancies from the most recently
delivered financial projections and projections for
operating statistics delivered under this sub-paragraph
(i)(iv) (or, in the case of the first such financial
projections, from the base case financial projections or
operating statistics projections (as the case may be)
contained in the Management Base Case)
(j) CHANGE IN BASIS OF ACCOUNTS
---------------------------
(in the case of the Borrower) ensure that all financial
statements delivered under clause 12.1(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 11.1(g) and the 1999 Budget (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 the Borrower shall promptly notify the Agent in writing of
the relevant change and (at the option of the Borrower) 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 13.1 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 28
days. If agreement is reached between the Borrower 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 the Borrower shall then be obliged to
produce financial statements on the New Basis only. If no such
agreement is reached then the Borrower 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).
61
Where the Borrower is under an obligation to deliver financial
statements under clause 12.1(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 12.1 (j) shall be delivered within the relevant time
period set out in clause 12.1.
The provisions of this clause 12.1 (j) shall also apply, mutatis
mutandis, to the preparation and delivery of the Annual Budget
under clause 12.1 (i)(iii) and the revised financial projections
under clause 12.1 (i)(iv).
(k) FINANCIAL YEAR END
------------------
maintain a financial year end of 31 December for each member of
the Group save with the prior written consent of the Majority
Banks;
(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 or relating to the Facilities;
(m) AUDITORS
--------
ensure that Xxxxxx Xxxxxxxx & Co. is appointed as auditor of the
Borrower and each of its Subsidiaries 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 a copy of (i) each Principal Agreement
entered into after the date of this Agreement and (ii) any
material report, notice or other communication relating to or
alteration of the Principal Agreements, the Necessary
Authorisations and such financial and other information
concerning each member of the Group and their respective affairs
as the Agent or any Bank (acting through the Agent) may from time
to time reasonably request;
(o) INSURANCE
---------
62
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 a 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
the Borrower or its relevant Subsidiary, after having made
arrangements with the Borrower so to do and after entering into a
confidentiality undertaking if reasonably required by the
Borrower (a) visit and inspect the properties of any member of
the Group during normal business hours, (b) inspect and make
extracts from and copies of its books and records other than
records which the relevant member of the Group is prohibited by
law 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 Group and Compliance Certificates issued by the auditors;
(q) COMPLIANCE WITH LAWS AND REGULATIONS
------------------------------------
comply with the terms and conditions of all laws (including
Telecommunications and Cable Laws and the Necessary
Authorisations), regulations, agreements, licences and
concessions including, without limitation, all Environmental Laws
and all Environmental Licences if the failure to comply
therewith, would or is reasonably likely, in the opinion of the
Agent acting reasonably, 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);
63
(s) COST CAPITALISATION POLICY
--------------------------
maintain a cost capitalisation policy consistent with the cost
capitalisation policy used in the preparation of the financial
statements referred to in clause 11.1 (f)(i) or such other cost
capitalisation policy as may be approved by the Agent (acting on
the instructions of the Majority Banks) and the Borrower, after
consultation with its auditors, from time to time;
(t) AGREED HEDGING PROGRAMME
------------------------
as from the date falling 60 days after the date of this Agreement
maintain interest rate protection arrangements with a Bank in
respect of 50 per cent. of the Loan. Any such interest rate
protection arrangements shall be for an initial period of at
least 3 years and interest rate protection arrangement in respect
of 50 per cent. of the Loan must extend for a period of at least
one year at all times;
(u) REGISTRATIONS AND NECESSARY AUTHORISATIONS
------------------------------------------
obtain or cause to be obtained, every 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 Necessary Authorisations) and (A) ensure
that none of the same (to the extent that it is required to
enable any member of the Group 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 Group on substantially identical terms, on terms more
beneficial to the Group or on terms then required by the relevant
governmental or public body or authority or court in the Relevant
Jurisdiction 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 Group or required by the relevant governmental or public
body or authority or court in the Relevant Jurisdiction) and that
no member of the Group 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 subparagraph (B), in the reasonable opinion
of the Majority Banks, would or is reasonably likely to have a
Material Adverse Effect;
(v) CHARGED ACCOUNTS
----------------
promptly pay, or cause to be paid, the monies received or to be
received constituting the Earnings into the Charged Accounts;
64
(w) 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 Group, such Relevant Person shall enter into a Subordination
Deed 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
Subordination Deed 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 substantially similar qualifications to those made in
the legal opinions referred to in schedule 3;
(x) MORTGAGE DEED
-------------
enter into a Mortgage Deed, on terms and conditions satisfactory
to the Agent, in respect of any individual immoveable asset which
has a book value or purchase price in excess of euro5,000,000
(other than a Headend) acquired after the date of this Agreement
and provide the Agent with such documents and evidence as it may
reasonably require as to the power and authority of the relevant
member of the Charging Group to enter into such Mortgage Deed and
that the same constitute valid and legally binding obligations of
such member of the Charging Group and ensure that the aggregate
book value or purchase price of all assets which are properly not
the subject of a Mortgage Deed or a Moveables Pledge does not
exceed eurol2,500,000 (in aggregate); and
(y) UPC FUNDING UNDERTAKING
-----------------------
in the case of the Borrower only, if in respect of any Quarterly
Period falling during 1999 and 2000 the actual financial
performance of the Group indicates that the Borrower will not be
able to fund its operating or capital expenditure requirements
for the relevant Quarterly Period through the results of its
operations, Advances, Utilisations or otherwise, make demand on
UPC to fund the shortfall prior to the end of the relevant
Quarterly Period by making the Additional Subordinated
Shareholder Loan and to borrow any such Additional Shareholder
Loan.
12.2 NEGATIVE COVENANTS
------------------
Each Obligor in respect of itself and its Material Subsidiaries
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 Borrower, without the prior written
consent of the Agent acting on the instructions of the Majority Banks:
65
(a) NEGATIVE PLEDGE
---------------
save for Encumbrances created by the Security Documents, it will
not permit any Encumbrance (other than the Permitted
Encumbrances) by any member of the 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 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 Group merges or
consolidates with any other company or person save for mergers
between any members of the Group with any or all of the other
members of the Group ("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;
(ii) such Merged Entity is a member of the Group and is liable
for the obligations of the relevant Original Entities
(including the obligations under this Agreement and the
Security Documents) which 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 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
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
66
the Merged Entity has assumed all the rights and obligations
of the relevant Original Entities under the Principal
Agreements and all material Necessary Authorisations;
(c) DISPOSALS
---------
it will not and will procure that no other member of the Group
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 (i) transfers,
sales or disposals on arms' length terms in the ordinary course
of trading for full consideration; and (ii) transfers, sales or
disposals by the Borrower or a Charging Subsidiary from or, as
the case may be, to another Charging Subsidiary provided that, if
the relevant asset or revenues are charged to the Secured Parties
pursuant to a Security Document, the relevant assets or revenues
remain at all times charged to the Secured Parties pursuant to a
Security Document to the same extent they were charged by the
transferring entity);
(d) INTRA-GROUP ACCOUNTS
--------------------
(without limiting the generality of and subject to the exceptions
set out in clause 12.2(c)) it will not subordinate, postpone,
defer, assign or otherwise dispose of or deal with, any
Indebtedness owing to it by any member of the Group and will
procure that no member of the Group will subordinate, postpone,
defer, assign or otherwise dispose of or deal with, any
Indebtedness owing to it by any other member of the Group save as
required pursuant to this Agreement for the benefit of the
Secured Parties;
(e) LOANS AND GUARANTEES
--------------------
it will not, and will procure that no member of the 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) to or for the
benefit of another member of the Charging Group, (ii) normal
trade credit in the ordinary course of day to day trading, (iii)
as permitted by clause 12.2(f), (iv) loans to employees of the
Borrower up to an aggregate amount of not more than euro100,000
outstanding at any time and (v) to the extent that the same
constitute Permitted Payments;
(f) BORROWED MONEY
--------------
it will not and will procure that the Group will not create,
incur or otherwise permit to be outstanding any Borrowed Money
(other than Permitted Borrowings);
67
(g) ISSUE OF SHARES
---------------
(i) the Borrower will not and will procure that no member of the
Group (other than in respect of such other members of the Group
in order to permit a solvent reorganisation permitted under
clause 12.2(b)) reduce its capital or purchase or redeem any
class of its shares or any other ownership in it and (ii) it will
not and will procure that no member of the Charging Group issues
any shares of any class save that any member of the Charging
Group may issue shares to or otherwise acquire additional rights
from any other member of the Charging Group so long as 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 require;
(h) INVESTMENTS
it will not and will procure that no member of the Group:
(i) makes any loan or advance to, or enters into any transaction
having the effect of lending money with, any person (other
than a member of the Charging Group); or
(ii) acquires for a consideration any document evidencing
Indebtedness, capital stock or other securities of any
person; or
(iii) 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
(iv) 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 (i) (in each case) Permitted Acquisitions and (ii) (in
the case of (ii), (iii) and (iv)) members of the Group may
undertake such transactions referred to provided that such
investment is in the nature of the business carried on by the
Group and the aggregate consideration in money or monies worth
paid or payable in respect of such investment does not exceed
euro10,000,000 (or its equivalent) and (iii) (in the case of (i)
and (ii)) members of the Group may undertake such transactions
referred to in sub-clauses (i)-(v) of clauses 12.2(e);
(i) CAPITAL EXPENDITURE
-------------------
it will not and will procure that no member of the Group incurs
any capital expenditure other than in relation to the Project;
68
(j) SWAPS AND HEDGING
-----------------
it will not and will procure that no member of the 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 the business for the genuine hedging of the
relevant underlying transaction;
(k) RESTRICTED PAYMENTS
-------------------
it will not and will procure that no member of the Group makes
any Restricted Payments other than Permitted Payments; and
(l) CONSTITUTIVE DOCUMENTS
----------------------
it will not, and will procure that none of members of the 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.
