EXHIBIT 10.10
DATED 1998
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MEDIARESEAUX MARNE (1)
As Parent and Original Borrower
and
PARIBAS (2)
As Arranger
and
THE BANKS AND FINANCIAL INSTITUTIONS (3)
REFERRED TO HEREIN
and
PARIBAS (4)
As Facility Agent
and
PARIBAS (5)
As Security Agent
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FACILITY AGREEMENT
FOR A FRF 700,000,000
SECURED CREDIT FACILITY
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Xxxxxx Xxxx
Paris
CONTENTS
Clause Headings Page
1 Interpretation............................................................................. 1
2 The Facility............................................................................... 30
3 Conditions Precedent....................................................................... 32
4 Advances and Overdraft Utilisations........................................................ 34
5 Repayment and Prepayment................................................................... 40
6 Interest................................................................................... 43
7 Fees, Expenses and Stamp Taxes............................................................. 49
8 Payments and Taxes; Accounts............................................................... 51
9 Representations and Warranties............................................................. 56
10 Undertakings............................................................................... 65
11 Commercial and Financial Covenants......................................................... 83
12 Public Offering - Flotation................................................................ 86
13 Default.................................................................................... 86
14 Indemnities................................................................................ 95
15 Unlawfulness and increased costs; mitigation............................................... 96
16 Arranger, Facility Agent and Security Agent................................................ 99
17 Waivers, Remedies Cumulative............................................................... 107
18 Notices.................................................................................... 107
19 Changes to the Parties..................................................................... 108
20 Redistribution............................................................................. 111
21 Confidentiality............................................................................ 113
22 Miscellaneous.............................................................................. 114
23 Governing Law and Jurisdiction............................................................. 114
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SCHEDULES
1 The Banks And Their Commitments............................................................ 115
Part A - Tranche A Banks................................................................... 000
Xxxx X - Xxxxxxx X Banks................................................................... 116
2 Conditions Precedent....................................................................... 117
Part A Conditions Precedent to the First Advance and Overdraft Utilisation................. 117
Part B - Conditions Precedent to Accession of Acceding Borrowers........................... 119
3 Form of Drawdown Notice.................................................................... 120
Part A - RCF Advances requested during the Tranche A Availability Period................... 120
Part B - Form of Rollover Notice........................................................... 123
4 Parent Security Documents.................................................................. 125
5 List of CSA Authorisations................................................................. 126
6 Accounts................................................................................... 127
Part A - Quarterly Management Account...................................................... 127
Part B - Monthly Management Account........................................................ 130
7 Compliance Certificates.................................................................... 132
Part A - Form of Financial Ratio Compliance Certificate to be issued by the President of the
Parent..................................................................................... 132
Part B - Form of Certificate to be issued by the Statutory Auditors of the Parent pursuant to
Clause 10.1(j)(ii) concerning Excess Cash Flow............................................. 135
8A Essential Principles and Documents required for approval of a Proposed Future Franchise
Agreement as a Permitted Future Franchise Agreement........................................ 136
Part A - Essential Principles of Permitted Future Franchise Agreements..................... 136
Part B - Certificate of Compliance with Essential Principles of Permitted Future Franchise
Agreements................................................................................. 139
Part C - Documents required to be delivered to the Facility Agent for approval of a Proposed
Future Franchise Agreement as a Permitted Future Franchise Agreement....................... 140
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8B Essential Principles and Documents required for approval of a Proposed Future Radio and
Television Network Public Domain Occupation Agreement as a Permitted Future Radio and
Television Network Public Domain Occupation Agreement...................................... 142
Part A - Essential Principles of Permitted Future Radio and Television Network Public Domain
Occupation Agreements...................................................................... 142
Part B - Certificate of Compliance with Essential Principles of Permitted Future Radio and
Television Network Public Domain Occupation Franchise Agreements........................... 143
Part C - Documents required to be delivered to the Facility Agent for approval of a Proposed
Future Radio and Television Network Public Domain Occupation Agreement as a Permitted Future
Radio and Television Network Public Domain Occupation Agreement............................ 144
9 Addresses For Notices...................................................................... 146
10 1998 Business Plan......................................................................... 148
11 Interest Rate Protection Strategy.......................................................... 166
12 Acquired Company Negative Pledge Letter.................................................... 168
13 Substitution Certificate................................................................... 169
14 Existing Third-Party Trademarks............................................................ 171
15 Borrower Accession Notice.................................................................. 172
16 Form of Parent Guarantee................................................................... 174
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THIS FACILITY AGREEMEDEGREEST (the "AGREEMENT") is dated , 1998
and made BETWEEN:
(1) MEDIARESEAUX MARNE, a societe anonyme organised under the laws of France
with a share capital of FRF 144,000,000 whose registered office (siege
social) is at 00, xxx Xxxxxx Xxxxxxxx, 00000 Xxxxxx-xxx-Xxxxx, Xxxxxx and
which is registered at the Registry of Commerce and Companies of Xxxxx
under no 400 461 950 (as PARENT and as a INITIAL BORROWER);
(2) PARIBAS, a societe anonyme organised under the laws of France, with a share
capital of FRF 16,012,752,600, whose registered office (siege social) is at
0, xxx x'Xxxxx, 00000 Xxxxx, Xxxxxx, and which is registered at the
Registry of Commerce and Companies of Paris under number 662 047 885, as
arranger of the facility to be provided under this Agreement (the
"ARRANGER");
(3) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (Commitments)
(the "BANKS");
(4) PARIBAS, as Facility Agent for the Banks (in this capacity the "FACILITY
AGENT"); and
(5) PARIBAS, as Security Agent for the Banks (in this capacity, the "SECURITY
AGENT").
IT IS AGREED as follows:
1 INTERPRETATION
--------------
1.1 Purpose
This Agreement sets out the terms and conditions upon and subject to which
all of the Banks agree, according to their several obligations, to make
available to the Borrowers credit facilities in a maximum amount of FRF
700,000,000, divided into two tranches designated Tranche A and Tranche B
respectively, as follows:
(a) TRANCHE A FACILITY: a revolving credit facility in the maximum
principal amount of FRF 680,000,000 (six hundred and eighty million
French Francs) to be made available to the Borrowers by the Tranche A
Banks for the duration of the Tranche A Availability Period (as
defined below), to be converted thereafter into a five (5) year term
loan facility upon the commencement of the Repayment Period (as
defined below) and to be used
(i) to assist in the financing of the on-going capital expenditure
necessary for the construction, installation and operation by any
relevant Borrowers of networks consisting of :
(A) cable radio and television networks as permitted herein;
and/or
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(B) telecommunications networks (including telephone, high-speed
data transmission, Internet access, video, multi-media
services and related activities) in which signals are
broadcast by means of optical fibres, cables or other wired
means (and excluding, for the avoidance of doubt,
radioeletric (Hertzian) telecommunications networks and
satellite telecommunications networks except for
experimental purposes or as otherwise agreed) as permitted
herein,
(ii) to finance costs associated with the authorisation process for
the networks referred to in sub-paragraph (i), subject to the
provisions of Clauses 10.2(p)(ii) and 10.2(q)(ii) hereof,
(iii) to finance any relevant Borrower's working capital requirements
relating to the construction and the operation of the networks
referred to in sub-paragraph (i),
(iv) to reimburse bridge funding of an amount of FRF 6,062,737.53
advanced to the Parent by UPC;
(v) to finance Permitted Acquisitions; and
(vi) to pay the fees and associated costs incurred by the Parent in
relation to the negotiation, preparation and execution of this
Agreement;
(b) TRANCHE B FACILITY: an overdraft facility in the maximum principal
amount of FRF 20,000,000 (twenty million French Francs) to be made
available by the Tranche B Bank to the Parent for the duration of the
Tranche B Availability Period (as defined below), and to be used to
finance working capital requirements of the Parent.
1.2 European Monetary union
(a) Definitions
In this Clause 1.2 and in each other provision of the Facility
Documents to which an express reference is made to this Clause 1.2,
the following terms have the meanings set out below:
"COMMENCEMENT OF THE THIRD STAGE OF EMU" means the commencement of the
third stage of EMU or circumstances which (in the reasonable opinion
of the Majority Banks) have substantially the same effect and result
in substantially the same consequences as the third stage of EMU as
contemplated by the Treaty on European Union;
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union;
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"EMU LEGISLATION" means legislative measures of the European Council
for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise),
including the implementation of the third stage of EMU;
"EURO" means the single currency of Participating Member States of the
European Union;
"EURO UNIT" means the currency unit of the Euro;
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a Euro
Unit) of a Participating Member State, including (without limiting the
generality of the foregoing) the French Franc;
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
legislation ; and
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25th March
1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht
Treaty (which was signed at Maastricht on 1st February 1992 and came
into force on 1st November 1993), as amended from time to time.
(b) Alternative Currencies during the Transition Period
If and to the extent that any EMU Legislation provides that following
the Commencement of the Third Stage of EMU an amount denominated
either in the Euro or in the National Currency Unit of a Participating
Member State and payable within that Participating Member State by
crediting an account of the creditor can be paid by the debtor either
in the Euro Unit or in the National Currency Unit, a Borrower shall be
entitled under the Facility Documents to pay or to repay any such
amount either in the Euro Unit or in such National Currency Unit.
(c) Advances and Overdraft Utilisations during the Transition Period
If any Advance or Overdraft Utilisation made (or to be made) on or
after the Commencement of the Third Stage of EMU would, but for this
provision, be capable of being made either in the Euro or in French
Francs, such Advance or Overdraft Utilisation shall be made in the
Euro.
(d) Banking Days
With effect on and from the Commencement of the Third Stage of EMU,
the definition of Banking Day in Clause 1.3 (Defined Terms) shall be
amended by the addition thereto (at the end) of the following:
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"(or, if payments hereunder are required to be made in the Euro, then
a day on which dealings in the Euro are carried on in such clearing or
settlement system reasonably determined by the Facility Agent to be
suitable for clearing or settlement of the Euro and previously
notified to a Borrower)."
(e) Payments to the Facility Agent
With effect from and on the Commencement of the Third Stage of EMU,
the first sentence of Clause 8.1 shall be amended by the insertion of
the following wording, after the wording "for this purpose" and Clause
8.2 shall be amended by the insertion of the following wording after
the words "may have notified to the Banks":
"; or where such amount is denominated in the Euro and payment thereof
is to be in the Euro, by payment in the Euro and in immediately
available, freely transferable, cleared funds to such account with
such bank in such principal financial centre as the Facility Agent
shall have reasonably specified for this purpose."
(f) Rounding and Other Consequential Changes
With effect on and from the Commencement of the Third Stage of EMU:
(i) without prejudice to Clause 1.2(b) and without prejudice and in
addition to any method of conversion or rounding prescribed by
EMU Legislation, each reference in any of the Facility Documents
to a fixed amount or fixed amounts in a National Currency unit
shall be replaced by a reference to such comparable and
convenient fixed amount or fixed amounts in the Euro Unit as the
Facility Agent may from time to time specify ; and
(ii) save as expressly provided in this Clause 1.2(f), each provision
of the Facility Documents shall be subject to such changes of
construction as the Facility Agent may from time to time
reasonably and in accordance with market practice specify to be
necessary to reflect the changeover in the Euro in Participating
Member States but not so as to change in any material respect the
obligations or liabilities of the parties hereunder without the
prior written consent of such party.
1.3 Defined Terms
In this Agreement, unless the context otherwise requires:
"ACCEDING BORROWER" means any Acquired Company which has become a party to
this Agreement as a Borrower pursuant to Clause 2.5 hereof and "ACCEDING
BORROWERS" shall be construed accordingly;
4
"ACCEDING BORROWER SECURITY DOCUMENTS" means those security documents to be
entered into by any Acceding Borrower, referred to in Clause 10.1(ff)
hereof;
"ACCOUNTS" means at any time and from time to time:
(a) the latest audited annual accounts of the Parent (or, following any
Permitted Share Acquisition, the latest audited annual accounts of
each member of the Group and the latest audited consolidated annual
accounts of the Group);
(b) the latest unaudited half-yearly accounts of the Borrower (or,
following any Permitted Share Acquisition, the latest unaudited half-
yearly accounts of each member of the Group and the latest unaudited
consolidated half-yearly accounts of the Group);
(c) the Quarterly Management Accounts; and
(d) the Monthly Management Reports.
in each case delivered or required to be delivered to the Facility Agent
pursuant to this Agreement, or such of those accounts as applicable;
"ACQUIRED COMPANY" means a company the shares or other ownership interests
of which have been acquired by the Parent as a result of a Permitted Share
Acquisition;
"ACQUIRED COMPANY NEGATIVE PLEDGE LETTER" means a letter addressed to the
Security Agent, on behalf of the Senior Creditors, to be executed by an
Acquired Company, in the form attached hereto as Schedule 12 and "ACQUIRED
COMPANY NEGATIVE PLEDGE LETTERS" shall be construed accordingly;
"ACQUISITION" means the acquisition of any interest whatsoever in the share
capital (or equivalent), the business (fonds de commerce) or equivalent, or
the activity (including, without limitation, any franchise rights) or
assets constituting a separate business of any company or other entity;
"ADVANCE" means each borrowing made or to be made by a Borrower under the
Tranche A Facility, being either an RCF Advance or a Portion of a Term Loan
(as applicable) and "ADVANCES" shall be construed accordingly;
"AFFILIATE" means, in relation to a body corporate, another body corporate
which is controlled by, controls or is under common control with, such body
corporate, and "control" for such purpose has the meaning ascribed to
"controle" in Article 355-1 of the French Company Law;
"AGENT" means the Facility Agent or the Security Agent, as applicable;
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"ANNUAL OPERATING BUDGET" means a budget in respect of the Parent (or,
following any Permitted Share Acquisition, of the Group) for each financial
year containing the annual projected revenues and projected expenditure
required for operation and utilisation of the Cable Broadcasting and
Telecommunications Systems, and a projected profit and loss statement and
sources and uses of funds statement for such financial year;
"ANNUALISED EBITDA" means the EBITDA for the most recently ended financial
Quarterly Period, multiplied by four (4);
"ART" means the Autorite de Regulation des Telecommunications or any
successor entity;
"AUTHORISED OFFICER" means that officer or those officers of any Borrower
authorised to sign any of the Facility Documents or any Compliance
Certificates, Drawdown Notices and any other notices, requests or
confirmations referred to in this Agreement or relating to the Facility
granted pursuant to the Facility Documents;
"AVAILABILITY TEST" shall have the meaning set out in Clause 4.2(b);
"BANK" means each of the banks or other financial institutions listed in
Schedule 1 (The Banks and Their Commitments) and includes their successors
in title, assignees and substitutes, and "BANKS" shall be construed
accordingly;
"BANK DEBT" means, for purposes of calculation of the financial ratios
referred to in Clause 11 (Commercial and Financial Covenants) all debt
which is secured by the Security Documents other than the Interest Rate
Protection Agreements;
"BANKING DAY" means a day (not being a Saturday or Sunday) on which banks
are open for business in London and Paris.
"BENEFICIARIES" means the Arranger, the Facility Agent, the Security Agent,
the Banks and the Interest Rate Protection Banks;
"BORROWER ACCESSION NOTICE" means in respect of a proposed Acceding
Borrower, a notice substantially in the form of Schedule 15 with such
amendments as the Facility Agent may approve or reasonably require duly
completed and signed on behalf of the proposed Acceding Borrower and the
Parent;
"BORROWERS" means the Parent and any Acceding Borrower, and "BORROWER"
shall be construed accordingly;
"BORROWED MONEY" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent (including, for the avoidance of doubt, but without
double counting, any guarantees of such obligations) in respect of (i)
money borrowed or raised and debit balances at banks, (ii) any bond, note,
debenture, security or similar debt instrument, (iii) acceptance or
documentary credit facilities, (iv) receivables
6
sold or discounted (otherwise than on a non-recourse basis), (v) payments
of assets or services acquired which provide for such payments to be
deferred for a period of 180 days or more after the relevant assets or
services were supplied, (vi) principal elements of rental payments under
credit-bail agreements or other finance leases, (vii) guarantees, bonds,
standby letters of credit or other instruments issued in connection with
the performance of contracts to the extent that the same are treated as
borrowings in accordance with the generally accepted principles and
practices used in the preparation of the most recent audited financial
statements of the Parent (or the Group, as the case may be) delivered to
the Facility Agent under this Agreement and (viii) any other transaction
having the commercial effect of a borrowing or raising of money entered
into for the purpose of financing a person's operational or capital
requirements provided that in making any calculation of Borrowed Money
under this Agreement no such obligations shall be taken into account more
than once;
"BUSINESS PLAN" means, as at the date of this Agreement, the business plan
submitted by the Parent to the Facility Agent dated 1998 (the "1998
BUSINESS PLAN"), annexed hereto as Schedule 10 and thereafter the Parent's
business plan and financial model covering the entire life of the Facility
as updated from time to time (including, without limiting the generality of
the foregoing, as such Business Plan is required to be updated pursuant to
Clause 10.1(k) hereof), provided that the format and method of calculation
employed in each such update will be on the same basis as in the 1998
Business Plan unless any change in format or the method of calculation is
first explained in reasonable detail in writing to, and thereafter approved
by, the Facility Agent (such approval by the Facility Agent not to be
unreasonably withheld);
"CABLE BROADCASTING LAW AUTHORISATION" means, as the case may be, a Local
Authority Approval, a CSA Authorisation or any other governmental or
administrative authorisation which is necessary to be obtained under the
Cable Broadcasting Laws;
"CABLE BROADCASTING LAWS" means Law no 86-1067 of 30th September, 1986 (as
amended from time to time) and any regulations implementing such Law,
applicable to the Parent (and, following any Permitted Share Acquisition,
to any other member of the Group), and/or the business carried on by the
Parent (and, following any Permitted Share Acquisition, any other member of
the Group);
"CABLE BROADCASTING AND TELECOMMUNICATIONS LAWS" means the Cable
Broadcasting Laws and the Telecommunications Laws respectively;
"CABLE BROADCASTING AND TELECOMMUNICATIONS LAW AUTHORISATIONS" means the
Cable Broadcasting Law Authorisations and the Telecommunications Law
Authorisations respectively;
7
"CABLE BROADCASTING AND TELECOMMUNICATIONS SYSTEMS" means:
a) the cable radio and television networks constructed or which may be
constructed in the areas covered by the Franchise Agreements and/or
the Radio and Television Public Domain Occupation Agreements; and/or
b) the telecommunications networks (including telephone, high-speed data
transmission, Internet access, video, multi media services and related
activities) in which signals are broadcast by means of optical fibres,
cables or other wired means (and excluding, for the avoidance of
doubt, radioelectric (Hertzian) telecommunications networks and
satellite telecommunications networks except for experimental purposes
or as otherwise agreed) which may be constructed in the areas covered
by the Telephony Licence and the Telecommunications Public Domain
Occupation Agreements;
and operated or run by the Parent (and, following any Permitted Share
Acquisition, any other member of the Group) pursuant to the Cable
Broadcasting and Telecommunications Law Authorisations and includes any
part of any such systems (including all apparatus and equipment of every
description which the Parent (and, following any Permitted Share
Acquisition, any other member of the Group) is authorised to operate or run
under the Cable Broadcasting and Telecommunications Law Authorisations) and
all modifications, substitutions, replacements, renewals and extensions
made thereto;
"CABLE BROADCASTING SYSTEM REVENUES" means all amounts payable to or to the
order of the Parent (and, following any Permitted Share, any other member
of the Group) in connection with cable radio and television network
services operated by the Parent and/or any other member of the Group;
"CABLE BROADCASTING AND TELECOMMUNICATIONS SYSTEM REVENUES" means all
amounts payable to or to the order of the Parent (and, following any
Permitted Share Acquisition, any other member of the Group) in connection
with cable radio and television services and telecommunications services
offered through the Cable Broadcasting and Telecommunications Systems;
"CAHIER DES CHARGES" means the Cahier des Charges appended to the Telephony
Licence;
"CAPITALISATION" means, at any time, the sum of outstanding Bank Debt and
outstanding Shareholders' Contributions;
"COMMITMENT" in respect of each Bank means a Tranche A Commitment and the
Tranche B Commitment, as the case may be;
"CONSTRUCTION AGREEMENTS" means the contracts entered into prior to the
date hereof or which may be entered into from time to time by the Parent
