SUPPLEMENTAL AGREEMENT DATED 9 MAY, 2006
Exhibit 10.17
CONFORMED COPY
DATED 9 MAY, 2006
BETWEEN
AND
THE ROYAL BANK OF SCOTLAND plc
as Senior Agent and Security Agent
and others
relating to a Priority Agreement
dated 29th March, 2004
(as amended and restated pursuant to a supplemental agreement dated 27th May, 2004 and as further amended and restated pursuant to a supplemental agreement dated 1st July, 2004)
XXXXX & XXXXX LLP
CONTENTS
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1. |
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Interpretation |
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2. |
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Amendments |
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Accession |
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Release of Bridge Agent |
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5. |
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Miscellaneous |
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Governing law |
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Schedules |
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Senior Creditors |
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Hedging Banks |
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3. |
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Investors |
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4. |
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Restated Priority Agreement |
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Signatories |
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THIS AGREEMENT is dated 9 May, 2006
BETWEEN:
(1) KABEL DEUTSCHLAND GmbH (registered in the commercial register (Handelsregister) kept at the local court (Amtsgericht) of Munich under number HRB 145837) (KDG);
(2) KABEL DEUTSCHLAND VERTRIEB & SERVICE GmbH & Co. KG ( registered in the commercial register (Handelsregister) kept at the local court (Amtsgericht) of Munich under number HRA 83902) (Regco);
(3) THE PERSONS named in Schedule 1 (Senior Creditors) as Senior Creditors (the New Senior Creditors);
(4) THE PERSONS named in Schedule 2 (Hedging Banks) as Hedging Banks;
(5) THE PERSONS (if any) named in Schedule 3 (Investors) as Investors;
(6) LAW DEBENTURE TRUST COMPANY OF NEW YORK in its capacity as Notes Trustee (the Notes Trustee);
(7) DEUTSCHE BANK AG LONDON as Bridge Agent; and
(8) THE ROYAL BANK OF SCOTLAND plc as Senior Agent and Security Agent.
BACKGROUND:
(A) This Agreement is supplemental to and amends a priority agreement dated 29th March, 2004 (as amended and restated pursuant to a supplemental agreement dated 27th May, 2004 and as further amended and restated pursuant to a supplemental agreement dated 1st July, 2004) between, among others, KDG and Deutsche Bank AG London (the Original Priority Agreement).
(B) The Parties to this Agreement acknowledge that with effect from the Effective Time (as defined below):
(i) the former security agent, Deutsche Bank AG London has resigned as Security Agent and that The Royal Bank of Scotland plc has assumed the position of the Security Agent;
(ii) all outstandings under the Senior Facilities Agreement (as defined in the Original Priority Agreement) have been discharged in full;
(iii) all Security (as defined in the Original Priority Agreement) has been released and this release will be in full force and effect at the Effective Time; and
(iv) new Security Documents in relation to the Security (as defined in the Amended Priority Agreement) will be entered into by the Effective Time.
(C) The New Senior Creditors have agreed to accede to the Amended Priority Agreement as Senor Creditors.
(D) The Parties to this Agreement agree that the Bridge Debt has been irrevocably paid and discharged in full prior to the date of this Agreement and the Bridge Agent is party to this
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Agreement to acknowledge such agreement and to be released from its obligations under the Amended Priority Agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
(a) In this Agreement:
Amended Priority Agreement means the Original Priority Agreement as amended and restated by this Agreement;
Effective Time means the time of the first Utilisation under the Senior Facilities Agreement; and.
Senior Facilities Agreement means the senior facilities agreement dated 13th March 2006 between, among others, KDG, RegCo, the New Senior Creditors, the Senior Agent and the Security Agent providing for credit facilities aggregating €1,350,000,000.
(b) Capitalised terms defined in the Priority Agreement have, unless expressly defined in this Agreement, the same meaning in this Agreement.
1.2 Construction
The principles of construction set out in the Priority Agreement will have effect as if set out in this Agreement.
2. AMENDMENTS
Subject as set out below, the Priority Agreement will be amended from the Effective Time so that it reads as if it were restated in the form set out in Schedule 4 (Restated Priority Agreement).
3. ACCESSION
(a) Each Senior Creditor agrees that on and from the Effective Time each of them is party to and bound by the terms of the Amended Priority Agreement, having the rights and obligations set out therein in respect of a Senior Creditor.
(b) The address for notices for each New Senior Creditor for the purposes of Clause 24 (Notices) of the Priority Agreement are those communicated to the Senior Agent by the relevant New Senior Creditor prior to the date of this Agreement.