69
13. FINANCIAL COVENANTS
-------------------
13.1 FINANCIAL COVENANTS
-------------------
The Borrower 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 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 day) shall not exceed the number set
out against such period in column (2) below:
------------------------------------------------------ ------------------------------
(1) (2)
Period Ratio
------------------------------------------------------ ------------------------------
from the date of this Agreement to (and including) 7.75
31st December, 2001
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2002 to(and 6.0
including) 31st December 2002
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2003 to (and 5.0
including) 31st December, 2003
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2004 and thereafter 4.0
------------------------------------------------------ ------------------------------
(b) ANNUALISED CONSOLIDATED EBITDA
------------------------------
to ensure that on each Quarter Day Annualised Consolidated EBITDA
before Management Fees (calculated on each Quarter Day by
reference to the Six Month Period ending on such date) shall
exceed 85 per cent. of twice the base case Consolidated EBITDA
before Management Fees for such Six Month Period shown in the
Management Base Case;
(c) SENIOR DEBT CASH INTEREST CHARGES
---------------------------------
to ensure that on each Quarter Date 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 the amount of Senior Debt
Cash Interest Charges attributable to the 12 month period ending
on such Quarter Date shall be greater than the number set out
against such period in column (2) below:
70
------------------------------------------------------ ------------------------------
(1) (2)
Period Ratio
------------------------------------------------------ ------------------------------
from the date of this Agreement to (and including 2:1
31st December, 2001)
------------------------------------------------------ ------------------------------
1st January, 2002 and thereafter 3:1
------------------------------------------------------ ------------------------------
(d) SENIOR DEBT SERVICE COVER
-------------------------
to ensure that 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 greater than the number set out against
such period in column (2) below:
------------------------------------------------------ ------------------------------
(1) (2)
Period Ratio
------------------------------------------------------ ------------------------------
from (and including) 1 January, 2002 to (and 1.1:1
including) 31st December, 2002
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2003 to(and 1.1:1
including) 31st December 2003
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2004 to (and 1.4:1
including) 31st December, 2004
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2005 to (and 1.6:1
including) 31st December, 2005
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2006 to (and 1.7:1
including) 31st December, 2006
------------------------------------------------------ ------------------------------
from (and including) 1st January, 2007 and thereafter 2.0:1
------------------------------------------------------ ------------------------------
13.2 AUDITORS CERTIFICATE
--------------------
If at any time the Majority Banks (acting reasonably and following
consultation with the Borrower) 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 the Borrower's auditors as to such
71
figure. For such purposes the Borrower'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 the Borrower (unless the certificate so provided by the
Borrower'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 Borrower's auditors deliver the relevant
certificate under this clause 13.2 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 the Borrower's
auditors of a certificate under this clause 13.2 be made by reference
to such certificate and the Borrower 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.
72
14. EVENTS OF DEFAULT
-----------------
14.1 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 Group):
(a) NON-PAYMENT
-----------
the Borrower fails to pay any principal sum due from it under
this Agreement in the currency, at the time and in the manner
stipulated in this Agreement, or any other sum due from it under
this Agreement within three Banking Days of the due date in the
currency and in the manner stipulated in this Agreement; 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 12.1(c), (d), (e), (f), (g), (h), (i)(ii), (k) and (y),
clause 12.2(a), (b), (c), (f),(g), (h), (i) and (k) and clause
13; or
(c) BREACH OF OTHER OBLIGATIONS
---------------------------
the Shareholder or any Obligor commits any breach of or omits to
observe any of the obligations or undertakings expressed to be
assumed by it under this Agreement or the Security 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 21 days
of the Agent notifying the Shareholder or the relevant Obligor
(as the case may be) of such default and of such required action;
or
(d) MISREPRESENTATION
-----------------
any representation or warranty made or deemed to be made or
repeated by or in respect of the Shareholder or any Obligor or
any other member of the Group in or pursuant to this Agreement or
the Security Documents or in any notice, certificate or statement
referred to in or delivered under this Agreement or the Security
Documents is or proves to have been incorrect or misleading in
any material 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 21 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
73
(e) CHALLENGE TO SECURITY
---------------------
any Security Document is not or ceases to be effective or the
Shareholder or any member of the 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 UTH, the Shareholder or any member of
the Group (other than Borrowed Money made available to such
person by any of its Subsidiaries or Holding Companies) 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 UTH, the
Shareholder or any member of the Group (other than Borrowed Money
made available to such person by any of its Subsidiaries or
Holding Companies) 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 UTH, the Shareholder or any member of the Group
becomes entitled to declare any Borrowed Money (other than
Borrowed Money made available to such person by any of its
Subsidiaries or Holding Companies) of UTH, the Shareholder or any
member of the 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 UTH, the Shareholder or
any member of the Group relating to Borrowed Money (other than
facility or commitment made available to such person by any of
its Subsidiaries or Holding Companies) is withdrawn, suspended or
cancelled by reason of any default (however described) of the
company concerned and the amount, or aggregate amount at any one
time, of all Borrowed Money (other than Borrowed Money made
available to such person by any of its Subsidiaries or Holding
Companies) 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 euro5,000,000 or its
equivalent in the currency in which the same is denominated and
payable; or
(g) DERIVATIVES CONTRACT DEFAULT
----------------------------
UTH, the Shareholder or any member of the Group fails to make
payment in relation to a Derivatives Contract of any sum equal to
or greater than euro2,000,000 in aggregate at any one time (or
its equivalent in the relevant currency of payment) with respect
to any member of the Group and euro5,000,000 in aggregate at any
one time (or its equivalent in the relevant currency payment)
with respect to UTH or the Shareholder on its due date (or within
74
any applicable grace period expressly contained in the agreement
relating to such Derivatives Contract in its original terms) or
the counterparty to a Derivatives Contract becomes entitled to
terminate that Derivatives Contract early by reason of default on
the part of UTH, the Shareholder or any member of the Group and
the Net Derivatives Liability of the Shareholders or members of
the 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); or
(h) LEGAL PROCESS
-------------
(i) any judgment or order for an amount of euro1,000,000 (or its
equivalent) or more made against UTH, the Shareholder or any
member of the Group is not stayed, complied with or being
appealed against in good faith by appropriate proceedings
(provided that such appeal is being diligently pursued and
the Borrower has demonstrated to the Agent by providing an
opinion of reputable legal advisers in the relevant
jurisdiction to the effect that the appeal has good
prospects of success) 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
undertakings, assets, rights or revenues of UTH, the
Shareholder or any member of the Group and is not discharged
within 14 days save where UTH, the Shareholder or the