(and, following any Permitted Share Acquisition, any other member of the
Group) with the Construction Companies for the construction of the Cable
Broadcasting and Telecommunications Systems;
8
"CONSTRUCTION COMPANIES" means such companies as are designated from time
to time by the Parent (and, following any Permitted Share Acquisition, any
other member of the Group) for the purposes of cabling (cablage), civil
engineering (genie civil) and other construction services required in
connection with the construction of the Cable Broadcasting and
Telecommunications Systems;
"CONSTRUCTION MASTER RECEIVABLES ASSIGNMENT AGREEMENT" means the
Construction Master Receivables Assignment Agreement concluded or to be
concluded among the Parent, the Senior Creditors and the Security Agent,
relating to the security assignment by the Parent of certain receivables
vis a vis the Construction Companies arising under Construction Agreements
as security for the obligations of the Parent under the Facility Documents;
"CSA" means the Conseil Superieur de l'Audiovisuel or any successor entity;
"CSA AUTHORISATION" means an authorisation granted prior to the date hereof
or which may be granted from time to time after the date hereof pursuant to
the Cable Broadcasting Laws by the CSA, for the operation by the Parent
(and, following any Permitted Share Acquisition, any other member of the
Group) of a cable network for radio and television services;
"DEFAULT" means any Event of Default or any event or circumstance which
with (i) the giving of any notice, (ii) the lapse of any period of time or
(iii) the satisfaction of any other condition (or any combination of (i),
(ii) and (iii) above) will constitute an Event of Default;
"DRAWDOWN DATE" means the date, being a Banking Day, on which an RCF
Advance is or is to be drawn down;
"DRAWDOWN NOTICE" means a notice, substantially in the form of Schedule 3,
Part A (Form of Drawdown Notice), made by any Borrower to the Facility
Agent for an RCF Advance to be made under this Agreement, and indicating
compliance by such Borrower with the conditions set forth in Clause 3.1 or
3.2, as the case may be, issued by an Authorised Officer of such Borrower
(in the case of any Drawdown Notice by a Borrower other than the Parent,
countersigned by an Authorised Officer of the Parent);
"EBITDA" means, with respect to the Parent (or, following any Permitted
Share Acquisition, with respect to the Group as a whole on a consolidated
basis), operating revenues minus all operating expenses, but before
charging (i) interest expenses and commitment fees, (ii) income tax
expenses and (iii) depreciation, amortisation and other non-cash charges,
for the relevant financial period;
"ENCUMBRANCE" means any mortgage, pledge, lien, charge, assignment or
security interest of any kind under French or foreign law securing any
obligation of any person or any other type of preferential arrangement
(including without limitation title transfer and/or retention arrangements
having similar effect);
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"ENVIRONMENTAL CLAIM" means any claim, notice of violation, prosecution,
demand, action, official warning, abatement or other order (conditional or
otherwise), relating to Environmental Matters and any notification or order
requiring compliance with the terms of any Environmental Licence or
Environmental Law;
"ENVIRONMENTAL LAWS" includes all or any laws, statutes, regulations,
treaties, and judgements of any governmental authority or agency or any
regulatory body in any jurisdiction in which the Parent (and, following any
Permitted Share Acquisition, any other member of the Group) is formed or
carries on business or the European Union relating to Environmental Matters
in force and applicable to the Parent (and, following any Permitted Share
Acquisition, any other member of the Group) and/or construction,
installation and operation of Cable Broadcasting and Telecommunications
Systems and/or any other activities from time to time carried on by the
Parent (and, following any Permitted Share Acquisition, any other member of
the Group) and/or the occupation or use of any property owned, leased or
occupied by the Parent (and, following any Permitted Share Acquisition, any
other member of the Group);
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, consent
or other approval required by any Environmental Law (but excluding, for the
avoidance of doubt, planning permission, listed building consent and
building regulation approvals) for the construction, installation and
operation of Cable Broadcasting and Telecommunications Systems;
"ENVIRONMENTAL MATTERS" means: (i) any generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling or manufacture
of any waste or any Relevant Substance; (ii) nuisance, noise, defective
premises, health and safety at work or elsewhere; and (iii) the pollution,
conservation or protection of the environment (both natural and built) or
of man or any living organism supported by the environment (both natural
and built);
"ESSENTIAL PRINCIPLES OF PERMITTED FUTURE FRANCHISE AGREEMENTS" means those
principles set forth in Schedule 8A, Part A hereof and to be included in
any Permitted Future Franchise Agreement;
"ESSENTIAL PRINCIPLES OF PERMITTED FUTURE RADIO AND TELEVISION NETWORK
PUBLIC DOMAIN OCCUPATION AGREEMENTS" means those principles set forth in
Schedule 8B, Part A hereof and to be included either in Permitted Future
Radio and Television Network Public Domain Occupation Agreements and/or in
the Local Authority Direct Authorisation Approvals which give rise to such
Permitted Future Radio and Television Network Public Domain Occupation
Agreements;
"EURO-FRENCH FRANCS" means the lawful currency for the time being of France
which is freely available in the euro-currency market (and not the domestic
French franc market);
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"EVENT OF DEFAULT" means an event specified as such in Clause 13.1 (Events
of Default);
"EXCESS CASH FLOW" means, for any annual accounting period, EBITDA less,
with respect to the Parent (or, following any Permitted Share Acquisition,
with respect to the Group as a whole on a consolidated basis), (i) capital
expenditure, (ii) cash income taxes paid, and (iii) cash interest payments
and mandatory debt repayments, the total of which shall be increased or
decreased to reflect changes in working capital ;
"EXISTING FRANCHISE AGREEMENTS" means the agreements entered into by the
Parent prior to the date hereof with Local Authorities (relevant details of
which are set forth in Schedule 5), pursuant to Local Authority Public
Service Delegation Approvals, for the operation of cable radio and
television networks in the territory over which each such Local Authority
has jurisdiction, in respect of which :
(i) Local Authority Approval has been received by the Parent from the
relevant Local Authority pursuant to the Cable Broadcasting Laws;
and
(ii) any legal period for appeal from the relevant Local Authority
Approval has expired; and
(iii) an assignment by the Parent of its rights thereunder to payment of
any indemnities due to it by the relevant Local Authority has been
effected in favour of the Security Agent (as agent for the Senior
Creditors) by delivery of a bordereau, as set forth in the Local
Authority Master Receivables Assignment Agreement;
"EXISTING SHAREHOLDERS' AGREEMENT" means the agreement between certain
shareholders of the Parent a copy of which has been furnished for
inspection, but a copy of which has not been retained by the Arranger;
"EXISTING THIRD-PARTY TRADEMARKS" means the Third-Party Trademarks
described in Schedule 14;
"EXISTING THIRD-PARTY TRADEMARK PLEDGE AGREEMENT" means the Trademark
Pledge Agreements concluded or to be concluded between Mediareseaux S.A.,
as the owner of the Existing Third-Party Trademarks, the Senior Creditors
and the Security Agent, relating to the pledge by Mediareseaux S.A. of the
Existing Third-Party Trademarks;
"FACILITY DOCUMENTS" means this Agreement, the Fee Letter, the Interest
Rate Protection Agreements, the Security Documents, the Subordination
Agreement, and the Acquired Company Negative Pledge Letters and thereafter,
any other document designated as such by agreement between the Parent and
the Facility Agent;
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"FEE LETTER" means the letter signed on the date hereof between the Parent,
the Arranger and the Facility Agent with respect to arrangement,
underwriting, agency and syndication fees to be payable by the Parent to
the Arranger and the Facility Agent;
"FINAL MATURITY DATE" means 31st December, 2007;
"FINANCIAL INSTRUMENT ACCOUNTS PLEDGE AGREEMENT" means the Agreement for
the Pledge of Accounts of Financial Instruments concluded or to be
concluded between the Pledgors, the Account Holder (as both such terms are
defined therein), the Senior Creditors and the Security Agent;
"FINANCIAL RATIO COMPLIANCE CERTIFICATE" means a certificate substantially
in the form set out in Schedule 7, Part A, in relation to the compliance
(or otherwise) of the Parent (and, following any Permitted Share
Acquisition, of the Group as a whole) with the financial ratios set out in
Clause 11 (Commercial and Financial Covenants);
"FRANCE" means the Republic of France;
"FRANCHISE AGREEMENT" means any of :
(i) the Existing Franchise Agreements; and
(ii) the Permitted Future Franchise Agreements;
"FRF" OR "FRENCH FRANCS" means the lawful currency of France;
"FRENCH GAAP" means the accounting principles and practices generally
accepted in France from time to time;
"FRENCH COMPANY LAW" means Law n degress 66-537 of 24th July 1966, as
amended;
"GENERAL OPERATIONS ACCOUNT" has the meaning ascribed thereto in the Master
Accounts Balance and Cash Pledge Agreement;
"GOING CONCERN PLEDGE AGREEMENT" means the Going Concern Pledge Agreement
concluded or to be concluded between the Parent, the Senior Creditors and
the Security Agent, relating to the pledge by the Parent of its going
concern (fonds de commerce) as security for its obligations under the
Facility Documents;
"GROUP" means the Parent and any Acquired Company;
"INFORMATION MEMORANDUM" means the information memorandum to be prepared in
relation to the Parent and the Facility;
12
"INSURANCE" means any or all of the contracts of insurance which may be
entered into with an Insurance Company insuring the interests of the Parent
(and, following any Permitted Share Acquisition, any other member of the
Group) which the Parent is required from time to time to procure and
maintain in order to meet the Minimum Insurance Requirements;
"INSURANCE COMPANIES" means such insurance company or companies of an
internationally recognised standing with which the Parent (and, following
any Permitted Share Acquisition, any other member of the Group) from time
to time maintains the Insurance;
"INSURANCE DELEGATION AGREEMENT" means the agreements concluded or to be
concluded with respect to the delegation by the Parent of the Insurance
Companies to the Security Agent by way of security for the obligations of
the Parent under the Facility Documents (it being specified that Insurance
covering liability to third parties (responsabilite civile) will not be the
subject of such delegation);
"INSURANCE REPORT" means the insurance report dated 7 July 1998 relating to
the Parent and the Cable Broadcasting and Telecommunications Systems
prepared by Agence Francaise de Courtage et Xxxxx and addressed to the
Arranger;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trade xxxx, service xxxx,
registered design, trade name or copyright required or used to carry on the
business of constructing, installing or operating Cable Broadcasting and
Telecommunications Systems and which is carried on at the relevant time;
"INTERCONNECTION AGREEMENT" means any interconnection agreement signed
between the Parent (and, following any Permitted Share Acquisition, any
other member of the Group) and any telephone or telecommunications
operator, including (but not limited to) France Telecom;
"INTEREST PAYMENT DATE" means the last day of an Interest Period;
"INTEREST PAYMENTS" means payments of interest on the Advances and on the
Overdraft Utilisations made until the Final Maturity Date in accordance
with Clauses 6.1 and 6.7 hereof;
"INTEREST PERIOD" means, in relation to any Advance, each period for
calculation of interest in respect of such Advance ascertained in
accordance with Clause 6;
"INTEREST RATE PROTECTION AGREEMENTS" means any and all interest rate swap
and/or interest rate cap, floor, collar or option transactions and/or other
interest rate hedging or derivative agreements, arrangements or
confirmations entered into by the Parent with any of the Interest Rate
Protection Counterparties in accordance with Clause 10.1(y) and Schedule
11;
"INTEREST RATE PROTECTION BANKS" means Banks (or Subsidiaries or Affiliates
of Banks) which are Interest Rate Protection Counterparties;
13
"INTEREST RATE PROTECTION COUNTERPARTIES" means the Interest Rate
Protection Banks which are parties to the Interest Rate Protection
Agreements provided that, if no Bank is able to enter into an Interest Rate
Protection Agreement at a rate consistent with the rates quoted by leading
banks for a similar risk, such term shall also include any other financial
institution acceptable to the Facility Agent (such acceptance not to be
unreasonably withheld);
"INTEREST RATE PROTECTION MASTER RECEIVABLES ASSIGNMENT AGREEMENT" means
the Interest Rate Protection Master Receivables Assignment Agreement
concluded or to be concluded among the Parent, the Senior Creditors and the
Security Agent, relating to the security assignment by the Parent of
certain receivables vis a vis the Interest Rate Protection Counterparties
arising under the Interest Rate Protection Agreements as security for the
obligations of the Parent under the Facility Documents;
"INTEREST RATE PROTECTION STRATEGY" means the interest rate protection
strategy agreed between the Parent and the Facility Agent pursuant to
Clause 10.1(y), as the same may subsequently be amended from time to time
by agreement between the Parent and the Facility Agent;
"IPO PROCEEDS" means the proceeds (net of equity sale expenses and fees,
and taking deferred proceeds and non-cash proceeds at their fair value) of
any Public Offering;
"LEGAL DUE DILIGENCE REPORT" means the legal due diligence report prepared
relating to the Parent and the Cable Broadcasting and Telecommunications
Systems prepared by Xxxxxx Xxxx, Paris and addressed to the Arranger;
"LIBOR" means:
(a) the rate per annum appearing on Telerate Page 3740 or any other
relevant Telerate Page, as appropriate, or any equivalent successor to
that page (as determined by the Facility Agent) (the "LIBOR TELERATE
SCREEN") at or about 11.00 a.m. (London time) on the Quotation Date
for the offering of deposits in Euro-French Francs in the London
interbank market for a period comparable to the corresponding Interest
Period; or
(b) if no such offered rate appears on Telerate Page 3740, or if the
Facility Agent determines that no rate for a period of comparable
duration to that Interest Period appears on the Telerate Screen at the
relevant time, the arithmetic mean (rounded upwards, if necessary, to
five decimal places) of the per annum rates, as supplied to the
Facility Agent at its request, quoted by each Reference Bank to
leading banks in the London interbank market at or about 11.00 a.m.
(London time) on the Quotation Date for the offering of deposits in
Euro-French Francs for a period comparable to the corresponding
Interest Period.
14
For the purposes of this definition, "TELERATE PAGE 3740" means the display
designated as "Page 3740" on the Telerate Service or such other page as may
replace that page on that service, or such other service as may be
nominated by the British Bankers' Association or such other person as may
from time to time succeed to or replace British Bankers' Association as the
information vendor for the purposes of displaying British Bankers'
Association Interest Settlement Rates for deposits in Euro-French francs;
"LOCAL AUTHORITY" means the authorities or groups of authorities
responsible for establishing or authorising the establishment in their
geographical area, of cable networks for the distribution of radio and
television, as described in the Cable Broadcasting Laws;
"LOCAL AUTHORITY APPROVAL" means the approval (being either a Local
Authority Public Service Delegation Approval and/or a Local Authority
Direct Authorisation Approval) obtained or proposed to be obtained from
time to time after the date hereof, by the Parent (and, following any
Permitted Share Acquisition, any other member of the Group) from a Local
Authority in accordance with all relevant laws, including (without limiting
the generality of the foregoing) the Cable Broadcasting Laws and Law n
degrees 93-122 of 29th January 1993, relating to the construction of a
cable radio and television network by the Parent (and, following any
Permitted Share Acquisition, any other member of the Group) on the
territory of the Local Authority, including relevant decisions of the
relevant prefecture;
"LOCAL AUTHORITY DIRECT AUTHORISATION APPROVAL" means a Local Authority
Approval taking the form of an authorisation (autorisation d'etablissement)
by the Local Authority to the Parent (and, following any Permitted Share
Acquisition, any other member of the Group) to establish a cable radio and
television network for the Parent's (and, following any Permitted Share
Acquisition, any other member of the Group's) own account on the territory
of the Local Authority, and giving rise to the signature of a Radio and
Television Network Public Domain Occupation Agreement between the Parent
(and, following any Permitted Share Acquisition, any other member of the
Group) and the Local Authority;
"LOCAL AUTHORITY MASTER RECEIVABLES ASSIGNMENT AGREEMENT" means the Local
Authority Master Receivables Assignment Agreement concluded or to be
concluded among the Parent, the Senior Creditors and the Security Agent,
relating to the security assignment by the Parent of certain receivables
vis a vis the Local Authorities arising under Franchise Agreements as
security for the obligations of the Parent under the Facility Documents;
"LOCAL AUTHORITY PUBLIC SERVICE DELEGATION APPROVAL" means a Local
Authority Approval taking the form of a public service delegation
(delegation de service public) by the Local Authority to the Parent (and,
following any Permitted Share Acquisition, any other member of the Group)
for the Parent (and, following any Permitted Share Acquisition, any other
member of the Group) to establish a cable radio and television network on
the territory of the
15
Local Authority for the account of the Local Authority, and giving rise to
the signature of a Franchise Agreement between the Parent (and, following
any Permitted Share Acquisition, any other member of the Group) and the
Local Authority;
"MAJORITY BANKS" means (i) at any time a Bank or Banks the aggregate of
whose participations, prior to the making of any Advance, in the
Commitments and thereafter, in the Advances and the Tranche B Commitment,
represent by value more than sixty-six and two-thirds per cent (66 2/3%) of
the aggregate of all those amounts at such time (the "RELEVANT AMOUNTS")
and (ii) more specifically in relation to the enforcement of any Security
Document, a Bank or Banks the aggregate of whose participations represent
by value more than seventy five per cent (75%) of the total of the Relevant
Amounts.
"MARGIN" means two per cent (2.00%) per annum (subject to adjustment under
Clause 6.11 (Margin adjustment));
"MARKETABLE SECURITIES" means any of the following:
(a) marketable obligations of or guaranteed by the French Government or
issued by an agency thereof and backed by the French Government;
(b) certificates of deposit and commercial paper (with a maturity of no
more than ninety (90) days in the case of deposits and twelve (12)
months for commercial paper) issued by any bank which is a Bank, or a
European authorised institution under the Second Council Directive
dated 15th December, 1989 (reference 89-646-CEE), authorised for
accepting such investments, provided that, in the case of an
institution other than a Bank, such institution's short term senior
debt immediately prior to the making of such an investment is not
rated less than A2 by Standard & Poor's Corporation and/or P2 by
Xxxxx'x Investors Services Inc.;
(c) commercial paper issued by bodies corporate (having a separate legal
personality and with limited liability) and which are incorporated in
France with not more than 187 days to maturity, provided that
immediately prior to the making of such an investment, the issuer (or
guarantor) of the commercial paper is rated for short term obligations
not less than A1 by Standard & Poor's Corporation and/or P1 by Xxxxx'x
Investors Services; and
(d) shares in a SICAV (societe d'investissement a capital variable) or a
FCP (fonds commun de placement) where such a SICAV or FCP is subject
to French law and is owned or managed by a bank or financial
institution having a rating of not less than A- (Standard & Poor's) or
A3 (Moody's);
(e) bonds issued by bodies corporate (having a separate legal personality
and with limited liability) and which are incorporated in France,
provided that immediately prior to the making of such an investment,
the issuer (or guarantor) of the bonds is rated for long-term
obligations not less than AA
16
by Standard & Poor's Corporation and/or aa2 by Xxxxx'x Investors
Services; and
(f) shares issued by bodies corporate (having a separate legal personality
and with limited liability) and which are incorporated in France,
provided that immediately prior to the making of such investment, the
issuer (or guarantor) of the shares is rated for long-term obligations
not less than AA by Standard & Poor's Corporation and/or aa2 by
Xxxxx'x Investors Services and provided that the value of such shares
shall not exceed five (5) per cent of the value of such Marketable
Securities at the time of the relevant investment;
"MARKETABLE SECURITIES ACCOUNT" has the meaning ascribed thereto in the
Master Accounts Balance and Cash Pledge Agreement;
"MASTER ACCOUNTS BALANCE AND CASH PLEDGE AGREEMENT" means the Master
Accounts Balance and Cash Pledge Agreement concluded or to be concluded
among the Parent, the Senior Creditors and the Security Agent, relating to
pledges to be granted by the Parent over the Postal Subscription Payment
Account, the General Operations Account, the Marketable Securities Account,
the Overdraft Account and over the cash to be deposited in each Prepayment
Account as security for its obligations under the Facility Documents;
"MATERIAL ADVERSE CIRCUMSTANCE" means any event or circumstance which:
(a) is materially adverse, to:
(i) the ability of the Parent (or, following any Permitted Share
Acquisition, the members of the Group taken as a whole) to
perform its payment or other material obligations under any
Facility Document to which it is party; or
(ii) the business operations of the Parent (or, following any
Permitted Share Acquisition, the members of the Group taken as a
whole); or
(b) results in:
(i) any Facility Document (including, for the avoidance of doubt, any
Security Document) not being valid and legally binding on, and
enforceable substantially in accordance with its terms against,
any party thereto; or
(ii) (in the case of any Security Documents) not providing to the
Security Agent for itself and on behalf of the Beneficiaries
perfected and enforceable security over the assets purported to
be covered by that Security;
17
"MATERIAL CONTRACT" means any Shareholders' Agreement, the Franchise
Agreements, the Public Domain Occupation Agreements, the Construction
Agreements, and any Interconnection Agreement;
"MINIMUM INSURANCE REQUIREMENTS" means the maintenance of insurance cover
of a type (including, following the commencement of telephony services, the
maintenance of business interruption insurance) and level which a prudent
company in the same business as the Parent would effect;
"MONTH" means a period beginning in one calendar month and ending in the
next calendar month on the day numerically corresponding to the day of the
calendar month on 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
next 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 the
same calendar month but if there is no such Banking Day it shall end on the
preceding Banking Day and "months" and "monthly" shall be construed
accordingly;
"MONTHLY MANAGEMENT REPORTS" shall mean the reports to be delivered
pursuant to Clause 10.1(h) in the form and including the matters more fully
described in Schedule 6, Part B;
"OTHER REQUIRED AUTHORISATIONS AND CONTRACTS" means, on any date, any
authorisations, consents or approvals (other than the Cable Broadcasting
and Telecommunications Law Authorisations) required to be obtained by the
Parent (and, following any Permitted Share Acquisition, any other member of
the Group) from any governmental or administrative authority, and any
contracts (other than the Material Contracts) required to be concluded by
the Parent (and, following any Permitted Share Acquisition, any other
member of the Group), in each case if necessary on such date to construct,
maintain and operate the Cable Broadcasting and Telecommunications Systems;
"OVERDRAFT ACCOUNT" means a special overdraft account opened in the name of
the Parent with the Tranche B Bank for the purpose of Overdraft
Utilisations pursuant to the Tranche B Facility;
"OVERDRAFT UTILISATION" means a borrowing by way of overdraft made
available to and used by the Parent under the Tranche B Facility by the
debit by the Parent of the Overdraft Account in accordance with the
provisions of Clause 4.3 hereof.