4. RELEASE OF BRIDGE AGENT
The parties to this agreement hereby confirm that the Bridge Discharge Date has occurred and that the Bridge Agent shall cease to have any continuing obligation to any other person under or in connection with the Amended Priority Agreement and shall cease to be a party to the Amended Priority Agreement and the Amended Priority Agreement shall terminate as regards the Bridge Agent.
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5. MISCELLANEOUS
(a) Each of this Agreement and the Amended Priority Agreement, as amended and restated by this Agreement is a Senior Finance Document.
(b) Subject to the terms of this Agreement, the Priority Agreement will remain in full force and effect and, from the Effective Time, the Priority Agreement and this Agreement will be read and construed as one document.
6. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 1
SENIOR CREDITORS
The Royal Bank of Scotland plc
Deutsche Bank AG London Branch
Xxxxxxx Xxxxx Credit Partners L.P.
JPMorgan Chase Bank, N.A.
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SCHEDULE 2
HEDGING BANKS
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx Capital Services Inc.
Société Générale
Cooperatieve Centraleraiffeisen-Boerenleenbank B.A.
The Royal Bank of Scotland plc
ABN AMRO Bank N.V.
Deutsche Bank AG, London
HSBC Bank plc
Calyon
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SCHEDULE 3
INVESTORS
None
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SCHEDULE 4
RESTATED PRIORITY AGREEMENT
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SIGNATORIES
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KDG |
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By: |
XXXX XXXXXXXX |
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XXXXXX XXXXXXXXXX |
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MANAGING DIRECTOR |
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MANAGING DIRECTOR |
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Regco |
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KABEL DEUTSCHLAND VERTRIEB UND SERVICE GMBH & CO. KG |
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By: |
XXXX XXXXXXXX |
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XXXXXX XXXXXXXXXX |
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MANAGING DIRECTOR |
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MANAGING DIRECTOR |
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New Senior Creditors |
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THE ROYAL BANK OF SCOTLAND PLC |
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XXXXXX X. XXXX |
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DEUTSCHE BANK AG LONDON BRANCH |
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By: |
XXXXXXX XXXXX |
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XXXXXX XXXXX |
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MANAGING DIRECTOR |
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VICE PRESIDENT |
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XXXXXXX SACHS CREDIT PARTNERS L.P. |
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By: |
XXX XXXXX |
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MANAGING DIRECTOR |
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JPMORGAN CHASE BANK, N.A. |
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By: |
S XXXXX |
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Hedging Banks |
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XXXXXXX SACHS INTERNATIONAL |
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XXX XXXXX |
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MANAGING DIRECTOR |
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XXXXXX XXXXXXX CAPITAL SERVICES INC. |
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By: |
XXXXXX X. XXXXXX |
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SOCIÉTÉ GÉNÉRALE |
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XXXXXXXX XXXXXXXX |
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CO-HEAD OF FIXED INCOME AND DERICATIVES (DEBT FINANCE) |
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COOPERATIEVE CENTRALERAIFFEISEN-BOERENLEENBANK B.A. |
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XXXXXXXXX XXXXXXXXX |
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MANAGING DIRECTOR |
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SENIOR VICE PRESIDENT |
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THE ROYAL BANK OF SCOTLAND PLC |
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By: |
XXXXXX X.XXXX |
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BNP PARIBAS S.A. as successor to |
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ABN AMRO BANK N.V. |
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XXXXX XXXXXX |
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XXXXXX XXXXXXXXX |
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DEUTSCHE BANK AG, LONDON |
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XXXXXX XXXXXXXX |
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X.X. XXXXXX |
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HSBC BANK PLC |
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By: |
XXXX X. XXXXXXXXX |
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CALYON |
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XXXXX POUISANT |
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X. XXXXXX |
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DIRECTOR |
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ASSOCIATE DIRECTOR |
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Notes Trustee |
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LAW DEBENTURE TRUST COMPANY OF NEW YORK |
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By: |
XXXXXXX X. XXXXX |
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VICE PRESIDENT |
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Bridge Agent |
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DEUTSCHE BANK AG LONDON BRANCH |
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By: |
XXXXXXX XXXXX |
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XXXXXX XXXXX |
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MANAGING DIRECTOR |
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VICE PRESIDENT |
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Senior Agent |
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THE ROYAL BANK OF SCOTLAND plc |
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By: |
XXXXXX X. XXXX |
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Security Agent |
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THE ROYAL BANK OF SCOTLAND plc |
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BY: |
XXXXXX X. XXXX |
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10