relevant member of the Group is, in good faith, contesting
the relevant process by appropriate proceedings diligently
pursued and the Majority Banks are satisfied that the
ability of the Group to comply with its obligations under
the Finance Documents will not be materially and adversely
affected whilst such process is being so contested; or
(i) INSOLVENCY
----------
UTH, the Shareholder or any member of the Group 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
(j) REDUCTION OR LOSS OF CAPITAL
a meeting is convened by the Borrower for the purpose of passing
any resolution or agreeing to, or the Borrower does, purchase,
reduce or redeem any of its share capital; or
75
(k) WINDING UP
----------
any petition is presented and is not discharged within 14 days or
other step is taken for the purpose of winding up UTH, the
Shareholder or any member of the Group (not being a petition
which UTH, the Shareholder or the relevant member of the Group
(as the case may be) can demonstrate to the satisfaction of the
Agent, by providing an opinion of leading counsel to that effect,
is frivolous, vexatious or an abuse of the process of the court
or relates to a claim to which UTH, the Shareholder or the
relevant member of the Group (as the case may be) has a good
defence and which is being vigorously contested by UTH, the
Shareholder or the relevant member of the Group (as the case may
be)) or an order is made or resolution passed for the winding up
of UTH, the Shareholder or any member of the Group or a notice is
issued convening a meeting for the purpose of passing any such
resolution other than of a member of the Group other than the
Borrower in relation to, or for the purpose of, a solvent
reorganisation (i) permitted under clause 12.2(b) or (ii) on
terms previously approved by the Agent (acting on the
instructions of the Majority Banks); or
(l) COMPOSITIONS
------------
any steps are taken, or negotiations commenced, by UTH, the
Shareholder or any member of the Group 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
(m) ANALOGOUS PROCEEDINGS
---------------------
there occurs, in relation to UTH, the Shareholder or any member
of the Group, 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 UTH, the Shareholder or
any member of the Group otherwise becomes subject, in any such
country or territory, to the operation of any law relating to
insolvency, bankruptcy or liquidation; or
(n) CESSATION OF BUSINESS
---------------------
UTH, the Shareholder or the Group (taken as a whole) suspends or
ceases or threatens to suspend or cease to carry on their
respective businesses; or
(o) SEIZURE
-------
all or a material part of the undertakings, assets, rights or
revenues of; or shares or other ownership interests in the Group
76
(taken as a whole) are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any
government; or
(p) PRINCIPAL AGREEMENTS AND UPC FUNDING UNDERTAKING
------------------------------------------------
(i) save as is required by any term of this Agreement, the UPC
Funding Undertaking or any Principal Agreement is
terminated, suspended, revoked or cancelled or otherwise
ceases to be in full force and effect (unless, in the case
of a Principal Agreement only, services of a similar nature
to those provided pursuant to such Principal Agreement are
at all times provided to the Group on terms which are not
materially more onerous on the relevant member of the Group
or on the terms imposed by the mandatory requirements of any
regulatory body and, in the case of a Principal Agreement
only, such termination, suspension, revocation, cancellation
or cessation (in the reasonable opinion of the Agent) would
or is reasonably likely to have a Material Adverse Effect;
or
(ii) any alteration or variation is made to any term of the UPC
Funding Undertaking or any Principal Agreement which, in the
case of a Principal Agreement only, 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 or the UPC
Funding Undertaking where, in the case of a Principal
Agreement only, 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 Group, the relevant services are at
all relevant times provided to the appropriate members of
the Group on the basis set out in clause 14.1(p)(i); or
(q) UNLAWFULNESS
------------
it becomes unlawful at any time for the Shareholder, any Obligor
or any Subordinated Creditor to perform any of their respective
material obligations under this Agreement or the Security
Documents or any of the material obligations of the Shareholder,
any Obligor or any Subordinated Creditor under this Agreement or
the Security Documents becomes unenforceable in any way or there
ceases to be security over the relevant property or assets of the
Shareholder or the relevant Obligor as intended and created by
the Security Documents; or
77
(r) ENVIRONMENTAL MATTERS
---------------------
as a result of any Environmental Law the Agent, the Joint
Arrangers, the Security Agent, the Security Agent Guarantor or
any of the Banks becomes subject to a material, in the 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) as a result of it entering into the
Agreement or any of the Security Documents which was not caused
by its negligence or wilful default; or
(s) REPUDIATION
-----------
the Shareholder, any Obligor or any Subordinated Creditor
repudiates this Agreement or any Security Document to which it is
a party or does or causes or permits to be done any act or thing
evidencing an intention to repudiate this Agreement or any such
Security Document; or
(t) SUBORDINATED CREDITORS
----------------------
(i) the Subordinated Creditor commits any breach of or omits to
observe any of the obligations or undertakings expressed to
be assumed by it under a Subordination Deed 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 21
days of the Agent notifying the 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 the Subordinated Creditor in or
pursuant to any Subordination Deed is or proves to have been
incorrect or misleading in any material 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 21 days of the Agent
notifying the Subordinated Creditor of such act or
circumstance and such required action; or
(iii) the Subordinated Creditor is not or ceases to be bound by a
Subordination Deed; or
(iv) any payment due from a member of the 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
78
(v) any Subordinated Creditor or any liquidator, administrator
or administrative or other receiver (or similar officer) of
any Subordinated Creditor takes steps to contest the
subordination effected by a Subordination Deed; or
(u) MATERIAL EVENTS
---------------
any other event occurs or circumstances arise which in the
opinion of the Agent would or is reasonably likely to have a
Material Adverse Effect; or
(v) QUALIFICATION OF ACCOUNTS
-------------------------
the auditors of UTH or the Shareholder or any member of the Group
qualify their report on the audited financial statements of UTH
or the Shareholder or the relevant member of the Group (as the
case may be) and/or the audited consolidated financial statements
of the Group in any way whatsoever except where the qualification
is of a technical nature and the remedy for the matter giving
rise to the qualification would have no effect on the results of
UTH or the Shareholder or the relevant member of the Group (as
the case may be) and/or the Group for the period to which such
accounts relate or on the financial position of UTH or the
Shareholder or the relevant member of the Group (as the case may
be) and/or the Group as at the end of such period.
14.2 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 Borrower 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
(b) the Loan and all interest and commitment commission accrued and
all other sums payable under this Agreement 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 Borrower (and without
prejudice to clause 5.6), to select the duration of each period for the
calculation of interest in relation to any outstanding Advances or
other sums payable under this Agreement.
79
14.3 DEMAND BASIS
------------
If, pursuant to clause 14.2(b), the Agent declares the Loan 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 Borrower
(a) call for repayment of the Advances and Utilisations on such date
as may be specified in such notice whereupon the Advances and
Utilisations 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 or (b) withdraw such
declaration with effect from the date specified in such notice.
80
15. INDEMNITIES
-----------
15.1 MISCELLANEOUS INDEMNITIES
-------------------------
The Borrower 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 Advances or part thereof being
made otherwise than on an Interest Payment Date relating thereto;
or
(d) any Advance 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.