"PARENT" means Mediareseaux Marne, a societe anonyme organised under the
laws of France with a share capital of FRF 144,000,000 whose registered
office (siege social) is at 00, xxx Xxxxxx Xxxxxxxx, 00000 Xxxxxx-xxx-
Xxxxx, Xxxxxx and which is registered at the Registry of Commerce and
Companies of Xxxxx under no 400 461 950;
"PARENT GUARANTEE" means a guarantee by the Parent of the obligations of
any Acceding Borrower hereunder in the form annexed hereto as Schedule 16;
18
"PARENT SECURITY DOCUMENTS" means each of the security documents identified
in Schedule 4 (Parent Security Documents), any Parent Guarantee required to
be executed by the Parent pursuant to Clause 3.2(a) hereof, any Acquired
Company Financial Instruments Pledge Agreement required to be executed by
the Parent pursuant to Clause 10.1(dd)(i) hereof and any Acquired Company
Subordinated Loan Pledge Agreement required to be executed by the Parent
pursuant to Clause 10.2(f)(i)(B)2) hereof;
"PERIODIC FINANCIAL RATIO TEST DATE" shall mean each Quarter Day unless and
until the following conditions are met:
(i) 25 per cent of the aggregate amounts outstanding under the
Tranche A Facility at the end of the Tranche A Availability
Period shall have been repaid by the Borrowers; and
(ii) the ratio of Bank Debt to Annualised EBITDA when calculated on
both such Quarter Day and on the immediately preceding Quarter
Day is less than 3.0:1; and thereafter (but only for so long as
such conditions continue to be met) shall mean every June 30th
and December 31st;
"PERMITTED ACQUISITION" means any Acquisition by the Parent in France
relating to companies involved in the construction, installation and
operation of
a) cable radio and television networks; and/or
b) telecommunications networks (including telephone, high-speed data
transmission, Internet access, video, multi media services and related
activities) in which signals are broadcast by means of optical fibres,
cables or other wired means (and excluding, for the avoidance of
doubt, radioelectric (Hertzian) telecommunications networks and
satellite telecommunications networks except for experimental purposes
or as otherwise agreed);
provided that such company benefits from a Cable Broadcasting Law
Authorisation and/or a Telecommunications Law Authorisation:
(i) in respect of which the Parent acquires either:
(A) all of the share capital (or equivalent) of such company
except the minimum number of shares which are required to be
held as a matter of law by members of the Board of Directors
or equivalent body of such company or in order to constitute
the legally required minimum number of shareholders (a
"PERMITTED SHARE ACQUISITION"); or
(B) all or a distinct line of the business (fonds de commerce)
or equivalent, or of the activity (including such Cable
Broadcasting Law Authorisation and/or
19
Telecommunications Law Authorisation) or assets of such
company (a "PERMITTED ASSET ACQUISITION"); and
(ii) in respect of which either of the following conditions are
satisfied:
(A) the total purchase price paid or to be paid by the Parent is
not in excess of FRF 50,000,000 (fifty million French
Francs) ; or
(B) the total purchase price paid or to be paid by the Parent is
in excess of FRF 50,000,000 (fifty million French Francs)
and in respect of which the procedure set forth in Clause
10.1(k) hereof has been followed; and
(iii) which would not result in the aggregate purchase price paid by
the Parent for Acquisitions during the term of this Agreement
being in excess of FRF 120,000,000 (one hundred and twenty
million French Francs); and
(iv) the terms of which result in all then outstanding Borrowed Money
of the entity acquired (other than Permitted Borrowings) to be
repaid out of the proceeds of sale or otherwise discharged upon
the consummation of the Acquisition;
(v) the terms of which result any Encumbrance which may then be
outstanding on any of the assets or rights of such company
(other than Permitted Encumbrances) being fully released upon
the consummation of the Acquisition; and
(vi) is made at a time when no Default has occurred which is
continuing or which has not been waived at the time of the
proposed Acquisition;
"PERMITTED ASSET ACQUISITION" has the meaning ascribed thereto in the
definition of "PERMITTED ACQUISITION";
"PERMITTED BORROWINGS" means:
(a) any Borrowed Money arising hereunder or under the Security Documents;
(b) any borrowings which qualify as a Shareholders' Contribution;
(c) any Borrowed Money arising under the Interest Rate Protection
Arrangements concluded pursuant to the Interest Rate Protection
Strategy; and
(d) any finance leasing arrangements and/or vendor financing up to an
aggregate maximum amount of FRF 25,000,000;
20
"PERMITTED DISPOSALS" means :
(a) disposals of assets by the Parent (and, following any Permitted Share
Acquisition, any member of the Group) on bona fide arm's length
commercial terms in the ordinary course of business;
(b) disposals by the Parent (and, following any Permitted Share
Acquisition, any member of the Group) of assets which are redundant,
obsolete or no longer useful in the ordinary course of such Borrower's
business (and in respect of which a certification to such effect is
made by the Parent to the Facility Agent in the Quarterly Management
Account delivered following such disposal);
(c) any disposals by the Parent (and, following any Permitted Share
Acquisition, any member of the Group) approved by the Facility Agent
(acting on the instructions of the Majority Banks); and
(d) on an annual basis, the sale of property or transfer or disposal of
other assets by the Parent (and, following any Permitted Share
Acquisition, any member of the Group) representing in aggregate up to
five (5) per cent of Cable Broadcasting and Telecommunications System
Revenues or (when positive) EBITDA where such disposal is within the
framework of the business of the Parent as exercised on the date
hereof or, in the event that such threshold of 5% is surpassed, then
any other sale of property or transfer or disposal of other assets
either:
(i) approved in advance by the Facility Agent acting upon instruction
of the Majority Banks; or
(ii) in respect of which the net proceeds of the sale are applied
forthwith after such sale to the acquisition of assets of a
similar nature of identical or greater value;
provided that nothing in this definition shall be read as permitting the
disposal of any assets which are the subject of security created by any
Security Document, except in accordance with, and as permitted by, the
terms of the relevant Security Document, without the consent of all the
Banks;
"PERMITTED DISTRIBUTIONS" means a payment of dividends in respect of Shares
of the Parent following the end of the Tranche A Availability Period where
all of the following conditions are satisfied:
(a) no Event of Default has occurred and is continuing unremedied or
unwaived or would occur as a result of such payment; and
(b) the Bank Debt to Annualised EBITDA Ratio referred to in Clause 11.5
has been less than 3.0:1 for the two immediately preceding Quarterly
Periods; and
21
(c) the Borrowers as a whole have fully complied with the obligations in
respect of mandatory prepayments of Excess Cash Flow pursuant to
Clause 5.5 hereof; and
(d) the Borrowers as a whole have repaid at least 25 per cent of the
aggregate amount of the Term Loans;
and further provided that
(a) any such payment of dividends by the Parent are made from excess cash,
not required to meet such Borrower's financial obligations over the
following six (6) month period; and
(b) the payment of any such dividend, when taken together with all such
other payments made by the Parent in any given financial year, does
not exceed the aggregate amount of the principal prepayments or
repayments made under the Facility during the same financial year;
"PERMITTED ENCUMBRANCES" means:
(a) any Encumbrance arising hereunder or under any of the Security
Documents;
(b) any Encumbrance to which the Facility Agent, acting on the
instructions of the Majority Banks, has at any time consented in
writing; and
(c) any Encumbrance arising in the ordinary course of business by
operation of law (including reversionary and repurchase rights in
favour of Local Authorities with respect to cable radio and television
systems arising under the terms of Franchise Agreements or of the
Cable Broadcasting Laws);
"PERMITTED FUTURE FRANCHISE AGREEMENT" has the meaning specified in Clause
10.2(p) (Permitted Future Franchise Agreement);
"PERMITTED FUTURE RADIO AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION
AGREEMENT" has the meaning specified in Clause 10.2(q) (Permitted Future
Radio and Television Network Public Domain Occupation Agreement);
"PERMITTED INVESTMENTS" means:
(a) the placing of cash on deposit in the General Operations Account; and
(b) the investing of cash balances in Marketable Securities which are
deposited in a Marketable Securities Account pledged in favour of the
Security Agent, acting on behalf of the Senior Creditors, pursuant to
the Master Accounts Balance and Cash Pledge Agreement; and
22
(c) any investments approved by the Facility Agent (acting on the
instructions of the Majority Banks);
"PERMITTED MERGER" means any transaction pursuant to which all of the
assets of an Acquired Company are transferred to the Parent and the
Acquired Company is dissolved, consisting of :
(a) a merger (fusion-absorption) of the Acquired Company into the Parent;
or
(b) contribution of the assets (apport d'actif) of the Acquired Company
into the Parent; or
(c) any other method which would result in the transfer of all of the
assets of the Acquired Company to the Parent and the dissolution of
the Acquired Company and which has been approved in advance by the
Facility Agent acting on the instructions of the Majority Banks;
and no later than twenty-five (25) Banking Days following the consummation
of which, the Parent has taken any action required pursuant to the Parent
Security Documents or otherwise reasonably requested by the Security Agent
in order to cause the assets so transferred to the Parent to be made
subject to the security created pursuant to the Parent Security Documents;
"PERMITTED SHARE ACQUISITION" has the meaning ascribed thereto in the
definition of "PERMITTED ACQUISITION";
"PORTION(S) OF A TERM LOAN" means a portion of a Term Loan as divided
and/or consolidated in accordance with Clause 4.2(h), or, failing any such
division or consolidation, the portion of a Term Loan deemed to be
constituted under Clause 4.2(h) ;
"POSTAL SUBSCRIPTION PAYMENT ACCOUNT" has the meaning ascribed thereto in
the Master Accounts Balance and Cash Pledge Agreement;
"POSTAL AND TELECOMMUNICATIONS CODE" means the Code des Postes et
Telecommunications as amended from time to time;
"PREPAYMENT ACCOUNT" has the meaning given to it in Clause 5.5(c)
(Mandatory prepayment);
"PRINCIPAL SHAREHOLDER" means UPC and any other person holding, directly or
indirectly, 33% or more of the Shares of the Parent;
"PRO-FORMA DEBT SERVICE" means at any given time, in respect of the
immediately following twelve (12) month period, the scheduled repayments of
the Tranche A Facility, plus projected interest on such Bank Debt, and the
relevant commitment fees referred to in Clause 7.1(c);
23
"PROGRAMMING AGREEMENTS" means the agreements concluded or which may be
concluded by the Parent (and, following any Permitted Share Acquisition,
any other member of the Group) with the providers of television programmes
for transmission over the Cable Broadcasting and Telecommunications
Systems;
"PROPOSED FUTURE FRANCHISE AGREEMENTS" means any franchise agreements
proposed to be entered into by the Parent (or, following any Permitted
Share Acquisition, by any other member of the Group) following the date
hereof with Local Authorities, pursuant to Local Authority Public Service
Delegation Approvals, for the operation of cable radio and television
networks in the territory over which each such Local Authority has
jurisdiction;
"PROPOSED FUTURE RADIO AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION
AGREEMENTS" means any public domain occupation agreements (conventions
d'occupation du domaine public) proposed to be entered into by the Parent
(or, following any Permitted Share Acquisition, by any other member of the
Group) following the date hereof with Local Authorities, pursuant to Local
Authority Direct Authorisation Approvals, for the occupation by the Parent
(or, following any Permitted Share Acquisition, by any other member of the
Group) of the public domain administered by such Local Authorities in order
for the Parent (or, following any Permitted Share Acquisition, any other
member of the Group) to establish cable radio and television networks in
such public domain;
"PUBLIC DOMAIN OCCUPATION AGREEMENTS" means the Radio and Television
Network Public Domain Occupation Agreements and the Telecommunications
Network Public Domain Occupation Agreements;
"PUBLIC OFFERING" means any rights issue, public placing, listing or other
primary or secondary public offering of shares or securities of the Parent
or of any other member of the Group;
"QUALIFYING BANK" means a person, being a bank or financial institution
(whether incorporated in France or elsewhere), which is eligible to have
payments made to it by any 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 8.11 has been given), or (ii) by
virtue of the fact that no such deduction or withholding is imposed in the
jurisdiction to which a Borrower is subject;
"QUARTER DAYS" means each of 31st March, 30th June, 30th September and 31st
December in any year;
"QUARTERLY MANAGEMENT ACCOUNTS" means the reports to be delivered pursuant
to Clause 10.1(g) in the form and including the matters more fully
described in Schedule 6, Part A;
24
"QUARTERLY PERIOD" means each period of approximately three (3) months
commencing on the day after a Quarter Day and ending on the next following
Quarter Day;
"QUOTATION DATE" means, in relation to an Advance, the date on which
quotations would customarily be provided by leading banks in the London
Interbank Market for deposits in Euro-French Francs for delivery on the
first day of the period of the relevant Advance (being, on the date hereof,
two Banking Days prior to the commencement of the Interest Period in
respect of which the relevant rate is to be fixed;
"RADIO AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION AGREEMENTS" means
the public domain occupation agreements (conventions d'occupation du
domaine public) which may be entered into between the Parent (or, following
any Permitted Share Acquisition, any other member of the Group) and Local
Authorities pursuant to Local Authority Direct Authorisation Approvals, for
the occupation by the Parent (or, following any Permitted Share
Acquisition, by any other member of the Group) of the public domain
administered by such Local Authorities in order for the Parent (or,
following any Permitted Share Acquisition, any other member of the Group)
to establish cable radio and television networks in such public domain;
"RCF ADVANCE" means an Advance made during the Tranche A Availability
Period;
"REFERENCE BANKS" means the principal London offices of Paribas, Societe
Generale and National Westminster Bank or such other banks as may become
reference banks with respect to calculations of LIBOR pursuant to Clause
19.6 (Reference Banks);
"RELEVANT SUBSTANCE" means (i) any radioactive emissions, (ii) electricity
and any electrical or electromagnetic emissions and (iii) 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) which
is capable of causing harm to man or any other living organism supported by
the environment (both natural and built), or damaging the environment (both
natural and built) or public health or welfare;
"REPAYMENT PERIOD" means in respect of the Tranche A Facility, the period
from 1st January 2003 to the Final Maturity Date;
"REPORTS" means the Insurance Report and the Legal Due Diligence Report;
"REQUIRED PORTION OF IPO PROCEEDS" shall have the meaning set forth in
Clause 12.2 hereof;
"ROLLOVER NOTICE" means a notice substantially in the form of Schedule 3,
Part B;
25
"SECURITY DOCUMENTS" means the Parent Security Documents, the Acquired
Company Negative Pledge Letters and the Acceding Borrower Security
Documents;
"SECURITY AND SUBORDINATION DOCUMENTS" means the Security Documents and the
Subordination Agreement;
"SENIOR CREDITORS" has the meaning given to such term in the Subordination
Agreement;
"SHAREHOLDER" means a holder at any time of Shares;
"SHAREHOLDERS' AGREEMENTS" means the Existing Shareholders' Agreement and
any other agreement entered into between any of the shareholders of the
Parent, and "SHAREHOLDERS' AGREEMENT" shall be construed accordingly;
"SHAREHOLDERS' CONTRIBUTIONS" means (i) paid-in equity in respect of
Shares, and (ii) funds made available to the Parent by Shareholders
pursuant to Subordinated Loans (but, for the avoidance of doubt, not
including accrued interest on such Subordinated Loans nor any equity
created by capitalisation of such accrued interest);
"SHARES" means the shares (actions) of the Parent;
"STATUTS" means the Articles of Association (statuts) of the Parent;
"STATUTORY AUDITORS" means the Parent's commissaires aux comptes, being
Xxxxxxx, Frinault & Associes on the date hereof and at any time thereafter
such leading firm of independent and internationally recognised accountants
appointed by the shareholders of the Parent's as its statutory auditors and
notified to the Facility Agent;
"SUBORDINATED CREDITORS" has the meaning given to such term in the
Subordination Agreement;
"SUBORDINATED LOAN" has the meaning given to such term in the Subordination
Agreement;
"SUBORDINATED LOAN PLEDGE AGREEMENT" means a Subordinated Loan Pledge
Agreement entered into between a Subordinated Creditor, the Senior
Creditors and the Security Agent, with respect to any Subordinated Loan, in
the form of Schedule 2 to the Subordination Agreement;
"SUBORDINATION AGREEMENT" means the Subordination Agreement concluded or to
be concluded among the Parent, the Facility Agent, the Security Agent, the
Senior Creditors and the Subordinated Creditors;
"SUBSCRIBER" means a person who has entered into an agreement (which has
not expired or been terminated) (a "SUBSCRIBER AGREEMENT") with the Parent
(or, following any Permitted Share Acquisition, any member of the Group) to
be
26
provided with services by the Parent (or, following any Permitted Share
Acquisition, any member of the Group) through the operation of Cable
Broadcasting and Telecommunications Systems, where such Subscriber
Agreement generates revenue for the Parent or, as the case may be, any
member of the Group, whether through subscription or otherwise;
"SUBSIDIARY" of a person means any company or entity directly or indirectly
controlled by such person, for which purpose "control" means either
ownership of more than 50 per cent of the voting share capital (or
equivalent right of ownership) of such company or entity or power to direct
its policies and management whether by contract or otherwise or the right
to receive more than 50 per cent of any distributions (of whatever nature)
made in respect of the share capital or other ownership interests of such
company or entity;
"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 LAW AUTHORISATION" means, as the case may be, the
Telephony Licence and any other governmental or administrative
authorisation required, if necessary, to be obtained under the
Telecommunications Laws to implement and operate telecommunications
networks and services;
"TELECOMMUNICATIONS LAWS" means the Postal and Telecommunications Code,
French Law No 96-659 of 26th July 1996 (as amended from time to time),
Decree no 96-1175 of 27th December 1996, and all other laws, statutes,
regulations and judgements relating to telecommunications networks and
services;
"TELECOMMUNICATIONS NETWORK PUBLIC DOMAIN OCCUPATION AGREEMENTS" means the
public domain occupation agreements (conventions d'occupation du domaine
public) which may be entered into between the Parent (or, following any
Permitted Share Acquisition, any other member of the Group) and authorities
charged with the concession or administration of the non-road public domain
(autorites concessionnaires ou gestionnaires du domaine public non-routier)
pursuant to Article L. 45-1 of the Postal and Telecommunications Code, for
the occupation by the Parent (or, following any Permitted Share
Acquisition, by any other member of the Group) of such non-road public
domain in order for the Parent (or, following any Permitted Share
Acquisition, any other member of the Group) to establish telecommunications
networks in such non-road public domain;
"TELEPHONY LICENCE" means the decree (arrete) dated 17th June 1998 and the
Cahier des Charges referred to therein, delivered, pursuant to Articles L.
33-1, L 34-1 and L.34-1 of the Postal and Telecommunications Code, by the
Minister responsible for telecommunications (Ministre charge des
telecommunications), following investigation (instruction) by, decision 00-
000 xx 00xx Xxxxx, 0000 and consultation with the relevant Local
Authorities, authorising the Parent to implement and operate (etablir et
exploiter) a telecommunications network open
27
to the public and to provide telephony services to the public in the
departements of Seine-et-Marne, Seine-Saint-Denis and Val de Marne;
"TERM" means, in relation to an RCF Advance, the period for which such RCF
Advance is or is to be made or renewed, as specified in the Drawdown Notice
or Rollover Notice for such RCF Advance, or as otherwise determined in
accordance with the provisions hereof;
"TERM DATE" means, in relation to an RCF Advance, the last day of the Term
of such RCF Advance;
"TERM LOAN" has the meaning set forth in Clause 4.2(g);
"THIRD-PARTY TRADEMARKS" means trademarks owned by any Principal
Shareholder or by any Affiliate or Subsidiary thereof and used by the
Parent in its business;
"TMP" means the rate per annum published daily by the French Stock Exchange
Association (Societe des Bourses Francaises) on the Official List (Cote
Officielle), as the average overnight monetary market rate (taux moyen du
marche monetaire au jour le jour contre pensions) in the Paris interbank
market;
"TOTAL COMMITMENTS" means at any relevant time, the total of the Tranche A
Commitments and the Tranche B Commitment of all the Banks at such time;
"TOTAL FACILITY AMOUNT" means a maximum amount of FRF 700,000,000;
"TRANCHE A AVAILABILITY PERIOD" means the period from the date of this
Agreement up to and including 31st December, 2002 or such earlier date on
which the relevant Commitments have been cancelled in full pursuant to the
terms of this Agreement;
"TRANCHE A BANK" means any of the Banks the name and the address of which
is set forth in Part A of Schedule 1 hereof, and "TRANCHE A BANKS" means
all of such Banks;
"TRANCHE A COMMITMENT" means in relation to a Tranche A Bank the amount set
opposite its name in Part A of Schedule 1 in respect of the Tranche A
Facility, as amended by any relevant term of this Agreement;
"TRANCHE A FACILITY" means that part of the facility to be made available
to the Parent or any Acceding Borrower hereunder, which is referred to
herein as such;
"TRANCHE A FACILITY AMOUNT" means a maximum amount of FRF 680,000,000;
28
"TRANCHE B AVAILABILITY PERIOD" means the period from the date of this
Agreement up to and including the Banking Day preceding 31st December 2007
or such earlier date on which the relevant Commitments (as set out in
Schedule 1 hereto) have been cancelled in full pursuant to the terms of
this Agreement;
"TRANCHE B BANK" means the Bank the name and the address of which is set
forth in Part B of Schedule 1 hereof;
"TRANCHE B COMMITMENT" means in relation to the Tranche B Bank the amount
set opposite its name in Part B of Schedule 1 in respect of the Tranche B
Facility (being the Tranche B Facility Amount) as amended by any relevant
term of this Agreement;
"TRANCHE B FACILITY" means that part of the facility to be made available
to the Parent hereunder, which is referred to herein as such;
"TRANCHE B FACILITY AMOUNT" means a maximum amount (including accrued
interest due on Overdraft Utilisations) of FRF 20,000,000;
"UPC" means United Pan-Europe Communications N.V., a limited liability
company (naamloze vennootschap) organised under the laws of the Netherlands
with a share capital of NLG 54,000,000, having its registered office at
Xxxx. Xxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx; and
"YEAR-TO-DATE EBITDA" means, on any Quarter Date, EBITDA for the financial
year (exercice social) in question accumulated from the beginning of such
financial year to such Quarter Date.
1.4 Construction
In this Agreement, unless the context otherwise requires:
(a) reference 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) reference 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 the terms thereof, 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 Facility Agent, all
of the Banks or the Majority Banks (as the case may be);
29
(c) reference to a "regulation" includes any regulation, rule, directive,
requirement, request or guideline (whether or not having the force of
law) of any agency, authority, central bank or government department
or any self-regulatory or other national or supra-national authority
which is applicable and in effect at the period contemplated;
(d) words importing the plural shall include the singular and vice versa;
(e) reference to a time of day are to Paris 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 agency thereof and that person's
successors in title;
(g) reference to a document "in the agreed form" means in the form of a
Schedule to any Facility Document or otherwise a draft of such
document initialled by way of identification by the Facility Agent and
the Parent;
(h) references to any enactment shall be deemed to include reference to
such enactment as re-enacted, amended or extended;
(i) references to "business" in relation to a Borrower mean the
construction, installation, operation and utilisation of Cable
Broadcasting and Telecommunications Systems, and references to
"ordinary course of business" in relation to a Borrower shall be
similarly construed; and
(j) a reference to an Franchise Agreement, a Public Domain Occupation
Agreement, a Cable Broadcasting Law Authorisation, a
Telecommunications Law Authorisation or an Other Required
Authorisation or Contract, shall be deemed to be a reference to such
contract, permit, or authorisation as amended, supplemented,
superseded or varied from time to time as expressly permitted by and
in accordance with the provisions of Clause 10.2(n) (Amendments to
documents).
1.5 Bank Commitments
For the purpose of the definition of "Majority Banks" in Clause 1.3,
references to the Tranche A Commitment or the Tranche B Commitment of a
Bank shall, if the Total Commitments have, at any relevant time, been
reduced to zero, be deemed to be a reference to the Tranche A Commitment or
the Tranche B Commitment of that Bank immediately prior to such reduction
to zero.
2 THE FACILITY
------------
2.1 Tranche A Facility Amount
The Tranche A Banks, relying upon each of the representations and
warranties in Clause 9 hereof and in the Security and Subordination
Documents, agree:
30
(a) to lend to the Borrowers by way of Advances during the Tranche A
Availability Period the principal sum of up to FRF 680,000,000; and
(b) thereafter to maintain the Term Loans;
upon and subject to the terms of this Agreement.
The obligation of each Tranche A Bank under this Agreement shall, subject
to the terms of this Agreement, be
(a) to contribute that proportion of each RCF Advance which, as at the
Drawdown Date of such RCF Advance, its Tranche A Commitment bears to
the Total Commitments; and
(b) following the end of the Tranche A Availability Period, to maintain
that proportion of the Term Loans which, at the end of the Tranche A
Availability Period, its Tranche A Commitment bears to the Total
Commitments.
2.2 Tranche B Facility Amount
The Tranche B Bank, relying on each of the representations and warranties
in Clause 9 hereof and in the Security and Subordination Documents, agrees
to make available to the Parent in the form of an overdraft on the
Overdraft Account, the Tranche B Facility Amount, upon and subject to the
terms of this Agreement.
2.3 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 Arranger, the Facility Agent, the Security Agent nor any other party of
any of their respective obligations or liabilities under any Facility
Document nor shall the Facility Agent, the Security Agent or the Arranger
be responsible for the obligations of any Bank or other Beneficiary (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.
Notwithstanding the foregoing, the Facility Agent undertakes at any time,
in the event that a financial institution selected by the Facility Agent in
agreement with the Parent to be a Bank hereunder defaults, for any reason
whatsoever, in its obligations to any Borrower, to use its best efforts to
replace as soon as possible such defaulting financial institution by
another financial institution of similar repute, provided that any
additional costs for such Borrower and any costs incurred by the Facility
Agent in the replacement process shall be initially agreed upon between the
Facility Agent and the Parent. Any costs incurred by the Facility Agent in
the replacement process will be reimbursed by the Parent. No such
replacement will result in a waiver by any of the Facility Agent, any
Borrower or any other party hereto against the defaulting Bank.
31
2.4 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 interest of the Facility Agent, the Security Agent, the
Arranger and the Banks are several and the amount due to the Facility Agent
(for its own account), to the Arranger, to the Security Agent and to each
Bank is a separate and independent debt. The Facility Agent, the Security
Agent, the Arranger and each Bank shall have the right to protect and
enforce its rights arising out of this Agreement and it shall not be
necessary for the Facility Agent, the Security Agent, the Arranger or any
Bank (as the case may be) to be joined as an additional party in any
proceedings for this purpose.
2.5 Accession of Additional Borrowers
The Parent may deliver to the Facility Agent at any time during the
Availability Period a Borrower Accession Notice duly completed and executed
by the Parent and the proposed Acceding Borrower. Upon, but not before the
Facility Agent notifying the Banks of receipt of the Borrower Accession
Notice and the documents referred to in Clause 3.2(a) hereof, the proposed
Acceding Borrower shall become an Acceding Borrower.