15.2 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
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 the Borrower. 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
81
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.
15.3 ENVIRONMENTAL INDEMNITY
-----------------------
The Borrower agrees to indemnify on demand each Secured Party, and
their respective officers, employees, agents and delegates (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.
15.4 ESGB RESERVE REQUIREMENTS
-------------------------
The Borrower agrees to indemnify on demand each Bank against any cost
or loss suffered by it as a result of complying with the reserve
requirements of the European System of Central Banks to the extent such
requirements relate to its participation in the Facilities and are not
recoverable by such Bank under clause 16.2.
82
16 UNLAWFULNESS AND INCREASED COSTS; MITIGATION
--------------------------------------------
16.1 UNLAWFULNESS
------------
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Advances or to maintain its Commitment or fund its
Contribution, such Bank shall promptly, through the Agent, notify the
Borrower whereupon (a) such Bank's Commitment under the Facilities
shall be reduced to zero and (b) the Borrower shall be obliged to
prepay the Contribution of such Bank either (A) forthwith, if such
unlawfulness has immediate or retrospective effect, or (B) on a future
specified date not being earlier than the latest date permitted by the
relevant law or regulation. Any prepayment pursuant to this clause 16.1
shall be made together with all amounts referred to in clause 7.4.
16.2 INCREASED COSTS
---------------
If the result of any change in, or in the interpretation or application
of; or the introduction of; 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:
(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,
83
(g) then and in each such case (but subject to clause 16.3):
(i) such Bank shall notify the Borrower through the Agent in
writing of such event promptly upon its becoming aware of
the same; and
(ii) the Borrower 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 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 16.2 and clause 16.4 "HOLDING COMPANY"
means, in relation to a Bank, the company or entity (if any) within the
consolidated supervision of which such Bank is included.
16.3 EXCEPTIONS
----------
Nothing in clause 16.2 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 9.5; 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 16.3(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).
84
16.4 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 9.5;
(c) the reduction of any Bank's Commitment to zero or the Borrower
being required to prepay any Bank's Contribution pursuant to
clause 16.1; or
(d) the 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 16.2;
then, without in any way limiting, reducing or otherwise qualifying
the obligations of the Borrower or the Borrower under clause 9 and
this clause 16, such Bank shall, in consultation with the Agent,
endeavour to take such reasonable steps (and/or, in the case of clause
16.2 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 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.
85
17 SET-OFF AND PRO RATA PAYMENTS
-----------------------------
17.1 SET-OFF
-------
If an Event of Default has occurred and is continuing, each Obligor
authorises each Finance Party 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
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 17.1. 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.
17.2 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 9.1 or 9.10 (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 7.3, 8,
9.5, 15.1, 15.2, 16.1 or 16.2) (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 9.1 or 9.10 (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
9.10; 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.
86
(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 17.2.
(d) Notwithstanding the foregoing provisions of this clause 17.2 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).
17.3 NO RELEASE
----------
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 17.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 17.2.
17.4 NO CHARGE
---------
The provisions of this clause 17 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 17.2.
87
18. ASSIGNMENT SUBSTITUTION AND LENDING OFFICES
-------------------------------------------
18.1 BENEFIT AND BURDEN
------------------
This Agreement shall be binding upon, and enure for the benefit of; the
Finance Parties and the Obligors and their respective successors and
permitted assigns.
18.2 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 12.2(b).
18.3 ASSIGNMENT BY BANKS
-------------------
Each Bank (an "ASSIGNOR BANK") may assign all or any part (being at
least euro2,500,000 and an integral multiple of euro500,000) of its
rights to a Qualifying Bank (an "Assignee") with the prior consent in
writing of the Borrower, such consent not to be unreasonably withheld
or delayed. The Assignor Bank shall promptly notify the Borrower and
the Agent of any such assignment.
18.4 TRANSFER
--------
Each Bank (a "TRANSFEROR BANK") may transfer all or any part (being at
least euro2,500,000 and an integral multiple of euro500,000) of its
rights, benefits and/or obligations under this Agreement to a
Qualifying Bank (a "TRANSFEREE") with the prior consent in writing of
the Borrower, such consent not to be unreasonably withheld or delayed.
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 Existing 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 Existing Bank are expressed in a Transfer
Certificate to be the subject of the transfer in favour of the
Transferee effected pursuant to this clause 18.3, 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 Borrower 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 Borrower,
under this Agreement and the Security Deed ("DISCHARGED RIGHTS")
88
shall be cancelled and the rights of the Transferor Bank against
the Borrower 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 euro1,000 except in the case such transfers
are made by any of the Banks listed in Schedule 1 within 3 months of
the date of this Agreement. The Agent shall promptly notify the
Borrower of the receipt by it of any Transfer Certificate and shall
promptly deliver a copy of such Transfer Certificate to the Borrower.
18.5 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 18 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.
18.6 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 18.3 or 18.4 without any further consent of; or consultation
with, any such party except, in the case of the Borrower, the consent
required pursuant to clause 18.3 or 18.4.
18.7 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
18.3 or 18.4 all relevant references in this Agreement and the Security
89
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.
18.8 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 16.2 with respect to its obligations under this
Agreement. If the office through which a Bank is lending is changed
pursuant to this clause 18.8, such Bank shall notify the Agent promptly
of such change.
18.9 DISCLOSURE OF INFORMATION
-------------------------
Subject to such person first executing a confidentiality undertaking in
a form acceptable to the Borrower, 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 Group as such Bank shall
consider appropriate.
90
19. JOINT ARRANGERS, AGENT, SECURITY AGENT, THE SECURITY AGENT GUARANTOR
-----------------------------------------------------------------------
OVERDRAFT BANK AND REFERENCE BANKS
----------------------------------
19.1 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, the Security Agent
Guarantor 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, the Security Agent Guarantor and the
Overdraft Bank may from time to time be the same entity, the Agent, the
Security Agent Guarantor and the Overdraft Bank have entered into this
Agreement in their separate capacities as agent for the Banks under and
pursuant to this Agreement and as Security Agent Guarantor and as
Overdraft Bank for the Overdraft Facility. However, where this
Agreement provides for the Agent to communicate with or provide
instructions to the Security Agent Guarantor, while the Agent and the
Security Agent Guarantor and the Overdraft Bank 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.
19.2 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.
19.3 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 the
Borrower or any other Obligor under or pursuant to this
Agreement;
91
(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
(b) (subject to the other provisions of this clause 19) 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.
19.4 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);
(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;
92
(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.
19.5 NO LIABILITY OF JOINT ARRANGERS, SECURITY AGENT, SECURITY AGENT
-----------------------------------------------------------------------
GUARANTOR AND AGENT
-------------------
None of the Joint Arrangers, the Security Agent, the Security Agent
Guarantor, the Agent or any of their respective employees and agents
shall:
(a) be obliged to request any certificate or opinion under clause
12.1 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.
93
For the purposes of this clause 19 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 Borrower 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.
19.6 NON-RELIANCE ON JOINT ARRANGERS, SECURITY AGENT, SECURITY AGENT
-----------------------------------------------------------------------
GUARANTOR, OVERDRAFT BANK 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, the Security Agent Guarantor,
Overdraft Bank 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, the Security Agent Guarantor, Overdraft Bank
or the Joint Arrangers and based on such documents as it considers
appropriate, its own appraisal of the creditworthiness of the Borrower
and its Subsidiaries and its own independent investigation of the
financial condition, prospects and affairs of the 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,
the Security Agent Guarantor, Overdraft Bank 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 Advance or at any time or times thereafter, other than (in the case
of the Agent) as provided in clause 19.3(a).
19.7 NO RESPONSIBILITY ON JOINT ARRANGERS, SECURITY AGENT, THE SECURITY
-----------------------------------------------------------------------
AGENT GUARANTOR, THE OVERDRAFT BANK OR AGENT FOR ANY OBLIGOR'S
-----------------------------------------------------------------------
PERFORMANCE
-----------
None of the Joint Arrangers, the Security Agent, the Security Agent
Guarantor, the Overdraft Bank 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
94
(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.
19.8 RELIANCE ON DOCUMENTS AND PROFESSIONAL ADVICE
---------------------------------------------
The Joint Arrangers, the Security Agent, the Security Agent Guarantor
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).
19.9 OTHER DEALINGS
--------------
The Joint Arrangers, the Security Agent, the Security Agent Guarantor
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 Borrower or any of its Subsidiaries or associated
companies or any of the Banks as if it were not the Joint Arrangers or
the Agent, as the case may be.
19.10 RIGHTS OF AGENT, OVERDRAFT BANK AND SECURITY AGENT GUARANTOR AS BANK:
-----------------------------------------------------------------------
NO PARTNERSHIP
--------------
With respect to its own Commitment and Contribution (if any) the Agent,
Overdraft Bank and the Security Agent Guarantor 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.
19.11 AMENDMENTS: WAIVERS
-------------------
(a) Subject to clause 19.11(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.
95
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 I 9.2) 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 9.10, (ix)
change clause 17.2, (x) change this clause 19.11 or (B) release
any member of the Group or any of their respective assets 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 12.2(b).
(c) For the purposes of this clause 19.11 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.
19.12 REIMBURSEMENT AND INDEMNITY BY BANKS
------------------------------------
Each Bank shall reimburse the Joint Arrangers, the Overdraft Bank and
the Agent (rateably in accordance with such Bank's Commitment or
Contribution), to the extent that the Joint Arrangers or the Agent is
not reimbursed by the Obligors, for the costs, charges and expenses
incurred by the Arranger, the Overdraft Bank and 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
96
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.
19.13 RETIREMENT OF AGENT
-------------------
(a) The Agent may retire from its appointment as Agent under this
Agreement having given to the Borrower and each of the Banks not
less than 30 days' notice of its intention to do so, provided
that no such retirement shall take effect unless there has been
appointed by the Banks as a successor agent:
(i) a Bank nominated by the Majority Banks with the consent of
the Borrower (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 Borrower (not to be unreasonably withheld or
delayed).
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
the Borrower 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
97
retiring Agent. The retiring Agent shall (at the expense of the
Borrower) provide its successor with copies of such of its
records as its successor reasonably requires to carry out its
functions under this Agreement.
19.14 RETIREMENT OF OVERDRAFT BANK
----------------------------
With the prior consent of the Borrower, not to be unreasonably withheld
or delayed, the Overdraft Bank may resign from its appointment as
Overdraft Bank under the Agreement provided that no such retirement
shall take effect unless a successor Overdraft Bank has been appointed
by the Borrower and has entered into such arrangements as may be
required to become a party to this Agreement as Overdraft Bank and to
assume rights and obligations by the original Overdraft Bank.
19.15 CHANGE OF REFERENCE BANKS
-------------------------
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 6.3 or 15.1, (c) a Reference Bank
novates 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, the
Agent may, acting on the instructions of the Majority Banks, terminate
the appointment of such Reference Bank and after consultation with the
Borrower appoint another Bank to replace such Reference Bank.
19.16 PROMPT DISTRIBUTION OF PROCEEDS
-------------------------------
Moneys received by the Security Agent (whether from a Receiver or
otherwise) 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 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.
98
20. NOTICES AND OTHER MATTERS
-------------------------
20.1 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:
p/a United TeleKabel Holding N.V.
Xxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telefax: 00 31 20 776 6899
Attention: General Counsel
with a copy to:
United Pan-Europe Communications N.V.
Xxxx. Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telefax: 00 31 20 778 9841
Attention: Managing Director of Treasury and General
Counsel
(ii) to the Overdraft Bank and the Security Agent Guarantor at:
Xxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telefax: 0031 10 401 5906
99
Attention: Mr. X.X. Post
(iii) to the Agent and Security Agent at:
MeesPierson N.V.
Xxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telefax: 0031 10 401 5161
Attention: Mr. L.J.M. Van Der Knaap
(iv) to the Joint Arrangers at:
Bank of America International Limited
New Xxxxx Xxxxxx Xxxxx
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X lSH
Telefax: 00 44 181 313 2140
Attention: Xxxxx Xxxxxx
Citibank, N.A.
XX Xxx 0XX
Xxxxxxx Xxxxxx
Xxxx Xxxx
Xxxxxx XX0 0XX
Telefax: 00 44 171 500 2331
Attention: Xxxxxx Xxxxxxx
Deutsche Bank AG London
0 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Telefax: 00 44 171 545 7430
Attention: Xxxxxx Xxxxxxxx/Xxxxxx Xxxxx
MeesPierson N.V.
Xxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telefax: 00 31 10 401 5906
Attention: Mr. X.X. Post
100
Paribas
0 Xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
Telefax: 00 33 1 42 98 0979
Attention: X.xx Paillerets/X.Xxxxxx
(v) 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.
20.2 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.
20.3 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.
20.4 ENGLISH TRANSLATIONS
--------------------
All certificates, instruments and other documents to be delivered under
or supplied in connection with this Agreement 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.
20.5 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.
101
21. GOVERNING LAW AND JURISDICTION
------------------------------
21.1 LAW
---
This Agreement shall be governed by English law.
21.2 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 21.2(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 21.2 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.
21.3 AGENT FOR SERVICE OF PROCESS
----------------------------
Each Obligor irrevocably designates, appoints and empowers HRO
Registrars Limited at present of Xxxxxxx Xxxxx, 00x Xxxxxxxxx Xxxxxx,
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.
102
SCHEDULE 1
----------
PART A - THE BANKS AND THEIR COMMITMENTS
----------------------------------------
------------------------------------ ----------------------------------------- ----------------------------
NAME ADDRESS AND TELEFAX NUMBER COMMITMENT
euro
------------------------------------ ----------------------------------------- ----------------------------
Citibank N.A. 0 Xxxxx Xxx 00,000,000
Xxxxx 000
Xxxxxxxxx
XX 00000
XXX
Telefax: 000 000 000 6094/95
Attention: Xxxxxxx Xxxxxxx
------------------------------------ ----------------------------------------- ----------------------------
Deutsche Bank AG London 6 Bishopsgate 68,000,000
Xxxxxx XX0X 0XX
Telefax: 00 44 171545 4638
Attention: Xxxxx Xxxx/ Xxxxxx Xxxx,
Credit Administration
Department
------------------------------------ ----------------------------------------- ----------------------------
MeesPierson N.V. Xxxxxxxxxx 00 00,000,000
0000 XX Xxxxxxxxx
The Netherlands
Telefax: 00 31 10 401 5161
Attention: Mr. L.J.M. Van der
Knaap
------------------------------------ ----------------------------------------- ----------------------------
NB International Finance B.V. Parnassustoren 68,000,000
Locatellikade
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Telefax: 00 31 20 57 57 141
Attention: Xxxxx Xxxx
------------------------------------ ----------------------------------------- ----------------------------
Paribas 0, Xxx x'Xxxxx 00,000,000
00000 Xxxxx
Xxxxxx
Telefax: 0033 142 98 0979
Attention: D. de Paillerets/
X.Xxxxx
------------------------------------ ----------------------------------------- ----------------------------
103
PART B - ORIGINAL GUARANTORS
----------------------------
----------------------------------------- ------------------------------ --------------------------------
COMPANY COUNTRY OF INCORPORATION ADDRESS
----------------------------------------- ------------------------------ --------------------------------
CAI-Geldermalsen B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Wijchen B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Tiel B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Buren B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Dodewaard B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Neerijnen-West B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Midden-Betuwe B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
Kabelexploitatiemaatschappij CAI-Renkum The Netherlands Xxxxxxxxxxx 00
B.V. Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Wageningen B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Over-Betuwe B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Heteren B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Elst B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
104
----------------------------------------- ------------------------------ --------------------------------
CAI-Bemmel B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
XXX-Xxxxxxx B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Gendt B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Almere B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Lingewaal B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Dronten B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Lelystad B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-Druten B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
CAI-NKM Nijmegen B.V. The Netherlands Xxxxxxxxxxx 00
Velp (6882 GA)
The Netherlands
----------------------------------------- ------------------------------ --------------------------------
105
SCHEDULE 2
----------
FORM OF DRAWDOWN NOTICE
-----------------------
To: MeesPierson N.V.