3 CONDITIONS PRECEDENT
--------------------
3.1 Conditions precedent to first Advance under the Tranche A Facility and to
first Overdraft Utilisation under the Tranche B Facility
The obligations of each Tranche A Bank to make its Tranche A Commitment
available to the Parent and the obligation of the Tranche B Bank to make
the Tranche B Commitment available shall be subject to the following
conditions:
(a) the Facility Agent shall have received the documents and evidence
specified in Schedule 2 Part A not later than three (3) Banking Days
before the earlier of the following two dates:
(i) the day on which the Drawdown Notice in respect of the first RCF
Advance is given; and
(ii) the day on which the first Overdraft Utilisation occurs;
(b) completion of an economic and commercial due diligence process
satisfactory to the Facility Agent, including such presentations by
the Parent to the Banks as are deemed necessary by the Facility Agent;
(c) satisfaction of the Facility Agent with the terms of the Material
Contracts concluded prior to the date hereof;
(d) satisfaction of the Facility Agent with the Interest Rate Protection
Strategy;
32
(e) satisfaction of the Facility Agent with the terms of the Insurance;
(f) the opening by the Parent of the General Operations Account and the
Overdraft Account and the creation of a pledge thereon in accordance
with the provisions of the Master Accounts Balance and Cash Pledge
Agreement;
(g) payment by the Parent of the amounts payable by it to the Facility
Agent in respect of fees and commissions pursuant to Clause 7.1 (a)
and (b) of this Agreement, at the times and in the amounts stated in
the Fee Letter.
3.2 Conditions precedent to first Advance to any Acceding Borrower
(a) At least three (3) Banking Days prior to any Acceding Borrower being
able to request an initial Advance under the Tranche A Facility, the
Parent shall procure that it or such Acceding Borrower delivers to the
Facility Agent in respect of such Acceding Borrower, the documents and
evidence specified in Schedule 2 Part B hereto.
(b) Upon confirmation by the Facility Agent to the Banks that it has
received all the documents referred to in Clause 3.2(a) above, the
relevant Acceding Borrower shall be entitled to request Advances under
the Tranche A Facility, as if it had been a party to this Agreement at
the date hereof. Delivery of a Borrower Accession Notice executed by
the Parent and the relevant Acceding Borrower shall constitute
confirmation by the Parent and such relevant Acceding Borrower that
the representations and warranties set out in Clause 9 hereof and to
be made by them on the date of the signing of the Borrower Accession
Notice are correct, as if made with reference to the facts and
circumstances then existing.
3.3 Conditions precedent to each RCF Advance under the Tranche A Facility and
each Overdraft Utilisation
The obligation of each Bank to contribute to any RCF Advance under the
Tranche A Facility and the obligation of the Tranche B Bank to permit any
Overdraft Utilisation is subject to the further conditions that at the time
of the giving of a Drawdown Notice (or Rollover Notice, as applicable) for,
and at the time of the making of, such RCF Advance, or at the time the
Overdraft Utilisation is effected, as the case may be:
(a) the representations and warranties deemed to be made pursuant to
Clause 9.2, being true and correct as of each such time as if each was
made with respect to the facts and circumstances existing at such
time;
(b) no Default shall have occurred and be continuing which has not been
remedied or expressly waived or would result from the making of such
RCF Advance or such Overdraft Utilisation; and
(c) no Material Adverse Circumstance has occurred and is continuing.
33
3.4 Waiver of conditions precedent
The conditions specified in this Clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in part
and with or without conditions by the Facility Agent acting (i) on the
instructions of all of the Banks in respect of the first RCF Advance under
the Tranche A Facility, (ii) on the instructions of the Majority Banks in
respect of subsequent RCF Advances under the Tranche A Facility, and (iii)
on the instructions of the Tranche B Bank in respect of Overdraft
Utilisations without prejudicing the right of the Facility Agent acting on
such instructions to require fulfilment of such conditions in whole or in
part in respect of any other Advance.
4 ADVANCES AND OVERDRAFT UTILISATIONS
-----------------------------------
4.1 RCF Advances, Drawdown Notice and Rollover Notice
(a) Subject to the terms and conditions of this Agreement (including,
without limiting the generality of the foregoing, the satisfaction of
the conditions precedent described in Clauses 3.1, 3.2 and 3.3 and the
Availability Test and compliance with the covenants described in
Clauses 10 and 11), each Tranche A Bank severally agrees that it will
(i) during the Tranche A Availability Period, join in making RCF
Advances to any Borrower until the end of such Tranche A Availability
Period and (ii) at the end of the Tranche A Availability Period,
continue in ma king available Portions of the Term Loans to the
Borrowers.
(b) RCF Advances will be made to any Borrower following receipt by the
Facility Agent from such Borrower of a Drawdown Notice or a Rollover
Notice signed by an Authorised Officer of the relevant Borrower (and,
in the case of Drawdown Notices or Rollover Notices on behalf of a
Borrower other than the Parent, countersigned by an Authorised Officer
of the Parent) not later than 10:00 a.m. on the fifth Banking Day
before the proposed Drawdown Date, provided however, that where the
Parent requests an RCF Advance for the purpose of a Permitted
Acquisition in respect of which the Parent is to pay a purchase price
in excess of FRF 50,000,000, then such Drawdown Notice must be
received by the Facility Agent from the Parent not later than the
fifteenth Banking Day prior to the proposed Drawdown Date and in such
case the Drawdown Notice shall be accompanied by the information set
forth in Clause 10.1(k) hereof, and provided further that in the event
that an initial Drawdown Notice is effected by the Parent on the date
of signature hereof for purposes other than a Permitted Acquisition,
and subject to satisfaction of the conditions precedent referred to in
Clause 3.1 hereof, the Drawdown Date in respect of such initial
Drawdown Notice will be the second Business Day following the date of
signature hereof. Each such Drawdown Notice shall be effective on
actual receipt by the Facility Agent, and once given, shall, subject
as provided in Clause 6.13, be irrevocable. No Drawdown Notice may be
given in respect of an amount
34
which is the subje ct of a notice received by the Facility Agent under
Clause 4.2(i).
(c) Upon receipt of a Drawdown Notice or a Rollover Notice complying
with the terms of this Agreement, the Facility Agent shall promptly
notify each Tranche A Bank of the request for an RCF Advance, the date
on which such RCF Advance is to be made, the Term thereof and the
amount of each Bank's participation in such RCF Advance. On the date
for the making of such RCF Advance, each of the Tranche A Banks shall
make available to the Facility Agent its portion of such RCF Advance.
(d) Subject to the terms and conditions of this Agreement, if a Borrower
wishes to draw an RCF Advance during the Tranche A Availability Period
on any day (the "RELEVANT DAY") of an amount of not more than the
amount of a RCF Advance which is due to be repaid on the Relevant Day
in accordance with Clause 5.1, such Borrower shall not be obliged to
serve a Drawdown Notice in relation to such new RCF Advance but may
serve a Rollover Notice signed by an Authorised Officer of the
relevant Borrower (and, in the case of Rollover Notices on behalf of a
Borrower other than the Parent, countersigned by an Authorised Officer
of the Parent) specifying the amount of the new RCF Advance and the
Term thereof. A Rollover Notice shall be effective on actual receipt
by the Facility Agent (which must be no later than 10:00 a.m. on the
fifth Banking Day before the Relevant Day) and, once given shall,
subject as provided in Clause 6.13 be irrevocable. No Rollover Notice
may be given in respect of an amount which is the subject of a notice
received by the Facility Agent under Clause 4.2(i).
4.2 Tranche A Facility; Terms and Amount of RCF Advances; Conversion to Term
Loans; Division and Consolidation of Term Loans into Portions of the Term
Loans
(a) RCF Advances may be made only on Banking Days during the Tranche A
Availability Period and an RCF Advance may be borrowed, at the
relevant Borrower's discretion, 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 (but not less than one month), in any such case ending no
later than the last day of the Tranche A Availability Period.
(b) During the Tranche A Availability Period, the aggregate maximum amount
available at any time for Advances to be made pursuant to Drawdown
Notices (the "AVAILABLE AMOUNT") shall (subject to the following
paragraph) be limited to the result obtained by application of an
availability test (the "AVAILABILITY TEST"), consisting of multiplying
the Revenue Generating Units from time to time by the relevant
Availability Factor (but not greater than the maximum aggregate
Tranche A Commitment), where:
35
(i) "REVENUE GENERATING UNITS" means the Actual Recurring Revenue
at the end of the most recent month as set forth in the most
recent Monthly Management Reports delivered to the Facility
Agent pursuant to Clause 10.1(h), divided by FRF 150 ;
(ii) "ACTUAL RECURRING REVENUE" means the aggregate of all Cable
Broadcasting and Telecommunications System Revenues (excluding
non-recurring installation and connection revenues) for the most
recent month as set forth in the most recent Monthly Management
Reports; and
(iii) "AVAILABILITY FACTOR" shall mean the following figures in each
of the months during the Tranche A Availability Period:
1998 1999 2000 2001 2002
----- ----- ----- ----- -----
------------------------------------------------------------------------------------------
January 8,500 6,500 4,750 4,150
------------------------------------------------------------------------------------------
February 8,500 6,400 4,700 4,050
------------------------------------------------------------------------------------------
March 8,500 6,150 4,650 4,000
------------------------------------------------------------------------------------------
April 8,500 6,100 4,650 3,900
------------------------------------------------------------------------------------------
May 8,500 5,950 4,600 3,800
------------------------------------------------------------------------------------------
June 9,000 8,500 5,750 4,600 3,750
------------------------------------------------------------------------------------------
July 9,000 8,400 5,600 4,500 3,650
------------------------------------------------------------------------------------------
August 9,000 8,250 5,450 4,450 3,600
------------------------------------------------------------------------------------------
September 9,000 8,000 5,250 4,400 3,500
------------------------------------------------------------------------------------------
October 8,500 7,600 5,100 4,350 3,450
------------------------------------------------------------------------------------------
November 8,500 7,150 4,950 4,300 3,350
------------------------------------------------------------------------------------------
December 8,500 6,650 4,750 4,250 3,300
------------------------------------------------------------------------------------------
For the avoidance of doubt, it is expressly agreed that in the event
that an RCF Advance requested pursuant to a Drawdown Notice satisfies
the Availability Test, then (i) a Rollover Notice may subsequently be
given during the Tranche A Availability Period with respect to such
RCF Advance without the relevant Borrower being required independently
to satisfy the Availability Test with respect to the amount of the RCF
Advance which is the subject of such Rollover Notice; and (ii) one or
more additional Drawdown Requests may be made by a Borrower on the
36
date of such Rollover Notice provided that the aggregate amount to be
made available to such Borrower pursuant to such Rollover Notice and
such RCF Advance(s) satisfies the Availability Test on such date.
(c) Without prejudice to the foregoing provisions, Drawdown Notices in
respect of RCF Advances to be used for the purposes of financing of a
proposed Acquisition shall:
(i) not be permitted unless:
(A) the Acquisition qualifies as a Permitted Acquisition; and
(B) the Parent has, where relevant, provided together with such
Drawdown Notice the information referred to in Clause
10.1(k) hereof with respect to such proposed Acquisition;
(ii) specifically state that the RCF Advance is being requested for
the purposes of the proposed Acquisition; and
(III) be honoured only if the Parent would, immediately following the
consummation of the proposed Acquisition, satisfy the Availability Test on the
basis of the consolidated revenues of the Parent and the entity or business
which would result from the proposed Acquisition calculated in accordance with
French GAAP;
(d) Number and amount of RCF Advances
Each RCF Advance during the Tranche A Availability Period shall be of
(i) a minimum principal amount of FRF 20,000,000 or any larger sum
which is an integral multiple of FRF 5,000,000 or (ii) the remaining
amount available under the Tranche A Facility (as applicable).
(e) Number of RCF Advances Outstanding
No RCF Advance may be drawn if, as a result, there would be more than
ten (10) RCF Advances then outstanding.
(f) Termination of Tranche A Commitments
Any part of the Tranche A Commitments in respect of RCF Advances
remaining undrawn and uncancelled at the end of the Tranche A
Availability Period shall thereupon be automatically reduced to zero.
(g) Conversion to Term Loans
On the last day of the Tranche A Availability Period, all outstanding
RCF Advances made to each Borrower shall be deemed to be repaid and
the revolving credit facility then made available shall convert into a
term
37
loan to such Borrower (each a "TERM LOAN" and collectively the
"TERM LOANS") the duration of which shall be the Repayment Period and
the aggregate principal amount of each of which shall be the aggregate
amount of all RCF Advances outstanding at such time.
(h) Division and Consolidation of Term Loans into Portions of the Term
Loans
Following the conversion referred to in Clause 4.2(g), any Borrower
may by notice received by the Facility Agent no later than 10:00 a.m.
on the fifth Business Day before the beginning of each Interest Period
in respect of its Term Loan made to it specify that such Term Loan
shall be divided into more than one Portion of its Term Loan, and
thereafter may, by notice received by the Facility Agent no later than
10:00 a.m. on the fifth Business Day before the beginning of each
Interest Period in respect of a Portion of its Term Loan specify that
such Portion of its Term Loan shall be divided into more than one
Portion of its Term Loan, or consolidate with any other Portion of its
Term Loan in respect of which the then current Interest Period ends on
the same day as the current Interest Period in respect of such Portion
of its Term Loan. In the event that no such division or consolidation
is requested, then the total amount of its Term Loan shall be deemed
to constitute one single Portion of such Term Loan. No more than five
(5) Portions of all of the Term Loans may be outstanding in respect of
all of the Term Loans; each such Portion of a Term Loan shall be
either (i) FRF 20,000,000 or (ii) any larger sum which is an integral
multiple of FRF 5,000,000 or (iii) (if the balance of a Term Loan is
less than FRF 5,000,000) the balance of such Term Loan.
(i) Cancellation of Tranche A Commitments
The Parent may at any time during the Tranche A Availability Period
only, by notice to the Facility Agent (effective only on actual
receipt, such notice to include an affirmation by an Authorised
Officer of the Parent that the viability of the then-existing Cable
Broadcasting and Telecommunications Systems will not be threatened
thereby), cancel without premium or penalty with effect from a date
not less than ten (10) Banking Days after the receipt by the Facility
Agent of such notice, the whole or any part (being either FRF
10,000,000 or an integral multiple thereof, or the remainder of the
Facility) of the total of the Tranche A Commitments of all of the
Tranche A Banks which is not then outstanding or requested in a
Drawdown Notice or Rollover Notice and in respect of which an RCF
Advance has not then been made. Any such notice of cancellation, once
given, shall be irrevocable and upon such cancellation taking effect
the Tranche A Commitment of each of the Banks shall be reduced
proportionally. No amounts so cancelled may subsequently be
reinstated.
38
4.3 Overdraft Utilisations under the Tranche B Facility
(a) Subject to the terms and conditions of this Agreement (including,
without limiting the generality of the foregoing, the satisfaction by
the Parent of the conditions precedent described in Clauses 3.1 and
3.3 and compliance with the covenants described in Clauses 10 and 11,
but, for the avoidance of doubt, without the Parent being required to
satisfy the Availability Test described in Clause 4.2(b), the Tranche
B Bank agrees with the Parent that it will during the Tranche B
Availability Period make the Tranche B Facility Amount available to
the Parent for Overdraft Utilisations in the manner described in the
following paragraph.
(b) Overdraft Utilisations will be effected by debit from the Overdraft
Account. Overdraft Utilisations may (subject to the previous
paragraph) be effected by the Parent at any time during the Tranche B
Availability Period and without the Parent being required to give
prior notification thereof to the Facility Agent, by the drawing of
cheques on the Overdraft Account or the making of bank transfers from
the Overdraft Account, in all cases up to an aggregate amount equal to
the Tranche B Facility Amount.
(c) The Parent may at any time during the Tranche B Availability Period
only, by notice to the Facility Agent (effective only on actual
receipt, such notice to include an affirmation by an Authorised
Officer of the Parent that the viability of the Cable Broadcasting and
Telecommunications Systems will not be threatened thereby), cancel
without premium or penalty with effect from a date not less than ten
(10) Banking Days after the receipt by the Facility Agent of such
notice, the whole or any part (being either FRF 2,000,000 or an
integral multiple thereof, or the remainder of the Facility) of the
total of the Tranche B Commitment which is not then the subject of an
Overdraft Utilisation. Any such notice of cancellation, once given,
shall be irrevocable and upon such cancellation taking effect the
Tranche B Commitment shall be reduced proportionally. No amounts so
cancelled may subsequently be reinstated.
4.4 Acceding Borrower Drawings
If, following a Permitted Acquisition, an Acquired Company becomes an
Acceding Borrower under this Agreement, then the Parent shall not be
permitted to on-lend any funds drawn down by the Parent under the Tranche A
Facility to such Acceding Borrower without the consent of the Majority
Banks. The Parent shall ensure that such funds as any Acceding Borrower may
require for the purposes set out in Clause 1.1 hereof shall be drawn down
by such Acceding Borrower direct from the Banks in accordance with the
terms of this Agreement; provided however, that an Acceding Borrower shall
not be entitled to request an Advance in accordance with the terms hereof,
if the Group failed and in continuing to fail to meet any of the financial
ratios set in Clause 11 hereof or the Available Xxxx.
00
0 REPAYMENT AND PREPAYMENT
------------------------
5.1 Repayment of RCF Advances
A Borrower shall repay each RCF Advance in respect of which the Term Date
is prior to the last day of the Tranche A Availability Period, on such Term
Date. If an RCF Advance (the "NEW RCF ADVANCE") is to be made to any
Borrower on a day on which another RCF Advance made to the same Borrower
(the "MATURING RCF 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 and
Clause 4.2 shall have been satisfied in relation to the new RCF Advance and
a Rollover Notice has been given to the Facility Agent as provided in
Clause 4.1(d), (i) the maturing RCF Advance shall be deemed to have been
repaid on its Term Date either in whole (if the new RCF Advance is equal to
or greater than the maturing RCF Advance) or in part (if the new RCF
Advance is less than the maturing RCF Advance) and the Borrower in question
shall only be obliged to repay the principal amount by which the maturing
RCF Advance exceeds the new RCF Advance and (ii) to the extent that the
maturing RCF Advance is so deemed to have been repaid, the principal amount
of the new RCF Advance to be made on such date shall be deemed to have been
credited to the account of such Borrower by the Facility 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 such Borrower pursuant to Clause
4.1(c) a principal amount (if any) equal to the amount by which the new RCF
Advance exceeds the maturing RCF Advance
5.2 Repayment of Term Loans
The Parent, and as the case may be, any Acceding Borrower shall procure
that, subject to the application of Clauses 5.4 and 5.5, each of the Term
Loans shall be repaid in quarterly instalments (the "REPAYMENT
INSTALMENTS") on each of the Quarter Days commencing on the Quarter Day
falling on 31st March, 2003, in accordance with the following amortisation
schedule:
YEAR REPAYMENTS EXPRESSED AS A
PERCENTAGE OF THE TERM LOANS
2003 10.00%
2004 20.00%
2005 25.00%
2006 25.00%
2007 20.00%
5.3 Repayment of Overdraft Utilisation
The Parent agrees to repay to the Tranche B Bank in full any amounts
outstanding (including principal and interest accrued thereon) in respect
of Overdraft Utilisations on the Final Maturity Date.
40
5.4 Voluntary Prepayment of Term Loans during the Repayment Period
Subject to the receipt by the Facility Agent of irrevocable written notice
given by any Borrower at least ten (10) Banking Days prior thereto, any
Borrower or Borrowers may prepay, during the Repayment Period, any Portion
of such Borrower's Term Loan in whole or in part (being FRF 10,000,000 or
any larger sum which is an integral multiple of FRF 10,000,000) on the
following Interest Payment Date corresponding to such Portion of such
Borrower's Term Loan, without premium or penalty. Upon any notice of
prepayment being given, the available amounts outstanding in relation to
such Portion of the Term Loan in question shall be automatically cancelled.
5.5 Mandatory Prepayment
(a) Subject to paragraph (c) below, during the Repayment Period, on the
first Interest Payment Date following the delivery of the annual
Accounts to the Facility Agent in accordance with Clause 10.1(f) (the
"NEXT INTEREST PAYMENT DATE"), the Parent shall prepay or cause to be
prepaid an aggregate amount (the "EXCESS CASH FLOW MANDATORY
PREPAYMENT") of the Term Loans equal to fifty per cent (50%) of the
Excess Cash Flow for the financial year to which such annual Accounts
relate.
(b) Subject to paragraph (c) below, in the event of a Public Offering, an
amount equivalent to the Required Portion of the IPO Proceeds shall be
applied by the relevant Borrower on the Next Interest Payment Date, to
prepay outstanding Advances, in accordance with the provisions of
Clause 12.2 hereof ("IPO MANDATORY PREPAYMENT").
(c) If no Interest Payment Date falls within the first two months
following delivery of any annual Accounts referred to in paragraph (a)
above to the Facility Agent (in the case of an Excess Cash Flow
Mandatory Prepayment) or following the consummation of the Public
Offering (in the event of the IPO Mandatory Prepayment referred to in
paragraph (b) above), then the Parent and/or Acceding Borrower shall,
at its option, either:
(i) pay an amount equal to the Excess Cash Flow Mandatory Prepayment
or the IPO Mandatory Prepayment, as the case may be, plus any
amount required in accordance with the provisions of Clause
14.2(c) below, to the Facility Agent no later than five (5)
Banking Days following the delivery of such annual Accounts or
the consummation of the Public Offering, as the case may be, for
application in accordance with the provisions of paragraphs (a)
or (b) of this Clause 5.5; or
(ii) pay, no later than five (5) Banking Days following the date upon
which any such annual Accounts are published or the consummation
of the Public Offering, as the case may be, an amount equal to
the Excess Cash Flow Mandatory Prepayment or
41
the IPO Mandatory Prepayment, as the case may be, into a blocked
account to be opened at such time for such purposes by the Parent
or by the relevant Acceding Borrower with the Facility Agent,
which amounts shall be pledged in favour of the Security Agent in
accordance with the provisions of the Master Accounts Balance and
Cash Pledge Agreement or a similar agreement entered into by the
Acceding Borrower pursuant to Clause 10.1(ff) hereof (each such
account being referred to as a "PREPAYMENT ACCOUNT").
(d) The principal amount standing to the balance of any Prepayment Account
shall be applied in full in prepayment of outstanding Advances on the
Next Interest Payment Date.
(e) Each Prepayment Account shall bear interest at a commercial rate
agreed between the Facility Agent and the Parent or by the relevant
Acceding Borrower. Interest on such Prepayment Account shall accrue to
and, subject to the other terms of this Agreement, be payable to, the
Parent or by the relevant Acceding Borrower on the Next Interest
Payment Date and shall not form part of the Excess Cash Flow.
(f) The Parent or the relevant Acceding Borrower shall have no right to
withdraw or deal in any monies standing to the credit of any
Prepayment Account (other than interest accruing on such account in
accordance with paragraph (e) above) nor to assign, transfer or
otherwise dispose of the debt represented thereby without the prior
written consent of the Facility Agent .
5.6 Adjustment of Repayment Instalments
The amount of each voluntary prepayment of a Portion of a Borrower's Term
Loan made under Clause 5.4 (Voluntary prepayment during the Repayment
Period) and the amount of each mandatory prepayment made under any of
Clauses 5.5 (Mandatory Prepayment) or 13 (Default) shall be applied against
future Repayment Instalments specified in this Clause 5 as follows:
(a) in the case of all such prepayments other than IPO Mandatory
Prepayments, in inverse order of their maturity; and
(b) in the case of IPO Mandatory Prepayments, pro rata to the remaining
Repayment Instalments.
5.7 Prepayment due to Taxation or Increased Costs
If circumstances arise which would, or would with a giving of notice,
result in:
(a) any additional amounts becoming payable under Clause 8.7
(Grossing-up for Taxes); or
42
(b) any increased cost becoming payable under Clause 15.2 (Increased
Costs),
then, without prejudice to the obligations of each of the Borrowers under
those Clauses, any Borrower may prepay the whole (but not part) of the then
outstanding amount of the relevant Bank's participation in the then
outstanding Advances to such Borrower or (in the case of the Tranche B
Bank) the Parent may, if affected by such circumstances, prepay the whole
(but not part) of the Overdraft Utilisations made by it together with all
interest and other charges accrued on those participations and all other
amounts payable by it to such Beneficiary under the Facility Documents, on
giving not less than ten (10) Banking Days' prior written notice to such
Bank (through the Facility Agent).
5.8 General provisions relating to prepayment
(a) Any notice of prepayment given under this Agreement shall be
irrevocable, shall state the amount of the intended prepayment and the
date on which it will be made and the relevant Borrower shall be bound
to prepay in accordance with such notice. The Facility Agent shall
notify the Banks promptly of receipt of any such notice.
(b) Amounts repaid or prepaid in respect of any Portion of a Term Loan
under any provision of this Agreement may not be reborrowed hereunder.
(c) Any prepayment of any Advance under any provision of this Agreement
shall be made together with interest and fees and commission, if any,
accrued on the amount prepaid and any amount which becomes due and
payable as a result of that prepayment pursuant to Clause 14
(Indemnities).
6 INTEREST
--------
6.1 Interest on the Advances
Each Borrower shall pay interest on each Advance made to it under the
Tranche A Facility, in respect of each Interest Period relating thereto, on
each Interest Payment Date at the rate per annum determined by the Facility
Agent to be the aggregate of
(a) the Margin; and
(b) LIBOR for such Interest Period.
In the event that an Interest Period is longer than six (6) months, then
the relevant Borrower will pay interest accrued during the first six (6)
months of such Interest Period at the end of such six (6) months and shall
pay interest accrued on the remaining portion of the Interest Period on the
last day of such Interest Period.
43
6.2 Interest Periods
The Interest Period in relation to each RCF Advance shall be of a duration
equal to the Term of such RCF Advance. Interest Periods in respect of a
Portion of the Term Loans shall be of a duration determined in accordance
with Clauses 6.3 and 6.4.
6.3 Selection of Interest Periods for a Portion of the Term Loans
The relevant Borrower may by notice received by the Facility Agent not
later than 11:00 a.m. on the fifth Banking Day before the beginning of each
Interest Period in respect of a Portion of its Term Loan 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 of not less than one month.
6.4 Determination of Interest Periods for a Portion of a Term Loan
Every Interest Period in respect of a Portion of a Term Loan shall be of
the duration specified by the relevant Borrower pursuant to Clause 6.3 but
so that:
(a) the initial Interest Period in respect of a Portion of a Term Loan
will commence on the last day of the Tranche A Availability Period and
each subsequent Interest Period in respect of a Portion of a Term Loan
will commence forthwith upon the expiration of the previous Interest
Period in respect of such Portion of the Term Loans;
(b) Interest Periods in respect of an aggregate amount of a Portion of a
Term Loan at least equal to the amount of all Term Loans to be repaid
on any repayment date as referred to in Clause 5.2 shall end on such
date; and
(c) if the relevant Borrower fails to specify the duration of an Interest
Period in accordance with the provisions of Clause 6.3 such Interest
Period shall, subject to this Clause 6.4, have a duration of three (3)
months.
6.5 Restrictions on selection
(a) The relevant Borrower shall select the duration of Interest Periods
pursuant to Clauses 6.2 and 6.3 so as to ensure that no Advance shall
have an Interest Period expiring after the Final Maturity Date.
(b) If it appears to the Facility Agent that the requirements of
paragraph (a) above will not be met by the relevant Borrower's
selection of any Interest Period, the Facility Agent shall promptly so
inform such Borrower which shall promptly choose a period which
conforms with such requirements, or, at such Borrower's request, the
Facility Agent shall, on behalf of and after consultation with such
Borrower, select a different duration for such Interest Period.
44
6.6 Notification
The Facility Agent will notify the relevant Banks, the Security Agent and
the relevant Borrower of the duration of each Interest Period relating to
each Advance promptly after ascertaining the same.
6.7 Interest on Overdraft Utilisations
The Parent agrees to pay interest on each Overdraft Utilisation at such
rate determined by the Facility Agent to be the aggregate of (a) TMP and
(b) the Margin. Such interest will be calculated by reference to the
aggregate of cleared debit balances from time to time on the Overdraft
Account and will accrue from day to day on the basis of actual days elapsed
and a year of 360 days and will be debited to the Overdraft Account on the
last Banking Day for each Quarter Period.
6.8 Default interest
If any Borrower fails to pay any amount payable by it under this Agreement
on the due date therefor, such Borrower, on demand by the Facility Agent
from time to time, shall pay interest on a daily basis on such overdue
amount from the due date up to the date of actual payment, both before and
after judgement, at a rate determined by the Facility Agent to be one per
cent (1 %) per annum above the aggregate of (i) the Margin then applicable;
and (ii) TMP. Default interest payable by any Borrower under this
Agreement will be compounded annually. The payment of default interest will
not constitute a waiver of any right or remedy by any Beneficiary under the
Facility Documents.
6.9 Calculations
All interest and other payments of an annual nature under this Agreement or
to be calculated on an annual basis 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.
6.10 Determination conclusive; notification
Each determination of a rate of interest by the Facility Agent under this
Agreement shall be promptly notified to the relevant Borrower and the
relevant Bank, together with a statement in reasonable detail of the manner
in which such determination was made, and shall, in the absence of manifest
error, be conclusive.
6.11 Margin adjustment
(a) The Margin will be two per cent (2.00%) per annum unless adjusted in
accordance with this Clause 6.11.
45
(b) The Parent will deliver to the Facility Agent (by no later than the
date it delivers to the Facility Agent the Quarterly Management
Accounts referred to in Clause 10.1(g)) a notice (a "MARGIN NOTICE")
specifying the ratio of Bank Debt to Annualised EBITDA as calculated
in accordance with Clause 11.5 (Bank Debt to Annualised EBITDA) as at
the date on which the Quarterly Management Accounts were prepared for
the purposes of calculating whether the Margin is to be adjusted in
accordance with this Clause 6.11.
(c) The Margin will be adjusted (upwards or downwards) to the percentage
rates per annum specified in Column 1 below set opposite the range
into which the ratio of Bank Debt to Annualised EBITDA, as shown in
the Margin Notice, falls :
COLUMN 1 COLUMN 2
MARGIN BANK DEBT
to Annualised EBITDA
2.00 per cent greater than 4.5:1
1.75 per cent 4.5:1 or less
1.50 per cent 4.0:1 or less
1.25 per cent 3.5:1 or less
1.00 per cent 3.0:1 or less
0.75 per cent 2.5:1 or less
(d) The adjustment (if any) specified in paragraph (c) above will
(following submission by the relevant Borrower to the Facility Agent
of Quarterly Management Accounts) (the date of each such submission
being referred to as the "MARGIN TEST DATE") apply as the Margin with
respect to each Interest Period commencing after such Margin Test
Date, unless and until a subsequent adjustment to the Margin is
effected pursuant to the provisions of this Clause 6.11.
(e) If any Borrower fails to deliver a Margin Notice in accordance with
paragraph (b) above, then the Margin with effect from the last date
permitted for delivery of the relevant accounts under Clause 10.1(g)
will be as stated in paragraph (a) above.
6.12 Effective Global Rate ("Taux effectif global")
Each of the Borrowers acknowledges and agrees that the effective global
rate (taux effectif global) (the "EFFECTIVE GLOBAL RATE") of the facilities
to be made available to any Borrower hereunder cannot be calculated for the
entire duration thereof by reason, in particular, of the variability of the
applicable rate, and therefore that only the use of the facilities will
permit the determination of the Effective Global Rate and that the
Effective Global Rate provided hereafter is therefore purely illustrative
and shall not bind the parties in the future.
46
For the purpose of application of articles L 313-1, R 313-1 and R 313-2 of
the Consumer Code (Code de la Consommation), it is specified for indicative
purposes that :
(a) for a full utilisation of the Tranche A Facility during the Tranche A
Availability Period, and assuming that no Mandatory Prepayment will
occur according to Clause 5.5, for an Interest Period of three months,
taking into account the rate of three-month LIBOR on 25th June, 1998
of 3.5625% per year, the Effective Global Rate of the Tranche A
Facility would, at such date, be 6.01% per year and the periodic
interest rate (taux de periode) would be 1.5035%; and
(b) for a full utilisation of the Tranche B Facility during the Tranche B
Availability Period, and taking into account the rate of TMP on 25th
June 1998 of 3.375% per year, the Effective Global Rate of the Tranche
B Facility would, at such date, be 5.73% per year and the periodic
interest rate (taux de periode) would be 0.0157%.
Such indicative rates include LIBOR or TMP, as the case may be, plus the
Margin (calculated on the assumption that no adjustment will be made
pursuant to Clause 6.11 hereof) as well as any fees, costs and other
expenses due by any Borrower in respect of this Agreement which the
Consumer Code, as interpreted on the date hereof, require to be taken into
account.
6.13 Market disruption; non-availability
(a) If and whenever, at any time prior to the commencement of any Interest
Period in relation to the Tranche A Facility:
(i) the Facility Agent shall have determined (which determination
shall, in the absence of manifest error, be conclusive), that
adequate and fair means do not exist for ascertaining LIBOR
during such Interest Period; or
(ii) none or only one of the Relevant Reference Banks supplies the
Facility Agent with a quotation for calculating LIBOR; or
(iii) the Facility Agent shall have received notification from Banks
with participations in Advances aggregating not less than
forty-five per cent (45%) of the Advances that deposits in
Euro-French Francs are not available to such Banks in the
London Interbank Market in the ordinary course of business in
sufficient amounts to fund their contributions to the relevant
Advance for such Interest Period or that LIBOR does not
accurately reflect the cost to such Banks of obtaining such
deposits;
the Facility Agent shall forthwith give notice (a "TRANCHE A
DETERMINATION NOTICE") thereof to the relevant Borrowers and to each
of the Tranche A Banks. A Tranche A Determination Notice shall
contain
47
particulars of the relevant circumstances giving rise to its issue.
After the giving of any Tranche A Determination Notice the undrawn
amount of the Tranche A Commitments of all of the Banks shall not be
borrowed until notice to the contrary is given to the relevant
Borrowers by the Facility Agent (which notice shall be given promptly
after any substitute basis has been determined pursuant to Clause
6.13(b) hereof).
(b) Within five Banking Days after any Tranche A Determination Notice has
been given by the Facility Agent under Clause 6.13(a), (i) if a
Borrower so requires, each Borrower affected thereby and the Facility
Agent and each affected Bank shall enter into negotiations for a
period of not more than 10 days with a view to agreeing a substitute
basis for determining the rates of interest from time to time
applicable to the relevant Advances thereafter and any such substitute
basis that is agreed shall take effect in accordance with its terms;
and (ii) if no substitute basis has been agreed between the relevant
Borrowers, the Facility Agent and each affected Bank pursuant to sub-
paragraph (i) above, each affected Bank shall certify a substitute
basis for funding its contribution to the relevant Advance. Such
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 to such Bank equivalent
to the Margin for the relevant Interest Period determined in
accordance with Clause 6.11, and shall apply with respect to Interest
Periods beginning thereafter.
Each substitute basis so agreed in accordance with (i) or, failing
such agreement, certified in accordance with (ii) shall be binding
upon the relevant Borrowers, the Facility Agent and (in the case of
(i)) each Bank and (in the case of (ii)) each affected Bank and shall
take effect in accordance with its terms from the date on which
substituted basis is agreed, until such time, if any, as the
conditions giving rise to the issuance of a Tranche A Determination
Notice are no longer in effect, in which case the Facility Agent shall
so inform the relevant Borrowers and the interest rate shall be
determined in accordance with the provisions of Clauses 6.1 through
6.11 hereof.
(c) If and when, at any time during the Tranche B Availability Period, the
Facility Agent shall have determined (which determination shall, in
the absence of manifest error, be conclusive), that adequate and fair
means do not exist for ascertaining TMP, then the Facility Agent shall
forthwith give notice (a "TRANCHE B DETERMINATION NOTICE") thereof to
the Parent and to the Tranche B Bank. A Tranche B Determination Notice
shall contain particulars of the relevant circumstances giving rise to
its issue. After the giving of any Tranche B Determination Notice the
amount of the Tranche B Commitment shall not be the subject of any
Overdraft Utilisation until notice to the contrary is given to the
Parent by the Facility Agent (which notice shall be given promptly
after any substitute basis has been determined pursuant to Clause
6.13(d) hereof).
48
(d) Within five Banking Days after any Tranche B Determination Notice has
been given by the Facility Agent under Clause 6.13(c), (i) if the
Parent so requires, the Parent and the Facility Agent and the Tranche
B Bank shall enter into negotiations for a period of not more than 10
days with a view to agreeing a substitute basis for determining the
rates of interest from time to time applicable to the Overdraft
Utilisations and any such substitute basis that is agreed shall take
effect in accordance with its terms; and (ii) if no substitute basis
has been agreed between the Parent, the Facility Agent and the Tranche
B Bank pursuant to sub-paragraph (i) above, the Tranche B Bank shall
certify a substitute basis for funding its contribution to the
Overdraft Utilisations. Such 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 to the Tranche B Bank equivalent to the Margin
determined in accordance with Clause 6.11, and shall apply with
respect to the remaining duration of the Tranche B Availability
Period.
Each substitute basis so agreed in accordance with (i) or, failing
such agreement, certified in accordance with (ii) shall be binding
upon the Parent, the Facility Agent and the Tranche B Bank and shall
take effect in accordance with its terms from the date on which
substituted basis is agreed, until such time, if any, as the
conditions giving rise to the issuance of a Tranche B Determination
Notice are no longer in effect, in which case the Facility Agent shall
so inform the Parent and the interest rate shall be determined in
accordance with the provisions of Clause 6.7 hereof.
6.14 Reference Bank quotations
-------------------------
If any Reference Bank is unable or otherwise fails to furnish a quotation
for the purpose of calculating LIBOR, the interest rate applicable to the
Advances shall be determined, subject to Clause 6.13 (Market Disruption),
on the basis of the quotations furnished by the remaining Reference Banks.
7 FEES, EXPENSES AND STAMP TAXES
------------------------------
7.1 Fees
The Parent agrees to pay to the Facility Agent, whether or not the Parent
is entitled to request Advances or has made an Overdraft Utilisation
pursuant to Clause 4 hereof:
49
(a) Arrangement and Underwriting Fees
---------------------------------
an arrangement and underwriting fee at the time and in the amount set
forth in the Fee Letter;
(b) Agency fee
----------
an agency fee at the time and in the amount set forth in the Fee
Letter; and
(c) Commitment fee
--------------
(i) during the Tranche A Availability Period, a commitment fee
payable in arrears on each Quarter Day following the date of
signature of this Agreement and on the last day of the Tranche A
Availability Period, for the account of each Bank and computed
from the date of this Agreement (calculated on the basis of the
actual number of days elapsed in a 360 day year) at the rate of
0.40 per cent per annum on the daily undrawn and uncancelled
amount of such Bank's Tranche A Commitment; and
(ii) during the Tranche B Availability Period, a commitment fee
payable in arrears on each Quarter Day following the date of
signature of this Agreement and on the last of the Tranche B
Availability Period, for the account of the Facility Agent and
computed from the date of this Agreement (calculated on the
basis of the actual number of days elapsed in a 360 day year) at
the rate of 0.40 per cent per annum on the daily unused and
uncancelled amount of the Facility Agent's Tranche B Commitment.
7.2 Expenses
The Parent agrees to pay to the Facility Agent within thirty (30) days from
the date on which the Facility Agent makes demand on the Parent for payment
of the same accompanied by reasonable supporting documentation:
(a) all reasonable out-of-pocket expenses (including legal and other
professional expenses) incurred by the Arranger in connection with the
negotiation, preparation (including reasonable due diligence),
syndication and execution of this Agreement and the Security and
Subordination Documents together with interest at the rate referred to
in Clause 6.8 from the date falling 30 days after the date of demand
for payment of such expenses to the date of payment (as well after as
before judgement), subject however, to the provisions of the Fee
Letter; and
(b) all reasonable out-of-pocket expenses (including legal and other
professional expenses) incurred by the Facility Agent, the Arranger
and the Security Agent in connection with the negotiation, preparation
(including reasonable due diligence) and execution of any amendment or
extension of
50
or the granting of any waiver or consent under this Agreement or any
Security Document or the Subordination Agreement together with
interest at the rate referred to in Clause 6.8 from the date falling
30 days after the date of demand for payment of such expenses to the
date of payment (as well after as before judgement); and
(c) all reasonable out-of-pocket expenses (including legal, travel and
other professional expenses) incurred by the Facility Agent, the
Arranger, the Security Agent and the Banks or any of them in
connection with the enforcement of, or preservation of any rights
under, this Agreement or any Security Document or the Subordination
Agreement, or otherwise in respect of moneys owing under this
Agreement that are unpaid on the due date thereof, together with
interest at the rate referred to in Clause 6.8 from the date falling
30 days after the date of demand for payment of such expenses to the
date of payment (as well after as before judgement).
7.3 Value Added Tax
All fees and expenses payable pursuant to this Clause 7 shall be paid
together with Value Added Tax (if any) properly chargeable thereon.
7.4 Stamp and other duties
The Parent agrees (i) to pay all stamp, documentary, registration or other
like duties or Taxes (including any duties or Taxes payable by the
Beneficiaries) imposed on or in connection with the entry into, performance
or enforcement against the Parent (or following a Permitted Acquisition,
against any other members of the Group) of any of the Facility Documents
and (ii) to indemnify the Beneficiaries against any liability arising by
reason of any delay or omission by the Parent to pay such stamp or other
duties or Taxes.
8 PAYMENTS AND TAXES; ACCOUNTS
----------------------------
8.1 No set-off or counterclaim; distribution to the Banks
All payments to be made by any Borrower under this Agreement shall be made
in full, without any set-off (other than as provided for in Clause 5.1
hereof) or counterclaim whatsoever and free and clear of any deductions or
withholdings, in French Francs on the due date to the account of the
Facility Agent at such bank in Paris as the Facility Agent may from time to
time specify for this purpose. Save as otherwise expressly provided by
this Agreement such payments made in respect of the Tranche A Facility
shall be for the account of the Banks, and the Facility Agent shall
forthwith distribute such payments in like funds as are received by the
Facility Agent to the Banks rateably in accordance with their Commitments
(it being specified that no such Borrower shall incur any liability in
respect of such distribution by the Facility Agent). Any such payments made
in respect of the Tranche B Facility shall be credited directly to the
Overdraft Account.
51
8.2 Payments by the Tranche A Banks
All sums to be advanced by the Tranche A Banks to any Borrower under this
Agreement shall be remitted in French Francs on the relevant date to the
account of the Facility Agent at such bank in Paris as the Facility Agent
may have notified to the Tranche A Banks and shall be paid by the Facility
Agent on such date in like funds as are received by the Facility Agent to
the General Operations Account.
8.3 Currency
All amounts payable under this Agreement shall be payable in French Francs.
8.4 Facility Agent may assume receipt
Where any sum is to be paid under this Agreement to the Facility Agent for
the account of another person, the Facility 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 Facility Agent, then the person to
whom such sum was so made available shall on request refund such sum to the
Facility Agent together with interest thereon sufficient to compensate the
Facility Agent for the cost of making available such sum up to the date of
such repayment and the person by whom such sum was payable shall indemnify
the Facility Agent for any and all loss or expense which the Facility Agent
may sustain or incur as a consequence of such sum not having been paid on
its due date.
8.5 Non-Banking Days
When any payment under this Agreement becomes due on a day which is not a
Banking Day, the due date for payment shall be extended 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.
8.6 Certificates conclusive
Any certificate or determination of the Facility Agent, the Arranger, the
Security Agent or any Bank as to any rate of interest or any amount payable
under this Agreement shall include a statement in reasonable detail of the
manner in which such determination was made and shall, in the absence of
manifest error, be conclusive and binding on any Borrower and (in the case
of a certificate or determination by the Facility Agent, the Arranger or
the Security Agent) on the Banks.
8.7 Grossing-up for Taxes
Subject to Clause 8.8, if at any time any Borrower is required to make any
deduction or withholding in respect of Taxes from any payment due under
this Agreement for the account of any Beneficiary (or if the Facility Agent
is required to make any such deduction or withholding from a payment to any
52
other Beneficiary), the sum due from such Borrower in respect of such
payment shall, subject to the Banks' compliance with Clause 8.11(b), be
increased to the extent necessary to ensure that, after the making of such
deduction or withholding, each Beneficiary 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 Borrower shall indemnify each Beneficiary against any losses
or costs incurred by any of them in direct consequence of any failure of
such Borrower 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 Borrower shall promptly deliver to the Facility Agent copies of
(or, where required, originals of) any receipts, certificates or other
proof evidencing the amounts (if any) paid or payable in respect of any
deduction or withholding as aforesaid.
8.8 Qualifying Banks
If any Bank is not or ceases to be a Qualifying Bank then it shall promptly
notify the Borrowers upon becoming aware of the same and no Borrower shall
be obliged to pay such Bank under Clause 8.7 any amount in excess of the
amount it would have been obliged to pay if such Bank was or had not ceased
to be a Qualifying Bank provided that this Clause 8.8 shall not apply (and
the Borrowers shall be obliged to comply with their obligations under
Clause 8.7) 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 Bank ceases to be a Qualifying Bank or any Borrower is
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 Bank confirms to the relevant Borrower that it is a Qualifying
Bank.
8.9 Claw-back of Tax benefit
If following any such deduction or withholding as is referred to in Clause
8.7 from any payment by any Borrower, any Beneficiary shall receive or be
granted a credit against or remission for any taxes payable by it, the
relevant Beneficiary shall, subject to the relevant Borrower having made
any increased payment in accordance with Clause 8.7 and to the extent that
the Facility Agent, the Arranger, the Security Agent or such Bank can do so
without prejudicing the retention of the amount of such credit or remission
and without prejudice to the right of such Beneficiary to obtain any other
relief or allowance which may be available to it, reimburse the relevant
Borrower with such amount as such Beneficiary shall certify to be the
proportion of such credit or remission as will leave the Beneficiary (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 Borrower as aforesaid. Such reimbursement shall be made forthwith
upon the Beneficiary certifying that the amount of such credit or remission
has been received by it provided that the relevant Beneficiary shall not
53
unreasonably delay before so certifying. Nothing contained in this
Agreement shall oblige any Beneficiary to disclose to the relevant Borrower
or any other person any information regarding its tax affairs or tax
computations or interfere with the right of the Beneficiary to arrange its
tax affairs in whatever manner it thinks fit and, in particular, none of
the Beneficiaries shall be under any obligation to claim relief from its
corporate profits tax liability or similar tax liabilities in respect of
such tax in priority to any other claims, reliefs, credits or deductions
available to it. Without prejudice to the generality of the foregoing, no
Borrower shall by virtue of this Clause 8.9 be entitled to enquire about
any Beneficiary's tax affairs.