Xxxxxxxxxx 00
0000 XX Rotterdam
The Netherlands * 19*
euro340,000,000 LOAN FACILITY 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 we wish to draw down a
Revolving Advance of * on *19* for a Term of * months credited to [NAME AND
NUMBER OF ACCOUNT] with [DETAILS OF BANK IN THE NETHERLANDS].
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 Advance which
constitutes a Default; [and]
2 the representations and warranties contained in clauses 11.1 and 11.2
of the Agreement to be repeated in accordance with clause 11.4 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.
We confirm that Annualised Consolidated EBITDA (determined by reference to the
most recently ended Six Month Period in respect of which Quarterly Management
Accounts have been delivered under the Agreement) was [ ].
We further confirm that the ratio of Senior Debt (including for these purposes,
the amount of the Advance the subject of this notice) to Annualised Consolidated
EBITDA (determined as above) was [ ].
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of
N.V. TeleKabel
................................................
106
SCHEDULE 3
----------
DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT TO FIRST ADVANCE
------------------------------------------------------------------------
(a) A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the Borrower, of the constitutive documents of
each Obligor amended as agreed between the Borrower and the Agent.
(b) A copy, certified as true, complete and up-to-date copy by an
authorised officer of the Shareholder, of the constitutive documents of
the Shareholder.
(c) A copy, certified as a true, complete and up-to-date copy by an
authorised officer of UPC, of the constitutive documents of UPC.
(d) A copy, certified as a true copy by an Authorised Officer of the
Borrower, of resolutions of the Supervisory Board of Directors of the
Borrower evidencing approval of this Agreement, the Security Documents
to which it is a party and authorising its appropriate officers to
execute and deliver this Agreement, such Security Documents and to give
all notices and take all other action required by the Borrower under
this Agreement and each such Security Document.
(e) A copy, certified as a true copy by an Authorised Officer of the
Borrower or a director or the secretary of the relevant other Security
Provider or Obligor of resolutions of the Board of Directors of each
Obligor and Security Provider 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 Security Provider thereunder.
(f) Specimen signatures, authenticated by an Authorised Officer of the
Borrower or a director or the secretary of the relevant other Security
Provider or Obligor, of the persons authorised in the resolutions
referred to in paragraphs (d) and (e) above, together with originals of
the powers of attorney granted by the Borrower and any Obligor or
Security Provider in connection with the Finance Documents.
(g) A copy, certified as a true copy by an Authorised Officer of the
Borrower or a director or the secretary of the relevant other Security
Provider or Obligor, of all consents, authorisations, licences and
approvals required by each Obligor and Security Provider to authorise,
or required by the same in connection with, the execution, delivery,
validity, enforceability and admissibility in evidence of this
Agreement and the Security Documents and the performance by the same of
their respective obligations under this Agreement and the Security
Documents.
(h) (i) An opinion of Xxxxxx Xxxx, dated not more than five Banking Days
prior to the first Drawdown Date.
107
(ii) An opinion of Xxxxx Dutilh, legal advisers to the Banks in The
Netherlands, dated not more than five Banking Days prior to the
first Drawdown Date.
(iii) An opinion of Houthoff, legal advisers to the Borrower in The
Netherlands dated not more than five Banking Days prior to the
first Drawdown Date.
(i) A copy, certified as a true copy by an Authorised Officer of the
Borrower of a letter from each agent for receipt of service of process
referred to this Agreement and the Security Deed accepting its
appointment.
(j) The Share Securities, the Account Pledge, the Subordination Deed, the
Receivables Pledges, the Moveables Pledges, the Pledge over Principal
Agreements, the Pledge of Rights against Municipalities, the Pledge of
Rights against Casema, the Pledge of Intercompany Claims, the UPC
Funding Undertaking and the Security Deed duly executed by the Obligors
and Security Providers as party thereto together with all documents,
deeds, notices and certificates required to be delivered pursuant to
the terms thereof.
(k) Original irrevocable power of attorney to the Security Agent
authorising the Security Agent to execute a Mortgage Deed.
(l) The audited financial statements for the financial year ended on 31
December 1997 of the Shareholder and its Subsidiaries.
(m) Quarterly Management Accounts in respect of the Shareholder and its
Subsidiaries in respect of the Quarterly Periods ended 31st December
1998 and Monthly Information in respect of the Shareholder and its
Subsidaries in respect of the month ended 31st January 1999.
(n) The report of A.D. Little, independent consultants to the Banks.
(o) PricewaterhouseCoopers audit on the financial model together with a
reliance letter in respect thereof from PricewaterhouseCoopers to the
Agent.
(p) Certified copies of all insurance policies and cover notes.
(q) Copies, certified by the Authorised Officer of the Borrower to be true,
complete and up to date copies of:
(i) the Principal Agreements; and
(ii) the Necessary Authorisations.
(r) A legal opinion of Holme Xxxxxxx & Xxxx LLP, legal advisers to the
Borrower, confirming that the entry into the Facilities by the Borrower
will not result in any default under the United International Holdings,
Inc. Indenture dated 5th February, 1998.
108
(s) Evidence that a minimum amount of NLG 412,000,000 has been on lent to
the Borrower by the Shareholder by way of Subordinated Shareholder Loan
and/or subscribed in cash and/or assets by the Shareholder for equity
share capital in the Borrower.
(t) Due diligence reports from (i) Houthoff and (ii) Xxxxx Dutilh.
(u) A certificate from NUON as to the outstanding amount of the NUON
Facility as at the anticipated date of drawdown of the first Advance
together with account payment details.
(v) The fees letter referred to in clauses 6 and 8 duly signed by the
Borrower.
(w) A list of receivables for the purposes of the Receivables Pledge.
109
SCHEDULE 4
----------
CALCULATION OF ADDITIONAL COST
------------------------------
1 The Additional Cost for any period shall be calculated by the Agent in
respect of each period for which it falls to be calculated in
accordance with the following formula:
Y001F
----- = per. cent per annum
100
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)
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)
2 For the purposes of calculating the Additional Cost:
(a) 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);
(b) each amount is rounded up to the nearest four decimal places;
and
(c) if the formula produces 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 formula no longer
appropriate, the Agent shall be entitled by notice to the Borrower to
stipulate such other formula as shall be suitable to apply in
substitution for the formula. Any such other formula 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 Xxx 0000;
"BANK OF ENGLAND ACT" means the Bank of Xxxxxxx Xxx 0000;
"FEE BASE" has the meaning given to that term in the Fees Regulations;
and
110
"FEES REGULATIONS" means the Banking Supervision (Fees) Regulations
1998 or the applicable substitute regulations made under the Bank of
England Act as are in force on the date of application of the formula.
111
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 XXX 0000 AND REGULATIONS MADE THEREUNDER.
To: MeesPierson N.V.
Xxxxxxxxxx 00
XX Xxx 000
0000 XX Xxxxxxxxx
Attention: * * 19*
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 N.V. TeleKabel as Borrower (1), the entities listed in part B of
schedule 1 thereto as Original Guarantors (2), Bank of America N.T & S.A.,
Citibank, N.A., Deutsche Bank AG London, MeesPierson N.A. and Paribas 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), MeesPierson
N.V. as Overdraft Bank (5), MeesPierson N.V. as Agent (6), Stichting Security
Agent N.V. TeleKabel as Security Agent (7) and MeesPierson N.V. as Security
Agent Guarantor (8). Terms defined in the Agreement shall have the same meaning
in this Transfer Certificate.