8.10 If grossing-up is illegal
(a) If any Borrower is, or becomes obliged, to make any deduction or
withholding on account of any Taxes or deductions of whatever nature
under Clause 8.7 (Grossing up for Taxes) and is prevented from making
any additional payments in full by applicable law such that the
relevant Beneficiary does not receive the full amount which it would
have received had payment not been made subject to such taxes or other
deduction, the relevant Beneficiary shall have the right by giving
notice to such Borrower through the Facility Agent, as the case may
be, to require such Borrower to prepay all or part of its
participation in each outstanding Advance (without prejudice to the
continuing obligation of such Borrower to make any such additional
payment, which it is prevented from making by applicable law, as soon
as payment becomes permitted by applicable law).
(b) If a Beneficiary notifies any Borrower through the Facility Agent that
it requires such Borrower to prepay all or part of its participation
in an outstanding Advance pursuant to paragraph (a) above then such
Borrower shall make prepayment of such amount in full as notified to
it by the Facility Agent on the earlier of (i) the last day of the
then current Interest Period for that Advance and (ii) the date
falling 60 days after the giving of such notice to such Borrower
subject, in any case, to a minimum prior notice of 10 Banking Days.
8.11 Certification to secure a Tax benefit
If, in order to make any payment due under this Agreement to the Facility
Agent, the Arranger, the Security Agent or any Bank 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 Borrower requires a
direction from or the consent of a government or taxing authority:
(a) such Borrower agrees to use its reasonable endeavours to complete,
execute, arrange for any required certification of, and deliver to the
Agent, the Security Agent, the Arranger or such Bank or such
government or taxing authority as the Agent, the Security Agent, the
Arranger or such Bank reasonably directs, any form or document
54
reasonably required of it, and to provide such information that the
Agent, the Security Agent, the Arranger, such Bank or such government
or taxing authority may reasonably require or request in order to
assist or enable the Agent, the Security Agent, the Arranger or such
Bank to secure that such a direction or consent is given to such
Borrower in respect of any payment. The relevant Borrower 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 the Facility Agent, the Security Agent, the
Arranger, such Bank or the relevant government or taxing
authority, as the case may be;
(b) the Facility Agent, the Security Agent, the Arranger and each such
Bank agrees to use its reasonable endeavours to complete, execute,
arrange for any required certification of, and deliver to the relevant
Borrower, or such government or taxing authority as such Borrower may
reasonably direct, any form or document reasonably required of it, and
to provide such information that such Borrower or such government or
taxing authority may reasonably require or request in order to assist
or enable such Borrower to secure that such a direction or consent is
given to it in respect of any payment. The obligations of the Agent,
the Security Agent, the Arranger and such Bank under this sub-
paragraph (b) shall be performed within 30 days of reasonable demand
by the relevant Borrower.
8.12 Bank accounts
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by, owing
to and paid to it under this Agreement. The Facility Agent shall maintain a
control account showing the Advances and other sums owing by each Borrower
under this Agreement and all payments in respect thereof made by the
relevant Borrower from time to time. The control account shall be prima
facie evidence as to the amount from time to time owing by any Borrower
under this Agreement.
8.13 Partial payments
Other than in the case of prepayment to a specific Bank, if, on any date on
which a payment is due to be made by any Borrower under this Agreement, the
amount received by the Facility Agent from such Borrower falls short of the
total amount of the payment due to be made by such Borrower on such date
then, without prejudice to any rights or remedies available to the Facility
Agent and the Banks under this Agreement, the Facility Agent or, as the
case may be, the Security Agent, shall apply the amount actually received
from the relevant Borrower in or towards discharge of the obligations of
such Borrower under this
55
Agreement in the following order, notwithstanding any appropriation made,
or purported to be made, by such Borrower:
(a) first, in or towards payment to the Facility Agent, of any portion of
the arrangement and underwriting fee payable under Clause 7.1(a) which
shall have become due but remains unpaid;
(b) secondly, in or towards payment to the agency fee payable under Clause
7.1 (b) which shall have become due, but remains unpaid
(c) thirdly, in or towards payment to the Facility Agent, the Arranger,
the Security Agent and the Banks of any unpaid costs and expenses of
the Facility Agent, the Arranger, the Security Agent and the Banks due
to them on such date pursuant to the terms of this Agreement;
(d) fourthly, in or towards payment to the Banks, on a pro rata basis, of
any accrued commitment fee payable under Clause 7.1(c) which shall
have become due, but remains unpaid;
(e) fifthly, in or towards payment to the Banks, on a prorata basis, of
any default interest payable in accordance with Clause 6.8 of this
Agreement;
(f) sixthly, in or towards payment to the Banks, on a pro rata basis, of
any accrued interest in respect of the Tranche A Facility or Tranche B
Facility which shall have become due, but remains unpaid;
(g) seventhly, in or towards payment to the Banks, on a pro rata basis, of
any principal of the Tranche A Facility and/or the Tranche B Facility
which shall have become due, but remains unpaid; and
(h) eighthly, in or towards payment of any other sum which shall have
become due but remains unpaid (and, if more than one such sum so
remains unpaid, on a pro rata basis).
The order of application set out in this Clause 8.13 may be varied by the
Facility Agent if all Banks so direct.
9 REPRESENTATIONS AND WARRANTIES
------------------------------
9.1 Representations and warranties
------------------------------
Each Borrower represents and warrants in respect of itself (and the Parent,
following any Permitted Share Acquisition, represents and warrants in
respect of any other member of the Group, so that any reference to a
Borrower in this Clause 9.1 shall also be deemed to constitute a
representation and warranty by the Borrower with reference to any member of
the Group at such time), to each of the Banks, the Arranger, the Security
Agent and the Facility Agent that:
56
(a) Due incorporation
it is duly incorporated and validly existing under the laws of France
and has power to carry on its business as it is now being and
hereafter proposed to be conducted and to own its property and other
assets;
(b) Power
it has all requisite power to enter into, execute and deliver the
Facility Documents to which it is at any time a party and to perform
its obligations under each such Facility Document, compliance has been
made with all necessary requirements and all necessary corporate,
shareholder or other action has been taken by it to authorise the
execution, delivery and performance of each of the Facility Documents
to which it is a party, and no limitation on its powers to borrow will
be exceeded as a result of borrowings under this Agreement;
(c) Binding obligations
this Agreement and each Facility Document to which it is a party
constitutes its valid and legally binding obligations enforceable in
accordance with its terms, subject, however to the effect of
bankruptcy, insolvency, reorganisation, moratorium or similar laws now
or hereafter in effect relating to or affecting the rights or remedies
of creditors 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
Facility Documents to which it is a party do not (i) contravene any
existing applicable law, statute, rule or regulation or any judgement,
decree or permit to which it is subject, (ii) contravene or conflict
with any provision of its or their statuts or other constitutive
documents, (iii) breach any term of the Cable Broadcasting Law
Authorisations or the Telecommunications Law Authorisations, (iv)
conflict with or result in any breach of any of the terms of, or
constitute a default under any Material Contract, (v) conflict with or
result in any breach of any of the material terms of any of the Other
Required Authorisations and Contracts or (vi) result in the creation
or imposition of, or oblige it to create, any Encumbrance (other than
those created by the Security Documents) on it or any of its or their
undertakings, assets, rights or revenues, which in any of the
foregoing cases would constitute a Material Adverse Circumstance;
57
(e) No litigation
no litigation, arbitration or administrative or regulatory proceedings
or investigations is taking place, pending or, to the knowledge of its
officers, is threatened against it which (if adversely determined)
would constitute a Material Adverse Circumstance;
(f) Accounts
(i) the Accounts most recently delivered to the Facility Agent
under Clauses 10.1(f), (g) and (h) have been prepared, save as
expressly disclosed in notes to or accompanying such Accounts,
in accordance with French GAAP and (in the case of audited
annual Accounts) present a true and fair view of, or (in the
case of unaudited Accounts) fairly present, its financial
position (and, where relevant, the consolidated financial
position of the Group) as at the date to which the same were
prepared;
(ii) It has disclosed all significant liabilities (contingent or
otherwise) and any unrealised or anticipated losses of which it
is aware;
(iii) All forecasts and projections contained in the Business Plan
and each Annual Operating Budget delivered to the Facility
Agent under Clause 10.1(j)(v) were arrived at after careful
consideration, were fair, were based on reasonable grounds,
represent its expectations for the period covered thereby on
the date thereof in light of events and circumstances at that
time, and, as at the date of their delivery to the Facility
Agent, were not misleading in any material respect;
(iv) Nothing has occurred since the date of the audited Accounts
most recently delivered to the Facility Agent pursuant to
Clause 10.1(f) which constitutes a Material Adverse
Circumstance (other than as fully disclosed to the Facility
Agent);
(g) No filing required
it is not necessary, due to its status or activity or any permits or
licences which it holds, to ensure the legality, validity,
enforceability or admissibility in evidence of any Facility Document
to which it is a party that any of them or any other instrument be
notarised, filed, recorded, registered or enrolled in any court or
public office in France (other than the Security Documents which by
their terms are required to be filed and/or registered as stated
therein), nor are stamp or registration duty or similar taxes or
charges payable in France in respect of any Facility Document (other
than such stamp and registration duty and similar taxes and charges as
are specified herein or in the Security and Subordination Documents);
58
(h) No approval of Local Authorities required for security assignment
The assignment by way of security of receivables arising under the
Franchise Agreements pursuant to the Local Authority Master
Receivables Assignment Agreement will not entitle any Local Authority
to terminate any such Franchise Agreement pursuant to the terms of
such Franchise Agreement;
(i) Legal ownership
as of the date hereof or as may be reflected in the Accounts, it is
the legal owner of and has good and marketable title to all its or
their property and other material assets free from any Encumbrances
other than Permitted Encumbrances;
(j) No Material Adverse Circumstance
no Material Adverse Circumstance has occurred since the latest annual
audited Accounts provided to the Facility Agent;
(k) Compliance with Environmental Laws and Licences
it:
(i) complies and has at all times complied with all requirements of
Environmental Laws and Environmental Licences where failure to do
so would constitute a Material Adverse Circumstance; and
(ii) has obtained and maintains in full force and effect all
Environmental Licences, and there are no facts or circumstances
entitling any such Environmental Licences to be revoked,
suspended, amended, varied, withdrawn or not renewed where such
revocation, suspension, amendment, variation, withdrawal or non-
renewal would constitute a Material Adverse Circumstance;
(l) Environmental Claim
no Environmental Claim is pending or has been made or (to its
knowledge) threatened against it or its or their officers or any
occupier of any property owned or leased by it and it has no reason to
believe that it has or is likely to have any liability in relation to
Environmental Matters which will constitute a Material Adverse
Circumstance;
(m) Deposit of Relevant Substance
to the best of its knowledge, no Relevant Substance has been
deposited, disposed of, kept, treated, imported, exported,
transported, processed, manufactured, used, collected, sorted or
produced at any time, or is present in the environment (whether or not
on property owned, leased, occupied or controlled by the Borrower) in
circumstances which are
59
likely to result in an Environmental Claim against it which would
constitute a Material Adverse Circumstance;
(n) Intellectual Property Rights
(i) the Intellectual Property Rights owned by it are free from any
Encumbrance (save for those created or to be created by or
pursuant to the Security Documents) and any other rights or
interests in favour of third parties;
(ii) the Intellectual Property Rights owned by it or (in the case of
the Third-Party Trademarks) licensed to it are all the
Intellectual Property Rights required by it in order to carry
on, maintain and operate in all material respects its business,
properties and assets and in carrying on its business it is not
infringing any Intellectual Property Rights of any third party
where any action taken by such third party in respect of any
such infringement would constitute a Material Adverse
Circumstance; and
(iii) no Intellectual Property Rights owned by or licensed to it are
being infringed, nor (to the best of its knowledge) is there
any threatened infringement of any such Intellectual Property
Rights which, in either case would constitute a Material
Adverse Circumstance;
(o) Copyright matters
it has obtained all consents and taken all other action required in
connection with the secondary transmission by it or them of any
broadcast television signals and it does not have 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 constitute a Material
Adverse Circumstance, provided that it has been notified by
ANGOA/AGICOA of a demand that it sign a contract authorising the
Parent to broadcast programmes, the intellectual property rights of
which are owned by the producers which ANGOA/AGICOA represent, that
the Parent has signed such contract but that such contract is of
limited duration.
(p) Material Contracts
(i) it has the corporate power and authority to enter into and
perform its obligations under the Material Contracts;
(ii) it has taken all necessary corporate action to authorise the
execution and performance of its obligations under the Material
Contracts;
60
(iii) each Material Contract to which it is a party constitutes its
valid, legally binding and enforceable obligations subject,
however to the effect of bankruptcy, insolvency,
reorganisation, moratorium or similar laws now or hereafter in
effect relating to or affecting the rights or remedies of
creditors generally;
(iv) it is not (nor to the best of its knowledge, information and
belief on due enquiry is any other party thereto) in breach of
any of its obligations under any Material Contract, and no
Material Contract is the subject of any pending or, (to the
best of its knowledge, information and belief on due enquiry)
threatened, dispute, suspension, withdrawal, termination,
cancellation or revocation, whether in whole or in part, by any
competent authority and which, in the case of:
(A) a pending or (to the best of its knowledge) threatened
dispute; or
(B) a breach by a party other than the Borrower or any
other member of the Group;
constitutes or would constitute a Material Adverse
Circumstance;
(v) all Franchise Agreements and Public Domain Occupation
Agreements necessary to establish and operate its Cable
Broadcasting and Telecommunications Systems have been obtained
or effected and are in full force and effect;
(q) Cable Broadcasting and Telecommunications Law Authorisations
(i) it has the corporate power and authority to apply for and
perform its or their obligations under the Cable Broadcasting
and Telecommunications Law Authorisations;
(ii) it has taken all necessary corporate action to authorise the
execution and performance of its or their obligations under the
Cable Broadcasting and Telecommunications Law Authorisations;
(iii) its obligations under each Cable Broadcasting Law Authorisation
and each Telecommunications Law Authorisation constitute its
valid, legally binding and enforceable obligations subject,
however to the effect of bankruptcy, insolvency,
reorganisation, moratorium or similar laws now or hereafter in
effect relating to or affecting the rights or remedies of
creditors generally;
(iv) it is not in breach of any of its obligations under each Cable
Broadcasting Law Authorisation and each Telecommunications Law
Authorisation, and no Cable Broadcasting Law Authorisation or
Telecommunications Law Authorisation is the
61
subject of any pending or (to its knowledge) threatened
dispute, suspension, withdrawal, termination, cancellation or
revocation, whether in whole or in part, by any competent
authority save to the extent that it has demonstrated to the
reasonable satisfaction of the Majority Banks that it has taken
steps to eliminate the risk of suspension, withdrawal,
termination, cancellation or revocation of any Cable
Broadcasting Law Authorisation in accordance with Clause
10.1(c);
(v) subject to Article 10.1(r) all Cable Broadcasting and
Telecommunications Law Authorisations necessary for the
operation of the Cable Broadcasting and Telecommunications
Systems have been obtained or effected and are in full force
and effect;
(r) Other Required Authorisations and Contracts
(i) each Other Required Authorisation or Contract constitutes its
valid and legally binding obligations subject, however to the
effect of bankruptcy, insolvency, reorganisation, moratorium or
similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors generally;
(ii) it is not (nor to the best of the Borrower's knowledge,
information and belief on due enquiry is any other party
thereto) in breach of any of its or their obligations under any
Other Required Authorisation or Contract, and no Other Required
Authorisation or Contract is the subject of any pending or, (to
its knowledge) threatened dispute, suspension, withdrawal,
termination, cancellation or revocation, whether in whole or in
part, by any competent authority and which breach or dispute,
suspension, withdrawal, termination, cancellation or revocation
constitutes or would constitute a Material Adverse
Circumstance;
(iii) all Other Required Authorisations and Contracts have been
obtained or effected and are in full force and effect, other
than:
(A) those which are not now required or which it would be
premature to obtain or effect and where, in either case,
(x) the Borrower, on due enquiry, does not have any reason
to believe that it will not be able to obtain or effect
the same in good time or (y) the same will be in full
force and effect when required under applicable law or
contract; or
(B) where failure so to obtain or effect an Other Required
Authorisation or Contract does not or would not constitute
a Material Adverse Circumstance;
62
(s) No withholding Taxes
(assuming the correctness of the confirmation set out in the last
sentence of Clause 8.8) under the law and practice at today's date all
amounts payable by it under the Facility Documents may be paid free
and clear of and without deduction for or on account of any Tax;
(t) Tax liabilities
(i) no claims are being asserted against it with respect to Taxes
which, if adversely determined, would constitute, a Material
Adverse Circumstance;
(ii) it is not overdue in the filing of any Tax returns required to be
filed by it and it has paid all Taxes shown to be due on any Tax
returns required to be filed by it or them or on any assessments
made against it or them for non-payment, or on or in any claim
for payment, where failure so to file or so to pay constitutes or
would constitute a Material Adverse Circumstance;
(u) Compliance with law
it is in compliance in all material respects with all applicable laws
(including, without limiting the generality of the foregoing, the
Cable Broadcasting and Telecommunications Laws but excluding, for
these purposes only, breaches of the Cable Broadcasting and
Telecommunications which have been expressly or impliedly waived by
the relevant regulatory authority), rules, regulations and orders of
any governmental or administrative authority (including, without
limiting the generality of the foregoing, each relevant Local
Authority, the CSA and the ART) having jurisdiction over it or any of
its assets;
(v) No Default
no Default has occurred and is continuing;
(w) Encumbrances:
(i) no Encumbrance exists over its assets which would cause a breach
of Clause 10.2(a) (Negative pledge) or of any relevant Acquired
Company Negative Pledge Letter;
(ii) neither the execution of the Facility Documents or the Material
Contracts to which it is a party nor the performance by it of its
obligations or the exercise of its rights thereunder results in,
or will result in, the existence of, or oblige it to create, any
Encumbrance in favour of any third party over the whole or any
part of its undertaking or assets, present or future (except
Permitted Encumbrances);
63
(iii) any security conferred by it pursuant to the Security Documents
constitutes at all times a first priority security interest or
the sole security interest, as the case may be, of the type
therein described over the assets therein referred to, which
are not subject to any prior or pari passu Encumbrances (except
Permitted Encumbrances);
(x) Reports
So far as its President or Gerant is aware after due and careful
review and enquiry:
(A) all material factual information furnished by it or its
advisors to each of the firms which prepared the Reports
was true in all material respects at the date (if any)
ascribed thereto or (if none) the date the information was
given or, in the case of any other material factual
information furnished to each of the firms which prepared
any of the Reports, it is not aware that any such
information is not true in any material respect at the
date (if any) ascribed thereto or (if none) the date the
information was given; and
(B) all expressions of opinion or intention given by or on
behalf of it and all forecasts and projections furnished
by it to each such firm were arrived at after careful
consideration, were fair and were based on reasonable
grounds;
(y) Immunity
it will not be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in France
in relation to any Facility Document, and, to the extent that
notwithstanding the foregoing it becomes entitled to claim such
immunity, it hereby waives such immunity to the fullest extent
permitted by law;
(z) Consulting Agreements
there are no consulting agreements in force other than the agreement
entered into by the Parent as regards Xx. Xxxxxx Thullemans, and such
agreement does not violate the provisions of Clause 10.2(m) hereof;
64
(aa) Shareholders' Agreements
to the best of its knowledge, there are no Shareholders' Agreements in
effect the performance of the terms of which would constitute a breach
of the terms of any of the Facility Documents; and
(bb) Interconnection Agreements
each Interconnection Agreement (if any) to which it is a party is
compatible with the Business Plan.
9.2 Repetition
The representations and warranties set out in this Clause 9 shall survive
the execution of this Agreement and the making of each Advance or any
Overdraft Utilisation hereunder and (except in the case of 9.1(f)(iii)
(Accounts) (but only with respect to the Business Plan), 9.1(g) (No filing
required), 9.1(x) (Reports) and 9.1(s) (No withholding taxes)) shall be
deemed to be repeated on the date of delivery of each Drawdown Notice or
Rollover Notice hereunder and on each Drawdown Date as the case may be, on
the date of each Overdraft Utilisation and on each Interest Payment Date,
with reference to the facts and circumstances then subsisting, as if made
at each such time.
10 UNDERTAKINGS
------------
10.1 Positive Covenants
Each Borrower undertakes with each of the Banks, the Arranger, the Security
Agent and the Facility Agent that, from the date of this Agreement and so
long as (i) the Total Commitments have not been reduced to zero, or (ii)
any monies are owing under any of the Facility Documents or (iii) any part
of the Advances or the Overdraft Utilisations remains outstanding, it will
(and the Parent, following any Permitted Share Acquisition, undertakes that
it will, except where reference is expressly made to "the Parent only",
cause each member of the Group to):
(a) Notice of Default, etc.
promptly inform the Facility Agent of (1) any Default forthwith upon
becoming aware thereof (and will, if so requested by the Facility
Agent on any Periodic Financial Ratio Test Date, confirm to the
Facility Agent in writing that, save as otherwise stated in such
confirmation, no Default has occurred and is continuing), (2) any
lapse, suspension or termination of or refusal by any person to renew
or extend any Cable Broadcasting Law Authorisation, Telecommunications
Law Authorisation, Other Required Authorisation or Contract or
Material Contract or any breach of any Cable Broadcasting Law
Authorisation, Telecommunications Law Authorisation, Other Required
Authorisation or Contract or Material Contract where any such breach
would constitute a Material Adverse Circumstance, (3) (to the extent
known to it) the commencement of all
65
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, constitute a Material Adverse Circumstance (4)
any application of which it becomes aware for any other authorisation
or franchise agreement with respect to cable radio and television or
telecommunications systems (including satellite master antennae
television systems and multi-point microwave distribution systems)
with respect to the territory covered by any of the Cable Broadcasting
Law Authorisations or any of the Telecommunications Law Authorisations
where any such application, if successful, would constitute a Material
Adverse Circumstance, (5) any breach of any Cable Broadcasting Laws or
Telecommunications Laws which would constitute a Material Adverse
Circumstance and (6) (to the extent known to it) any continuing breach
by any party of the terms of any of the Cable Broadcasting Law
Authorisations or the Telecommunications Law Authorisations;
(b) Consents and authorisations
obtain or cause to be obtained (i) every consent, authorisation (other
than a Cable Broadcasting Law Authorisation or a Telecommunications
Law Authorisation or a renewal or extension thereof) or approval of,
or registration with or declaration to, governmental or public bodies
or authorities or courts and (ii) every notarisation, filing,
recording, registration or enrolment in any court or public office in
France (in any such case) required by it to authorise, or in
connection with, the execution, delivery, validity, enforceability or
admissibility in evidence of the Facility Documents or the performance
by it or any Subordinated Creditor of their respective obligations
under this Agreement and the Facility Documents to which they are a
party;
(c) Cable Broadcasting and Telecommunications Law Authorisations
(i) obtain or cause to be obtained every Cable Broadcasting Law
Authorisation and every Telecommunications Law Authorisation
necessary for the construction and the operation of the Cable
Broadcasting and Telecommunications Systems and ensure that (A)
where there are any Subscribers subscribing for services covered
by a Cable Broadcasting Law Authorisation and/or a
Telecommunications Law Authorisation, such Cable Broadcasting Law
Authorisation and/or Telecommunications Law Authorisation is not
revoked, cancelled, suspended, withdrawn or terminated owing to
its action or omissions, or does not expire or otherwise cease to
be in full force and effect unless the same is, prior to or
contemporaneously with such event, renewed or replaced and (B)
such Cable Broadcasting Law Authorisation and/or
Telecommunications Law Authorisation is not modified and it does
not commit any breach of the terms or conditions thereof
(including, without limitation, any failure to
66
meet the milestones referred to in any relevant Franchise
Agreement), where any such modification, breach or failure would
constitute a Material Adverse Circumstance;
(ii) apply to extend or renew each Cable Broadcasting Law
Authorisation and Telecommunications Law Authorisation no later
than 12 months before the date on which the same is scheduled to
expire and take all steps required by the Cable Broadcasting and
Telecommunications Laws and all other steps reasonably necessary
to effect the extension or renewal of the same for a period
extending at least 24 months (or, if the ratio of Bank Debt to
Annualised EBITDA on the preceding Periodic Financial Ratio Test
Date is less than 2.0:1, then 12 months) after the Final
Maturity Date;
(iii) in the event that, notwithstanding the foregoing, it receives
notification by the relevant French regulatory authorities
(including, without limitation, the Local Authorities, the CSA
or the ART) that such authorities have become aware of the
occurrence of an event or circumstances which could lead to the
revocation, suspension or withdrawal of any Cable Broadcasting
Law Authorisation and/or Telecommunications Law Authorisation
(whether in whole of in part), forthwith notify the Facility
Agent in writing and at its own cost and expense, take such
steps as are reasonable and necessary to mitigate the risk of
revocation, suspension or withdrawal (whether in whole or in
part) unless it can demonstrate to the reasonable satisfaction
of the Majority Banks that the relevant Cable Broadcasting Law
Authorisation and/or Telecommunications Law Authorisation is not
in danger of being revoked, suspended or withdrawn (whether in
whole or in part);
(d) Other Required Authorisations and Contracts
obtain or cause to be obtained every Other Required Authorisation or
Contract and ensure that (i) none of the Other Required Authorisations
and Contracts is revoked, cancelled, suspended, withdrawn or
terminated, or expires and is not renewed or otherwise ceases to be in
full force and effect and (ii) no Other Required Authorisation or
Contract is modified and it does not commits any breach of the terms
or conditions of any Other Required Authorisation or Contract which,
in the case of any of the actions or events referred to in either (i)
or (ii), would constitute a Material Adverse Circumstance;
(e) Business
engage in the business (in accordance with all laws and regulations
applicable to the Cable Broadcasting and Telecommunications Systems)
of constructing, installing, operating and utilising
67
(i) the cable radio and television networks constructed or which may
be constructed in the areas covered by the Franchise Agreements
and/or the Radio and Television Public Domain Occupation
Agreements; and/or
(ii) the telecommunications networks (including telephone, high-speed
data transmission, Internet access, multi media services and
related activities) in which signals are broadcast by means of
optical fibres, cables or other wired means (and excluding, for
the avoidance of doubt, radioelectric (Hertzian)
telecommunications networks and satellite telecommunications
networks except for experimental purposes or as otherwise agreed)
which may be constructed in the areas covered by the Telephony
Licence and the Telecommunications Public Domain Occupation
Agreements;
and in no other activities save for any directly related business
reasonably considered to be financially beneficial to such business;
(f) Financial statements
prepare or procure the preparation of :
(i) annual audited financial statements (including at a minimum,
balance sheet, profit and loss account and a statement of sources
and uses of funds) (and, in the case of the Parent only,
following any Permitted Share Acquisition, such annual audited
financial statements for each member of the Group and
consolidated financial statements of the Group) in accordance
with French GAAP and cause such financial statements to be
certified without qualification by the Statutory Auditors and
deliver to the Facility 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;
(ii) semi-annual unaudited financial statements and (in the case of
the Parent only), following any Permitted Share Acquisition, such
semi-annual unaudited financial statements for each member of the
Group and consolidated financial statements of the Group) (on the
same basis used for the annual financial statements referred to
in (i) above) in respect of the first semester of each year, and
deliver to the Facility Agent sufficient copies of the same for
distribution to all of the Banks as soon as practicable but not
later than 60 days after the end of the semi-annual period to
which they relate;
in each such case presenting a true and fair view of its financial
position and the results of its operations (and, in the case of the
Parent only, of each company in the Group and the Group as a whole),
as at the end of and for the accounting period to which they relate;
68
(g) Quarterly Management Accounts
in respect of each Quarterly Period, prepare unaudited Quarterly
Management Accounts with respect to it (and, in the case of the Parent
only, with respect to each company in the Group and on a consolidated
basis for the Group as a whole), in the form and containing the
information set forth in Schedule 6 part A hereto, and deliver to
Facility Agent sufficient copies of the same for distribution to all
of the Banks as soon as practicable but not later than 45 days after
the end of the Quarterly Period to which they relate;
(h) Monthly Management Reports
in respect of each calendar month, prepare unaudited Monthly
Management Reports with respect to it (and, in the case of the Parent
only, with respect to each company in the Group and on a consolidated
basis for the Group as a whole), in the form and containing the
information set forth in Schedule 6 part B hereto, and deliver to
Facility Agent sufficient copies of the same for distribution to all
of the Banks as soon as practicable but not later than 30 days after
the end of the calendar month to which they relate;
(i) Change in basis of Accounts
ensure that all Accounts delivered under Clause 10.1(f) are prepared
in accordance with French GAAP and in accordance with the accounting
principles and practices used in the preparation of the financial
statements for 1997 delivered to the Facility Agent and the 1998
Business Plan (the "ORIGINAL BASIS") consistently applied in respect
of each financial year unless to do so would be inconsistent with then
current French GAAP (the "NEW BASIS"). If the preparation of financial
statements on the Original Basis is contrary to the New Basis then it
shall promptly notify the Facility Agent in writing of the relevant
change and (at its option) shall either (1) prepare and deliver to the
Facility Agent 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 Facility Agent to enter into
good faith negotiations for such amendment (if any) as are necessary
to the covenants contained in Clause 11 (Commercial and Financial
Covenants) and any other provisions of this Agreement affected by such
change, in which event the Facility Agent will enter into such
negotiations for a period of not more than 28 days. If agreement is
reached between it and the Facility 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 each Borrower shall then
be obliged to produce financial statements on the
69
New Basis only. If no such agreement is reached then it shall be
obliged to prepare and deliver audited financial statements on the New
Basis accompanied by a Reconciliation Statement.
Where any Borrower or the Parent is under an obligation to deliver
financial statements under Clause 10.1(f) on the New Basis but
accompanied by a Reconciliation Statement, Monthly Management Reports
and Quarterly Management Accounts shall also be delivered (at its
option) either on both bases or on the New Basis but accompanied by an
unaudited Reconciliation Statement.
All Accounts and Reconciliation Statements delivered pursuant to this
Clause 10.1 (i) shall be delivered within the relevant time period set
out in Clause 10.1(f), (g) and (h).
The provisions of this Clause 10.1(i) shall also apply, mutatis
mutandis, to the preparation and delivery of the Annual Operating
Budget and the Business Plan under Clause 10.1(j)(iv).
(j) Delivery of Reports and Compliance Certificates
deliver to the Facility Agent, for distribution to the Banks,
sufficient copies for all of the Banks of each of the following
documents, in each case at the time of issue thereof (or in the case
of the certificates referred to in (ii) and (iii) below, together with
the financial statements prepared in respect of each financial year
and Quarterly Management Accounts prepared in respect of each
Quarterly Period pursuant to Clause 10.1(g) in respect of the
financial period to which such certificate relates):
(i) every material document issued by it to its shareholders (in
their capacity as shareholder, in accordance with the provisions
of French company law and regulations) or issued by it to its
creditors generally;
(ii) in the case of the Parent only, at the same time as the annual
audited financial statements are delivered to the Facility Agent
pursuant to paragraph 10.1(f) above, a certificate of the
Statutory Auditors substantially in the form of Schedule 7, Part
B, setting out in reasonable detail computations establishing
the amount of Excess Cash Flow (if any) for the annual
accounting period to which the relevant annual audited financial
statements relate for the purposes of Clause 5.5 (Mandatory
prepayment);
(iii) in the case of the Parent only, at the same time as the
Quarterly Management Accounts are delivered to the Facility
Agent pursuant to paragraph 10.1(g) above, with respect to each
Periodic Financial Ratio Test Date which falls within the
Quarterly Period to which such Quarterly Management Accounts
70
relate, a Financial Ratio Compliance Certificate in the form set
out in Schedule 7, Part A, signed by the President of the
Parent;
(iv) in the case of the Parent only, a copy of the Business Plan and
the Annual Operating Budget, as soon as reasonably practicable
following approval of the same by the relevant corporate or
financial bodies of the Parent;
(v) the Reports required to be delivered hereunder; and
(vi) such other information, data or documents as may reasonably be
requested by the Banks in order to make an assessment of work to
be carried out in respect of the Cable Broadcasting and
Telecommunications Systems, the timing thereof and generally to
assess any other relevant aspect of the Cable Broadcasting and
Telecommunications Systems;
(k) Delivery of Information with respect to Acquisitions
in the case of the Parent only, deliver to the Facility Agent
(together with the relevant Drawdown Notice referred to in Clause
4.1(b)), for distribution to the Banks, sufficient copies for all of
the Banks of each of the following documents, in respect of RCF
Advances requested for the purpose of a Permitted Acquisition, as
described in Clause 4.1(b) above, relating to any proposed Acquisition
in respect of which the Parent is to pay a purchase price in excess of
FRF 50,000,000 (fifty million French Francs):
(i) a revised Business Plan taking into account the proposed
Acquisition and which shows to the reasonable satisfaction of the
Majority Banks that:
(A) the proposed Acquisition constitutes a Permitted
Acquisition;
(B) the ability of each Borrower to meet its obligations
hereunder (including, without limiting the generality of the
foregoing, such Borrowers' payment obligations and the
obligations of compliance with the financial covenants set
out in Clause 11 hereof) is not prejudiced thereby; and
(C) the proposed Acquisition is otherwise compatible with the
financing made hereunder; and
(ii) the text of the agreement proposed to be entered into by the
Parent in respect of the planned Acquisition;
71
(l) Financial Year End
maintain a financial year end of 31st December (and in the case of the
Parent only, ensure that each member of the Group maintains a
financial year end of 31st December);
(m) Authorised Officers
ensure that any new or replacement Authorised Officer has provided the
Facility Agent with evidence satisfactory to it of such new officer
prior to signing any Compliance Certificates, Drawdown Notices or any
other notices, requests or confirmations referred to in this Agreement
or relating to the Facility granted pursuant to this Agreement;
(n) Statutory Auditors
ensure that its commissaires aux comptes comply at all times with the
definition of "Statutory Auditors" set forth in Clause 1.3 hereof;
(o) Provision of further information
provide the Facility Agent :
(i) with a copy of each Material Contract entered into after the
date of this Agreement, other than;
(A) any Shareholders' Agreement (but without prejudice to the
application of Clause 9.1(aa)); and
(B) (to the extent that the terms of such Interconnection
Agreement contain, at the request of the other contracting
party, a requirement that the provisions thereof remain
confidential), any Interconnection Agreement (but without
prejudice to the application of Clause 9.1(bb));
(ii) as soon as the same are instituted or, to its knowledge,
threatened, details of any litigation, arbitration or
administrative or regulatory proceedings or investigations
involving it which, if adversely determined, would constitute a
Material Adverse Circumstance;
(iii) promptly, upon the earlier of (x) its becoming aware of the
same, or (y) its being notified of the same,:
(A) a copy of any agreements or arrangements entered into by
the Shareholders or the Parent or both which may
supplement, replace or amend or affect any of the
provisions of the Statuts; and
72
(B) notification of the existence of any agreements or
arrangements entered into by the Shareholders which would
cause the representation made in Clause 9.1(aa) to become
false or misleading;
(iv) any material report, notice or other communication relating to
the Cable Broadcasting Law Authorisations, the Material Contracts
and the Other Required Authorisations and Agreements and such
financial and other information concerning any Borrower and its
affairs (including presentations) as the Facility Agent or any
Bank (acting through the Facility Agent) may reasonably require;
(p) Insurance
insure and keep insured all its properties and assets with insurance
companies or underwriters of repute in accordance with the Minimum
Insurance Requirements and (in the case of the Parent only) produce to
the Facility Agent (i) copies of each insurance contract entered into
by any member of the Group with an Insurance Company in order to
comply with the Minimum Insurance Requirments, (ii) each year, a
certificate from an insurance broker confirming compliance with the
Minimum Insurance Requirements and (iii) at the time of delivery of
the semi-annual accounts to be delivered in accordance with Clause
10.1(f)(ii) hereof, a report describing the occurrence of any
insurable event in an amount of FRF 10 million or greater and the
action taken to recover under the applicable insurance policy;
(q) Inspection
upon the occurrence of an Event of Default, permit representatives of
the Facility Agent or any of the Banks upon reasonable prior written
notice to it, after having made arrangements with it so to do and
after entering into a confidentiality undertaking if required by it
(a) visit and inspect its properties during normal business hours, (b)
inspect and make extracts from and copies of its books and records
other than records which it is prohibited by law from disclosing to
the Facility 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;
(r) Compliance with laws and regulations
comply with the terms and conditions of all laws (including Cable
Broadcasting Laws, Telecommunications Laws, the Cable Broadcasting and
Telecommunications Law Authorisations and the Other Necessary
Authorisations but excluding, for these purposes only, breaches of
Telecommunications and Cable Laws which have been expressly or
impliedly waived by the relevant regulatory authority) and the
Franchise Agreements (including any milestone requirements in respect
thereof),
73
regulations, agreements, licences and concessions including, without
limitation, all Environmental Laws and all Environmental Licences if
the failure to comply therewith, would constitute a Material Adverse
Circumstance;
(s) Environmental matters
(i) (A) obtain all requisite Environmental Licences, (B) comply with
the terms and conditions of all Environmental Licences applicable
to it, and (C) comply with all other applicable Environmental
Laws, in each case where failure to do so constitutes, or would
constitute, a Material Adverse Circumstance; and
(ii) promptly upon receipt of the same, notify the Facility Agent and
the Security Agent of any claim, notice or other communication
served on it in respect of any alleged breach of or corrective or
remedial obligation or liability under any Environmental Law
which, if substantiated, constitutes, or would constitute, a
Material Adverse Circumstance;
(t) Relevant Substance
notify the Facility Agent forthwith upon becoming aware of any
Relevant Substance at or brought on to any property owned, leased or
occupied by it which is likely to give rise to an Environmental Claim
which would constitute a Material Adverse Circumstance and take or
procure the taking of all necessary action to deal with, remedy or
remove from such property or prevent the incursion of (as the case may
be) that Relevant Substance in order to prevent such an Environmental
Claim and in a manner that complies with all requirements of
Environmental Law;
(u) Pari passu status
insure that its obligations under any of the Facility Documents to
which it is a party rank and will at all times rank at least pari
passu in right and priority of payment and in point of security (save
by reason of and to the extent of the security afforded thereto by the
Security Documents) with all its other present and future unsecured
and unsubordinated obligations, other than obligations which are
mandatorily preferred by law applying to companies generally and not
by contract;
(v) 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 pay or cause to be paid 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 and where such payment may be
lawfully withheld);
74
(w) Use of proceeds
use the Advances under the Tranche A Facility and (in the case of the
Parent only) the Overdraft Utilisations under the Tranche B Facility
exclusively for the purposes specified in Clause 1.1;
(x) Maintain Operating Capacity
maintain managerial, subscriber and technical services from time to
time sufficient to meet the projected demand from Subscribers for
cable radio and television or telecommunications services at that
time;
(y) Interest Rate Protection Strategy
comply at all times with the Interest Rate Protection Strategy
described in Schedule 11;
(z) Business Plan
use its reasonable endeavours to comply with the Business Plan;
(aa) Syndication
prior to any syndication of the Facility by the Arranger, provide
information and make any presentations which the Arranger reasonably
requests for the purposes of such syndication, such presentations to
include presentations by the representatives of UPC or any other
Principal Shareholder;
(bb) Third-Party Trademarks
(i) insure that French trademark n degree 95564675, currently owned
by United International Holdings, is :
(A) transferred to Mediareseaux SA and
(B) pledged in favour of the Security Agent, on behalf of the
Senior Creditors, pursuant to the Existing Third-Party
Trademark Pledge Agreement; no later than sixty (60) days
from the date hereof; and
(ii) insure that any agreement pursuant to which any rights to use any
Third-Party Trademark are licensed or otherwise granted to it
contains a provision to the effect that it shall continue to gave
the right to use such Third-Party Trademark at then-prevailing
market conditions for at least six months following any change in
control;
75
(cc) Postal Subscription Payment Account and General Operations Account
ensure that any amounts standing to the credit of the Postal
Subscription Payment Account shall be transferred to the General
Operations Account in the manner required under the Master Accounts
Balance and Cash Pledge Agreement;
(dd) Actions required following Permitted Share Acquisition
in the case of the Parent only, following the consummation of any
Permitted Share Acquisition, take the following acts no later than ten
(10) Banking Days following the consummation of such Permitted Share
Acquisition:
(i) pledge and (to the fullest extent permitted by applicable law)
cause to be pledged in favour of the Security Agent, on behalf of
the Senior Creditors, all of the shareholder or other interests
in the relevant Acquired Company, as security for the obligations
of the Parent under the Facility Documents, pursuant to an
agreement substantially identical to the Financial Instruments
Accounts Pledge Agreement (an "ACQUIRED COMPANY FINANCIAL
INSTRUMENTS ACCOUNTS PLEDGE AGREEMENT"); and
(ii) cause the Acquired Company to execute an Acquired Company
Negative Pledge Letter;
(ee) Actions required following Permitted Asset Acquisition
in the case of the Parent only, no later than twenty (20) Banking Days
following the consummation of any Permitted Asset Acquisition, take
any actions required pursuant to the Parent Security Documents or
requested by the Security Agent in order to cause the assets so
transferred to the Parent to be made subject to the security created
pursuant to the Parent Security Documents;
(ff) Acceding Borrower Security Documents
in the case of any Acceding Borrower, provide (and the Parent
undertakes to take all action within its power to cause such Acceding
Borrower to provide) in favour of the Security Agent, on behalf of the
Senior Creditors, security over its own assets in form and substance
substantially identical to the Parent Security Documents
(collectively, the "ACCEDING BORROWER SECURITY DOCUMENTS"), as
security for any borrowings which the relevant Acceding Borrower may
request in accordance with the provisions of this Agreement;
76
(gg) Dividends by Acquired Company to Parent
in the case of the Parent only, vote its shares in each Acquired
Company so as to cause the payment, on an annual basis, of such amount
of dividends by such Acquired Company to the Parent as is permitted by
law and as is necessary to meet the Parent's obligations hereunder;
(hh) Information Memorandum
as at the date of the Information Memorandum the factual information
provided by the Parent and UPC contained in the Information Memorandum
shall be true and accurate in all material respects and not misleading
in any material respect and such factual information will at such time
not omit any material facts; all reasonable enquiries shall have been
made by the Parent to verify such factual information; all opinions,
projections and forecasts to be contained therein and the assumptions
on which such opinions, projections and forecasts shall have been
based will be arrived at after due and careful consideration and
enquiry and represent the views of the Parent as at the date of the
Information Memorandum; there shall be no material facts or
circumstances which have not been disclosed to the Arranger prior to
the date of such Information Memorandum the omission of which could
make any material 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; provided that for the avoidance of doubt, the
Parent makes no representation or warranty in relation to, nor assumes
any responsibility with respect to the origin, validity, accuracy or
completeness of information contained in the Information Memorandum
and derived from public sources; and
(ii) Postal Subscription Payment Account
no later than five (5) Business Days following the opening of the
Postal Subscription Payment Account, create a pledge over such account
in accordance with the provisions of the Master Accounts Balance and
Cash Pledge Agreement.