1 [Name of Existing Bank] (the "Existing 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 and the Security Providers) to accept
this Transfer Certificate as being delivered to the Agent pursuant to
and for the purposes of clause 18.4 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)
confirms the assignment and transfer effected by this Transfer
Certificate pursuant to and for the purposes of clause 18.4 of the
Agreement.
112
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 Existing Bank or any statements made by the
Existing Bank in that respect;
(c) that it has made and will continue to make its own appraisal of
the creditworthiness of the Borrower and its Subsidiaries and its
own independent investigation of the financial condition,
prospects and affairs of the Borrower and its Subsidiaries and
has not relied and will not rely on the Existing Bank or any
other Charging Entity or any statement, opinion, forecast or
other representation made by the Existing Bank or any other
Charging Entity in that respect;
(d) accordingly, neither the Existing Bank nor any other Charging
Entity 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
and the other Finance 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 The Transferee hereby undertakes to the Existing Bank and the other
Charging Entities that it will perform in accordance with their terms
113
all those obligations which by the respective terms of the Agreement
and the Security Deed will be assumed by it after acceptance of this
Transfer Certificate by the Agent.
9 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 NOVATED
euro euro
AMOUNT OF PORTION NOVATED
COMMITMENT euro
euro
ADMINISTRATIVE DETAILS OF TRANSFEREE
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
[Existing Bank] [Transferee]
By: By:
Date:
Date:
114
The Agent
By:
on its own behalf
and on behalf of the other parties to the Agreement and the Security Deed
Date:
115
SCHEDULE 6
----------
PART A - COMPLIANCE CERTIFICATE TO BE DELIVERED BY AN AUTHORISED OFFICER OF THE
--------------------------------------------------------------------------------
BORROWER
--------
MeesPierson N.V.
Xxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Mr L. J. M. Van Der Knaap [Date]
Dear Sirs
N.V. TELEKABEL euro340,000,000 CREDIT FACILITIES
LOAN AGREEMENT DATED [ ], 1999 (AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED,
RESTATED, REFINANCED OR REPLACED THE "LOAN AGREEMENT")
We refer to the Loan Agreement and deliver this Certificate in respect of the
Quarterly Period ended [Quarter Day] pursuant to clause 12.1(i)(ii) thereof.
Terms defined in the Loan 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 [*]:
1 Consolidated EBITDA for the Quarterly Period ending on [Quarter Day]
was [ ] [insert calculation details].
2 Consolidated EBITDA before Management Fees for the Quarterly Period
ending on [Quarter Day] was [ ] [insert calculation details].
3 Annualised Consolidated EBITDA calculated by reference to the Six Month
Period ending on [Quarter Day] was [ ] [insert calculation details]
4 Annualised Consolidated EBITDA before Management Fees calculated by
reference to the six month period ending on [Quarter Day] was [insert
calculation details].
5 As at [Quarter Day] Senior Debt was [ ] [insert
calculation details].
6 Senior Debt Cash Interest Charges for the 12 month period ending on
[Quarter Day] were [ ] [insert calculation details].
7 1 Pro-Forma Senior Debt Service for the twelve months commencing [*] is
[*].
--------------------------------------------------------------------------------
1 From and including 1st January 2002 only
116
Based on the above, we confirm that on [Quarter Day]:
1 The ratio of Senior Debt to Annualised Consolidated EBITDA was [o]
[insert calculation details].
2 Annualised Consolidated EBITDA before Management Fees exceeded 85 per
cent. of twice the base case Consolidated EBITDA before Management Fees
for the Six Month Period ending on [*] as shown in the Management Base
Case.
3 The ratio of Annualised Consolidated EBITDA to Senior Debt Cash
Interest Charges was [*] [insert calculation details].
4 The ratio of Annualised Consolidated EBITDA to Pro Forma Senior Debt
Service was [*] [insert calculation details].1
5 Excess Cash Flow was [*]2.
Accordingly, we confirm that [save as disclosed in this certificate] on [Quarter
Day] the Borrower was in compliance with those covenants contained in clause
13.1 inclusive of the Loan Agreement which were applicable as at [Quarter Day].
We confirm that the representations and warranties contained in clause 11.1 of
the Loan Agreement to be repeated in accordance with clause 11.4 of the Loan
Agreement, are true and correct as at the date hereof as if made with reference
to the facts and circumstances existing at such date.
For and on behalf of
N.V. TeleKabel
.............................
Authorised Officer
--------------------------------------------------------------------------------
2 In respect of Quarterly Periods ending on 31st december only, commencing with
the Quarterly Period ending on 31st January 2002.
117
SCHEDULE 6
----------
PART B - COMPLIANCE CERTIFICATE TO BE DELIVERED BY THE AUDITORS OF THE GROUP
----------------------------------------------------------------------------
MeesPierson N.V.
Xxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Mr L. J. M. Van Der Knaap [Date]
Dear Sirs
N.V. TELEKABEL euro340,000,000 CREDIT FACILITIES
LOAN AGREEMENT DATED [ ], 1999 (AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED,
RESTATED, REFINANCED OR REPLACED THE "LOAN AGREEMENT")
We refer to the Loan Agreement and deliver this Certificate in respect of the
Quarterly Period ended [Quarter Day] pursuant to clause 12.1(i)(ii) thereof.
Terms defined in the Loan 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 [*]:
1 Consolidated EBITDA for the Quarterly Period ending on [Quarter Day]
was [ ] [insert calculation details].
2 Consolidated EBITDA before Management Fees for the Quarterly Period
ending on [Quarter Day] was [ ] [insert calculation details].
3 Annualised Consolidated EBITDA calculated by reference to the Six Month
Period ending on [Quarter Day] was [ ] [insert calculation details]
4 Annualised Consolidated EBITDA before Management Fees calculated by
reference to the six month period ending on [Quarter Day] was [insert
calculation details].
5 As at [Quarter Day] Senior Debt was [ ] [insert
calculation details].
6 Senior Debt Cash Interest Charges for the 12 month period ending on
[Quarter Day] were [ ] [insert calculation details].
7 Pro-Forma Senior Debt Service for the twelve months commencing [*] is
[*].
Based on the above, we confirm that on [Quarter Day]:
1 The ratio of Senior Debt to Annualised Consolidated EBITDA was [*]
[insert calculation details].
118
2 Annualised Consolidated EBITDA before Management Fees exceeded 85 per
cent. of twice the base case Consolidated EBITDA before Management Fees
for the Six Month Period ending on [*] as shown in the Management Base
Case.
3 The ratio of Annualised Consolidated EBITDA to Senior Debt Cash
Interest Charges was [*] [insert calculation details].
4 The ratio of Annualised Consolidated EBITDA to Pro Forma Senior Debt
Service was [*] [insert calculation details].1
5 Excess Cash Flow was [*].
Accordingly, we confirm that in our opinion [and save as disclosed in this
Certificate] as at [year end] the Borrower was in compliance with those
covenants contained in clause 13.1 of the Loan Agreement which were applicable
as at [year end].
For and on behalf of
..............................
Auditors
119
SCHEDULE 7
----------
REGISTRATIONS
-------------
-------------------------------------- -------------------------- ---------------------------------
DESCRIPTION REGISTERED NUMBER HELD BY
-------------------------------------- -------------------------- ---------------------------------
Construction or offering a broadcast 900045 N.V. TeleKabel
network ("Aanleggen of aanbieden van (2 Feb 1999)
een omroepnetwerk")
-------------------------------------- -------------------------- ---------------------------------
Construction or offering of leased 900044 N.V. TeleKabel
lines ("Aanleggen of aanbieden van (2 Feb 1999)
huurlijnen")
-------------------------------------- -------------------------- ---------------------------------
Construction or offering of a public 900059 N.V. Telekabel
telecommunication network (12 Feb 1999)
("Aanleggen of aanbieden van een
openbaar telecommunicatienetwerk")
-------------------------------------- -------------------------- ---------------------------------
Offering of a public 900043 United TeleKabel Holding N.V.
telecommunication service (2 Feb 1999)
("Aanbieder van een openbare
telecommunicatiedienst")
-------------------------------------- -------------------------- ---------------------------------
Registration Interconnection 40.012 N.V. TeleKabel
(26 Sept 1997)
-------------------------------------- -------------------------- ---------------------------------
Registration Special Access 40.514 N.V. TeleKabel
(26 Sept 1997)
-------------------------------------- -------------------------- ---------------------------------
120
SCHEDULE 8
----------
PRINCIPAL AGREEMENTS
--------------------
1 Management Services Agreement dated on or about 5th March, 1999, made
between (1) UTH and (2) the Borrower.
121
SCHEDULE 9
----------
PART A - GUARANTOR'S DEED OF ACCESSION
--------------------------------------
To: STICHTING SECURITY AGENT N.V. TELEKABEL as Security Agent
From: [PROPOSED GUARANTOR] and [N.V. TELEKABEL]
Date: [*]
N.V. TELEKABEL [euro]* Revolving Credit Agreement converting to a term loan
dated *, 1999 (as from time to time amended, varied, extended, restated,
refinanced or replaced the "FACILITY AGREEMENT")
We refer to clause [10.16] 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 10.16 of the Facility Agreement and the Security Deed as
a Guarantor in accordance with clause 10.5 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:
[*]
This Deed is intended to be executed as a deed and is governed by English law.
[PROPOSED GUARANTOR] [N.V. TELEKABEL]
[Appropriate execution clause] [Appropriate execution clause]
By: By:
By:
STICHTING SECURITY AGENT N.V. TELEKABEL
[Appropriate execution clause]
By:
122
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) 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 Moveables Pledge, a Pledge over any Principal Agreements, a Pledge of
Intercompany Claims and a Pledge of Rights against Municipalities to
which the Acceding Guarantor is a party duly executed as a deed by the
Acceding Guarantor and such other Security Documents as the Agent may
require;
(d) an original irrevocable power of attorney to the Security Agent
authorising the Security Agent to execute an Immovables Pledge;
(e) a copy of the constitutional documents of each of the Acceding
Guarantor and the Relevant Shareholders;
(f) a copy of a resolution of the board of directors of each of the
Acceding Guarantor and Relevant Shareholders approving the terms of,
and the transactions contemplated by, the Guarantor's Deed of
Accession, the relevant Security Documents (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;
(g) 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;
(h) 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;
(i) a specimen of the signature of each person authorised by a resolution
referred to in paragraph (f) above;
(j) if available, a copy of the latest audited accounts of the Acceding
Guarantor;
(k) 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)
(l) if the Acceding Guarantor and/or a Relevant Shareholder is incorporated
in a jurisdiction outside England, a legal opinion of legal advisers,
acceptable to the Agent, in the jurisdiction of incorporation of the
Acceding Guarantor and/or Relevant Shareholder (as appropriate),
123
addressed to the Security Agent Guarantor on behalf of the
Beneficiaries (as defined in the Security Deed);
(m) 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);
(n) a certificate of an authorised signatory of the Borrower 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;
(o) 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 such other
documents as may be required pursuant to the relevant Security
Documents; and
(p) such other documents as the Agent may reasonably require after taking
the advice of the legal advisers referred to in paragraphs (k)and (l)
above.
124
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
----------------------- ---------------- --------------- ------------- ---------------- ---------------- -------------
Churn Rate (basic
subscribers)
----------------------- ---------------- --------------- ------------- ---------------- ---------------- -------------
125
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
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
126
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
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)
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
127
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)
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
128
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
First Connections
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
Reconnections
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
Disconnections
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
Churn Rate
----------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
129
PROFIT AND LOSS ACCOUNT (NLG `000)
---------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
PROFIT & LOSS MONTLY MONTHLY VARIANCE YTD YTD VARIANCE
ACCCOUNT [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
---------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
130
---------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
Net Income/(Loss)
---------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
131
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
---------------------- ---------------- ---------------- ------------- --------------- ---------------- -------------
132
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
---------------------------------- ------------------ ----------------- -----------------
133
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
------------------------------------ ---------------- ----------------- ----------------
134
SCHEDULE 11
MANAGEMENT BASE CASE
135
THE BORROWER
------------
SIGNED for and on behalf of )
N.V. TELEKABEL ) /S/ XXXX XXXXXXX
by: ) (as attorney)
THE GUARANTORS
--------------
SIGNED for and on behalf of )
CAI-GELDERMALSEN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-WIJCHEN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-TIEL B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-BUREN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-DODEWAARD B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-NEERIJNEN-WEST B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-MIDDEN-BETUWE B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
157
SIGNED for and on behalf of )
KABELEXPLOITATIEMAATSCHEPPIJ )
CAI-RENKUM B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-WAGENINGEN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-OVER-BETUWE B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-HETEREN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-ELST B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-BEMMEL B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
XXX-XXXXXXX B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-GENDT B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-ALMERE B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
158
SIGNED for and on behalf of )
CAI-LINGEWAAL B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-DRONTEN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-LELYSTAD B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-DRUTEN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
CAI-NKM NIJMEGEN B.V. ) /S/ XXXX XXXXXXX
by: ) (as attorney)
THE JOINT ARRANGERS
-------------------
SIGNED for and on behalf of )
BANK OF AMERICA INTERNATIONAL LIMITED ) /S/ XXXXXX XXXXXXX
by: )
SIGNED for and on behalf of )
CITIBANK, N.A. ) /S/ XXXXXX XXXXXXX
by: )
SIGNED for and on behalf of )
DEUTSCHE BANK AG LONDON ) /S/ XXXXXX XXXXXXXX
by: ) XXXXXX XXXXX
SIGNED for and on behalf of )
MEESPIERSON N.V. ) /S/ XXXXX XXXXXX
by: ) (as attorney)
159
SIGNED for and on behalf of )
PARIBAS ) /S/ XXXXX XXXXXX
by: ) (as attorney)
THE OVERDRAFT BANK
------------------
SIGNED for and on behalf of )
MEESPIERSON N.V. ) /S/ XXXXX XXXXXX
by: ) (as attorney)
THE BANKS
---------
SIGNED for and on behalf of )
NB INTERNATIONAL FINANCE B.V. ) /S/ XXXXX XXXXXX
by: )
SIGNED for and on behalf of )
CITIBANK, N.A. ) /S/ XXXXXX XXXXXXX
by: )
SIGNED for and on behalf of )
DEUTSCHE BANK AG LONDON ) /S/ XXXXXX XXXXXXXX
by: ) XXXXXX XXXXX
SIGNED for and on behalf of )
MEESPIERSON N.V. ) /S/ XXXXX XXXXXX
by: ) (as attorney)
SIGNED for and on behalf of )
PARIBAS ) /S/ XXXXX XXXXXX
by: ) (as attorney)
160
THE AGENT
---------
SIGNED for and on behalf of )
MEESPIERSON N.V. ) /S/ XXXXX XXXXXX
by: ) (as attorney)
THE SECURITY AGENT
SIGNED for and on behalf of )
STICHTING SECURITY AGENT N.V. TELEKABEL ) /S/ XXXXX XXXXXX
by: ) (as attorney)
THE SECURITY AGENT GUARANTOR
SIGNED for and on behalf of )
MEESPIERSON N.V. ) /S/ XXXXX XXXXXX
by: ) (as attorney)
161