10.2 Negative Covenants
Each Borrower undertakes with each of the Banks, the Arranger, the Security
Agent and the Facility Agent that, from the date of this Agreement and so
long as (i) the Total Commitments have not been reduced to zero, or (ii)
any monies are owing under any of the Facility Documents or (iii) any part
of the Advances or the Overdraft Utilisations remains outstanding, it will
not (and the Parent, following any Permitted Share Acquisition, undertakes
that it will, except where
77
reference is expressly made to "the Parent only", cause each member of the
Group not to):
(a) Negative Pledge
permit any Encumbrance (other than Permitted Encumbrances) to subsist,
arise or be created or extended over all or any part of its present or
future undertakings, assets, rights or revenues to secure or prefer
any of its present or future indebtedness or that of any other person;
(b) Disposals
sell, transfer, lease, lend or otherwise dispose of or cease to
exercise control over the whole or any part of its present or future
undertakings, assets, rights or revenues whether by one or a series of
transactions, related or not, other than Permitted Disposals;
(c) No Acquisition
effect any Acquisition other than Permitted Acquisitions,
(d) No merger
merge or consolidate with any other company or person other than
pursuant to a Permitted Merger,
(e) Borrowed money and other indebtedness
create, assume, incur or otherwise permit to be outstanding any
Borrowed Money other than Permitted Borrowings, or any indebtedness in
any form other than such Permitted Borrowings and trade payables in
the ordinary course of business;
(f) Loans and Guarantees
(i) make any loans or advances or grant any credit or financing,
except for :
(A) normal trade credit reasonably granted in the ordinary
course of its or their business; and
(B) in the case of the Parent only, intra-group loans made to
Acquired Companies which are not Acceding Borrowers,
provided that :
-------------
1) the aggregate principal amount of such loans may not at
any time exceed FRF 20,000,000 (twenty million Francs);
and
78
2) simultaneously with the making of any loan, the Parent
shall grant to the Security Agent, on behalf of the
Senior Creditors, a pledge over its rights to payment
of amounts due by such Acquired Company under such
loans, as security for the obligations of the Parent
under the Facility Documents, pursuant to an agreement
substantially identical to the Subordinated Loan Pledge
Agreement the form of which is annexed to the
Subordination Agreement (an "ACQUIRED COMPANY
SUBORDINATED LOAN PLEDGE AGREEMENT"); or
(ii) give any guarantee, security or other backing for the benefit of
any third party (including any member of the Group or any
Shareholder) other than (in the case of the Parent only) a Parent
Guarantee;
(g) Capital expenditure
incur any capital expenditure other than in relation to the business
of constructing, installing, operating and utilising Cable
Broadcasting and Telecommunications Systems;
(h) Distributions
in the case of the Parent only, make or resolve to make any
distribution, dividend or other payment (in cash or in kind) to any
Shareholder or its or their Affiliates except for Permitted
Distributions;
(i) Investments
make any investment other than a Permitted Investment;
(j) Swaps and Hedging
unless otherwise agreed with the Facility Agent, enter into any
interest rate or currency swaps or other hedging arrangements except
pursuant to the Interest Rate Protection Strategy;
(k) Change of Business
make, or threaten to make, any change in the nature of its business,
interrupt such business, terminate such business, wind-up or proceed
with a voluntary winding up of any activity or business as conducted
at the date of this Agreement;
79
(l) No Subsidiaries or shareholding in Affiliates
after the date hereof and until the Final Maturity Date or thereafter
while any amounts remain outstanding under the Tranche A Facility or
the Tranche B Facility, create or permit to be created any Subsidiary
or obtain or maintain shareholdings in any Affiliate, other than as a
result of Permitted Acquisitions;
(m) Management or consulting fees; other commercial arrangements with
Shareholders and Affiliates
(i) refrain from paying management, consulting or similar fees to any
Principal Shareholder or to any other entity, which in the
aggregate represent an amount in excess of 3% (three per cent) of
the Cable Broadcasting and Telecommunications Systems Revenues
per annum;
(ii) without prejudice to the application of the previous paragraph,
it shall not undertake any liabilities to, or enter into any
agreement with, any of the Shareholders or their Affiliates or
any other member of the Group other than on arm's length terms;
(n) Amendments to Documents
amend, supplement, supersede or waive, and procure that there shall
not be amended, supplemented, superseded or waived, any term of the
Franchise Agreements, the Public Domain Occupation Agreements, the
Cable Broadcasting and Telecommunications Law Authorisations, the
Other Required Authorisations, the Consulting Agreements or the
Insurance, in any such case in a manner likely to constitute a
Material Adverse Circumstance, without the prior written consent of
the Facility Agent (upon the instruction of the Majority Banks);
(o) Bank Accounts
maintain or operate bank accounts other than the Postal Subscription
Payment Account, the General Operations Account, the Marketable
Securities Accounts, the Overdraft Account and the Prepayment Accounts
and any other account with Paribas, provided however, that it shall
have four months from the date of signature hereof in which to close
any other accounts (except for the Postal Subscription Payment
Account) it may maintain which are not held with Paribas;
(p) Permitted Future Franchise Agreement
(i) it will not
(A) sign any Proposed Future Franchise Agreement unless and
until :
80
1) such Proposed Future Franchise Agreement complies
with the Essential Principles of Permitted Future
Franchise Agreements set out in Schedule 8A, Part
A hereof and it has provided the Facility Agent
prior to the signature thereof with a certificate
of an Authorised Officer of the Parent in the form
set forth in Schedule 8A, Part B hereof to such
effect; and
2) the documents referred to in paragraph (a) of
Schedule 8A, Part C of this Agreement with respect
thereto have been delivered to the Facility Agent;
nor
(B) commence the construction of any cable radio and
television network pursuant to any Proposed Future
Franchise Agreement unless and until the documents
referred to in paragraphs (b) through (d) of Schedule
8A, Part C of this Agreement have been furnished to the
Facility Agent;
(any Proposed Future Franchise Agreement in respect of
which all of the foregoing conditions have been
satisfied being referred to in this Agreement as a
"PERMITTED FUTURE FRANCHISE AGREEMENT");
nor
(C) commence operation of such cable radio and television
network pursuant to the Permitted Future Franchise
Agreement unless it has provided to the Facility Agent
a copy of the CSA Authorisation for the operation of
such cable radio and television network;
(ii) incur any expenses whatsoever with respect to any Proposed
Future Franchise Agreement unless and until it becomes a
Permitted Future Franchise Agreement, except for reasonable
expenses relating to the obtaining of the relevant Local
Authority Approval and/or the negotiation of the relevant
Proposed Future Franchise Agreement, and any feasibility
studies carried out in connection with such Proposed Future
Franchise Agreement, up to a maximum aggregate amount which,
when taken together with the amounts referred to in Clause
10.2(q)(ii) below, does not exceed FRF 10,000,000 per
calendar year;
(q) Permitted Future Radio and Television Network Public Domain
Occupation Agreement
81
(i) it will not:
(A) sign any Proposed Future Radio and Television Network Public
Domain Occupation Agreement unless and until :
1) such Proposed Future Radio and Television Network
Public Domain Occupation Agreement and/or the Local
Authority Direct Authorisation Approval to which it
relates complies with the Essential Principles of
Permitted Future Radio and Television Network Public
Domain Occupation Agreement set out in Schedule 8B,
Part A hereof and it has provided the Facility Agent
prior to the signature thereof with a certificate of an
Authorised Officer of the Parent in the form set forth
in Schedule 8B, Part B hereof to such effect; and
2) the documents referred to in paragraph (a) of Schedule
8B, Part C of this Agreement with respect thereto have
been delivered to the Facility Agent; nor
(B) commence the construction of any cable radio and television
network pursuant to any Proposed Future Radio and Television
Network Public Domain Occupation Agreement unless and until
the documents referred to in paragraphs (b) through (d) of
Schedule 8B, Part C of this Agreement have been furnished to
the Facility Agent;
(any Proposed Future Radio and Television Network Public
Domain Occupation Franchise Agreement in respect of which
all of the foregoing conditions have been satisfied being
referred to in this Agreement as a "PERMITTED FUTURE RADIO
AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION AGREEMENT
AGREEMENT"); nor
(C) commence operation of such cable radio and television
network pursuant to the Permitted Future Radio and
Television Network Public Domain Occupation Agreement unless
it has provided to the Facility Agent a copy of the CSA
Authorisation for the operation of such cable radio and
television network;
(ii) incur any expenses whatsoever with respect to any Proposed Future
Radio and Television Network Public Domain Occupation Agreement
unless and until it becomes a Permitted Future Radio and
Television Network Public Domain Occupation Agreement,
82
except for reasonable expenses relating to the obtaining of the
relevant Local Authority Approval and/or the negotiation of the
relevant Proposed Future Radio and Television Network Public
Domain Occupation Agreement, and any feasibility studies carried
out in connection with such Proposed Future Radio and Television
Network Public Domain Occupation Agreement, up to a maximum
aggregate amount which, when taken together with the amounts
referred to in Clause 10.2(p)(ii)above, does not exceed FRF
10,000,000 per calendar year;
11 COMMERCIAL AND FINANCIAL COVENANTS
----------------------------------
11.1 Year-to-Date EBITDA to 1998 Business Plan Projection
The Parent shall ensure that the actual amount of Year-to-Date EBITDA will
on every Quarter Day up to 31st December 2002 be no less than the
following:
Quarter Day Minimum Year-to-
Date EBITDA
30th September 1998 FRF -12,000,000
31st December 1998 FRF -20,500,000
31st March 1999 FRF -8,050,000
30th June 1999 FRF -15,200,000
30th September 1999 FRF -20,650,000
31st December 1999 FRF -23,000,000
31st March 2000 FRF - 100,000
30th June 2000 FRF 4,160,000
30th September 2000 FRF 11,040,000
31st December 2000 FRF 22,080,000
31st March 2001 FRF 12,400,000
30th June 2001 FRF 27,600,000
30th September 2001 FRF 45,600,000
31st December 2001 FRF 67,600,000
83
31st March 2002 FRF 24,400,000
30th June 2002 FRF 51,600,000
30th September 2002 FRF 83,200,000
31st December 2002 FRF 119,200,000
The Parent shall provide, in the Quarterly Management Accounts, evidence
satisfactory to the Facility Agent of the fulfilment of this covenant on
each Quarter Day during the Tranche A Availability Period.
11.2 Bank Debt to Capitalisation
The Parent will ensure that at all times until the Final Maturity Date,
total Bank Debt shall not exceed the following percentage of
Capitalisation:
PERIOD PERCENTAGE
from the date of this Agreement up to and including 50.0%
31st December, 1998
from 1st January, 1999 to 31st December, 1999 55.0%
from 1st January, 2000 to 31st January 2000 60.0%
from 1st January 2001 onwards 65.0%
In the case where, after the date of this Agreement, and until all monies
outstanding to the Banks under the Facility have been paid in full by the
Parent, or any relevant Acceding Borrower, any Shareholder is obliged, or
of its own volition opts to increase its Shareholder Contribution by way of
a Subordinated Loan, such Subordinated Loan will be fully subordinated to
the rights of the Senior Creditors under the Facility Documents, as
required under the Subordination Agreement.
Interest (if any) which shall accrue on such Subordinated Loan, will not be
paid by the Parent to the Shareholder in question, but shall be capitalised
annually, except as otherwise expressly provided in the Subordination
Agreement. For the purpose of determining the ratio of Bank Debt to
Capitalisation set out above, accrued and capitalised interest on any
Subordinated Loan will not be taken into account.
11.3 Pro-forma Debt Service
84
The Parent will ensure that on each Periodic Financial Ratio Test Date
falling within the periods set out below, the ratio of Annualised EBITDA to
Pro-Forma Debt Service shall be not less than the following:
PERIOD ANNUALISED EBITDA TO PRO-FORMA
DEBT SERVICE
from 1st January, 2001 to and
including 31st December, 2001 1.5:1
from 1st January, 2002 onwards 1.1:1
11.4 Interest Coverage
The Parent will ensure that, on each Periodic Financial Ratio Test Date
falling within the periods set out below, the ratio of Annualised EBITDA to
Interest Payments shall be not less than the following ratios:
PERIOD ANNUALISED EBITDA TO
INTEREST PAYMENTS
from 1st January, 2000 to and 1.0:1
including 31st December, 2000
from 1st January, 2001 to and 2.0:1
including 31st December, 2001
from 1st January, 2002 to and 3.0:1
including 31st December, 2002
from 1st January, 2003 onwards 4.0:1
11.5 Bank Debt to Annualised EBITDA
The Parent will ensure that, on each Periodic Financial Ratio Test Date
falling within the periods set out below, the ratio of Bank Debt to
Annualised EBITDA shall not exceed the following ratios:
PERIOD BANK DEBT TO ANNUALISED EBITDA
from 1st January, 2001 to and 8.0:1
including 31st December, 2001
from 1st January, 2002 to and 5.5:1
including 31st December, 2002
from 1st January, 2003 to and 3.5:1
85
including 31st December, 2003
from 1st January, 2004 onwards 3.0:1
12 PUBLIC OFFERING - FLOTATION
---------------------------
12.1 Condition for making a Public Offering
None of the Borrowers shall initiate, promote or undertake, or consent to
the initiation, promotion or undertaking of, any Public Offering if the
Public Offering would result in a violation of the provisions of Clause
13.1(w).
12.2 Application of proceeds of Public Offering
The portion of the IPO Proceeds necessary to reduce amounts outstanding
under the Facility so that the ratio of Bank Debt to Annualised EBITDA is
less than 4.0:1 (the "REQUIRED PORTION OF THE IPO PROCEEDS") shall be
applied first to repayment of amounts outstanding under the Tranche A
Facility in the manner referred to in Clause 5.5(b) above.
12.3 Public Offering by Subsidiaries or Affiliates of United Pan-European
Communications
For the avoidance of doubt, it is expressly recognised and agreed that the
Subordination Agreement contains provisions pursuant to which the UPC
Parties (as defined in the Subordination Agreement) agree that proceeds of
a Public Offering of a Subsidiary or Affiliate of UPC, a substantial
portion of the assets of which consist, directly or indirectly, in the
shares in the Parent or any relevant Acceding Borrower, will be applied in
the same manner as set forth in Clause 12.2 hereof.
13 DEFAULT
-------
13.1 Events of Default
Each of the events and circumstances set out in this Clause 13 is an Event
of Default (whether or not caused by any reason whatsoever outside the
control of the Parent or following a Permitted Acquisition, outside the
control of any other member of the Group or any other person).
(a) Non-payment
any Borrower fails to pay any sum due from it under this Agreement or
any Facility Document in the currency, at the time and in the manner
stipulated therein (unless the Facility Agent is satisfied that such
non-payment is due solely to administrative or technical delays in the
transmission of funds and payment is made within three (3) Banking
Days of its due date); or
86
(b) Breach of obligation concerning Distributions
the Parent violates the covenant contained in Clause 10.2(h) hereof;
or
(c) Breach of other obligations
any Borrower or any other member of the Group commits any breach of or
omits to observe any of the obligations or undertakings expressed to
be assumed by it hereunder or under any of the Facility Documents
(other than failure to pay any sum when due) and any such breach or
omission which is capable of remedy is not remedied within thirty (30)
days of the Facility Agent giving notice of such default to such
Borrower requiring such default to be remedied; or
(d) Misrepresentation
any representation or warranty made or deemed to be made or repeated
by or in respect of any Borrower or any other member of the Group
herein or in or pursuant to any Facility Document or in any notice,
certificate or statement referred to in or delivered under any
Facility Document 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 remedy shall not have been applied within
thirty (30) days of the Facility Agent giving notice of such act or
circumstance and requiring such default to be remedied; or
(e) Challenge to security
any Security Document is not or ceases to be effective or any Borrower
shall in any way challenge, or any proceedings shall in any way be
brought to challenge the prior status of the Encumbrances created by
the Security Documents or the validity or enforceability of the
Security Documents; or
(f) Cross-default
any Borrowed Money of the Parent or any member of the Group in an
aggregate amount of FRF 7,500,000 or greater (or its equivalent in
any other currency) 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 any Borrowed Money of the
Parent or any member of the Group in an aggregate amount of FRF
7,500,000 or greater (or its equivalent in any other currency) 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
any creditor of the Parent or any member of the Group becomes entitled
to declare any Borrowed Money
87
of the Parent or any member of the Group in an aggregate amount of FRF
7,500,000 or greater (or its equivalent in any other currency) so due
and payable or to require cash collateralisation or security for any
Borrowed Money or any facility or commitment available to the Parent
or any member of the Group for any such Borrowed Money is withdrawn,
suspended or cancelled by reason of any default (however described) of
the Parent or any member of the Group; or
(g) Failure to Pay Taxes
The Parent or any member of the Group fails to pay on the relevant due
date any Taxes or social security contributions or other similar
contributions except where the Parent or such member of the Group has
reasonably contested such payment in good faith and the Parent has
notified the Facility Agent of the basis for such contestation; or
(h) Unlawfulness
it becomes unlawful at any time for any Borrower, any Subordinated
Creditor or any member of the Group to perform any of their respective
material (in the opinion of the Facility Agent upon instruction of the
Majority Banks) obligations under this Agreement or the Security and
Subordination Documents or any of the material (in the opinion of the
Facility Agent upon instruction of the Majority Banks) obligations of
any Borrower, any Subordinated Creditor or any member of the Group
under this Agreement or the Security and Subordination Documents
becomes unenforceable in any way or there ceases to be security over
the relevant property or assets of such Borrower as intended and
created by the Security Documents; or
(i) Legal process
any judgement or order made against the Parent or any member of the
Group ordering it to pay FRF 15 million or greater is not stayed
within thirty (30) days or a creditor attaches or takes possession of,
or a distress, execution, sequestration, diligence or other process is
levied or enforced upon or sued out against, any part of the
undertaking, assets, rights or revenues of the Parent or any member of
the Group having a value equal to such amounts in such circumstances
and is not discharged within thirty (30) days; or
(j) Insolvency - France
the Parent or any member of the Group (i) admits in writing its
inability to pay its debts generally as they become due; (ii) declares
to the court such inability (declaration de cessation des paiements);
(iii) applies for or takes any corporate action approving any
voluntary liquidation (liquidation volontaire); (iv) applies for the
appointment of a conciliator (conciliateur), within the meaning of
French law Xx. 00-000 xx 0xx
00
Xxxxx, 0000; (v) enters into an amicable settlement (accord amiable)
with its creditors; (vi) ceases its payments (cessation de paiements)
for the purposes of Article 3 of the French bankruptcy law No. 85-98
of 25th January, 1985; (vii) has a judgement issued in respect of its
judicial reorganisation (redressement judiciaire) and the
administrateur judiciaire named in connection with such proceedings
does not (or is deemed not to) opt to continue performance of this
Agreement; or (viii) has a judgement issued in respect of its judicial
liquidation (liquidation judiciaire) pursuant to French law No. 85-98
of 25th January, 1985, or pursuant to such law, for the transfer of
the whole or part of its business (cessation totale ou partielle de
l'entreprise); or
(k) Insolvency - the Netherlands
any Principal Shareholder 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
(l) Composition
any steps are taken or negotiations commenced, by the Parent, a
Principal Shareholder or any member of the Group or by their
respective creditors with a view to proposing any kind of composition,
compromise or arrangement involving such company and any group or
class of its creditors generally; or
(m) Winding-up
any petition is presented and is not discharged within 14 days or
other step is taken for the purpose of winding up the Parent, any
Principal Shareholder or any member of the Group or an order is made
or resolution passed for the purpose of the appointment of an
administrator of the Parent, any Principal Shareholder or any member
of the Group, or the Facility Agent reasonably believes that any such
petition or other step is imminent or an administration order is made
in relation to the Parent, any Principal Shareholder or any member of
the Group; or
(n) Analogous proceedings
there occurs, in relation to the Parent, any Principal Shareholder or
any member of the Group, in any country or territory in which any of
them carries on business or the jurisdiction of whose courts any part
of their respective assets is subject, any event which corresponds
with, or has an effect equivalent to, any of those mentioned in
Clauses 13.1(j) to 13.1(n); or
(o) Cessation of business
89
the Parent or any member of the Group ceases, or threatens to cease,
to carry on all or a substantial part of its business; or
(p) Failure of subordination
(i) any Subordinated Creditor commits any breach of or omits to
observe any of the obligations or undertakings expressed to be
assumed by it under the Subordination Agreement and in respect
of any such breach or omission which, in the opinion of the
Facility Agent (acting on the instructions of the Majority
Banks) is capable of remedy, such action as the Facility Agent
may require shall not have been taken within thirty (30) days of
the Facility Agent notifying such Subordinated Creditor thereof
and of such required action; or
(ii) any representation or warranty made or deemed to be made or
repeated by or in respect of any Subordinated Creditor in or
pursuant to the Subordination Agreement 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; or; or
(iii) any Subordinated Creditor is not or ceases to be bound by the
Subordination Agreement; or
(iv) any payment due from the Parent to a Subordinated Creditor under
a Subordinated Loan is not or ceases to be subordinated to the
amounts owing under the Facility Documents in accordance with
the terms of the Subordination Agreement; or
(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 the Subordination Agreement; or
(q) Security Documents:
(i) any Borrower or any Shareholder (a "SECURITY PROVIDER") commits
any breach of or omits to observe any of its obligations or
undertakings expressed to be assumed by it under any Security
Document and in respect of any such breach or omission which is
capable of remedy, such action as the Security Agent may require
shall not have been taken within 30 days of the Security Agent
notifying such Security Provider thereof of such required
action; or
(ii) any representation or warranty made or deemed to be made or
repeated by or in respect of any Security Provider in or
pursuant to any Security Document is or proves to have been
incorrect or
90
misleading in any material respect on the date on which it was
made or deemed to be made or repeated; or
(iii) any Security Provider is not or ceases to be bound by any
Security Document; or
(iv) any Security Document is not or ceases to constitute a valid
security interest over the relevant assets of the relevant
Security Provider in accordance with its terms; or
(v) any Security Provider or any liquidator, administrator or
administrative or other receiver (or similar officer) of any
Security Provider takes steps to contest any Security Document
and/or encumbrance effected by a Security Document; or
(r) Seizure
all or a material part of the undertakings, assets, rights or revenues
of or shares or other ownership interests in the Parent or any other
member of the Group are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any government; or
(s) Material Contracts
(i) any Material Contract is terminated, suspended, revoked,
superseded, varied or cancelled or otherwise ceases to be in
full force and effect unless services of a similar nature to
those provided pursuant to such Material Contract are at all
times provided to the Parent (or, following any Permitted Share
Acquisition, the relevant other member of the Group) on similar
commercial terms or on terms no less beneficial to the Parent or
such member of the Group and any such termination, suspension,
revocation, cancellation or cessation would constitute a
Material Adverse Circumstance; or
(ii) any alteration or variation is made to any term of any Material
Contract which would constitute a Material Adverse Circumstance;
or
(iii) any party breaches any term of or repudiates any of its
obligations under any of the Material Contracts where such
breach or repudiation would constitute a Material Adverse
Circumstance; or
(t) Cable Broadcasting Law Authorisations
Provided that a Cable Broadcasting Law Authorisation is still
required:
(i) The Parent (or, following any Permitted Share Acquisition, any
other member of the Group) fails to maintain or comply with a
Cable Broadcasting Law Authorisation; or
91
(ii) Any Cable Broadcasting Law Authorisation is in whole or in part
terminated, suspended, withdrawn, cancelled, or revoked
(including, without limiting the generality of the foregoing,
declared illegal or unenforceable or nullified by a decision of
an administrative court) or does not remain in full force and
effect or otherwise expires and is not renewed prior to its
expiration; or
(iii) Any event occurs which is reasonably likely to give rise to such
revocation, termination, withdrawal, cancellation or suspension
of any Cable Broadcasting Law Authorisation (without
replacement) in circumstances where the Parent (and following a
Permitted Acquisition, any member of the Group) is unable to
demonstrate to the reasonable satisfaction of the Majority Banks
within thirty (30) days of such event occurring that such
termination, suspension, withdrawal, cancellation or revocation
will not occur unless the Parent (and following a Permitted
Acquisition, any member of the Group) has demonstrated to the
reasonable satisfaction of the Majority Banks that it is taking
steps (agreed with the Facility Agent in accordance with Clause
10.1(c)(iii) to mitigate the risk of revocation, termination,
withdrawal, cancellation or suspension of any Cable Broadcasting
Law Authorisation (whether in whole or in part); or
(iv) Any Cable Broadcasting Law Authorisation is amended,
supplemented, superseded;
and in the reasonable opinion of the Facility Agent (acting upon
instruction of the Majority Banks) this constitutes a Material Adverse
Circumstance; or
(u) Telecommunications Law Authorisations
(i) The Parent (or, following any Permitted Share Acquisition, any
other member of the Group) fails to maintain or comply with a
Telecommunications Law Authorisation; or
(ii) Any Telecommunications Law Authorisation is in whole or in part
terminated, suspended, withdrawn, cancelled, or revoked
(including, without limiting the generality of the foregoing,
declared illegal or unenforceable or nullified by a decision of
an administrative court) or does not remain in full force and
effect or otherwise expires and is not renewed prior to its
expiration (it being specified that such provision does not
apply to provisional authorisations (autorisations
experimentales); and it being further specified that no such
termination, suspension, withdrawal, cancellation or revocation
shall constitute an Event of Default to the extent that it is
the subject of an administrative appeal (recours administratif)
and such appeal has the effect of suspending the application
thereof (effet suspensif));
92
(iii) Any event occurs which is reasonably likely to give rise to such
revocation, termination, withdrawal, cancellation or suspension
of any Telecommunications Law Authorisation (without
replacement) in circumstances where the Parent (and following a
Permitted Acquisition, any member of the Group) is unable to
demonstrate to the reasonable satisfaction of the Majority Banks
within thirty (30) days of such event occurring that such
termination, suspension, withdrawal, cancellation or revocation
will not occur unless the Parent (and following a Permitted
Acquisition, any member of the Group) has demonstrated to the
reasonable satisfaction of the Majority Banks that it is taking
steps (agreed with the Facility Agent in accordance with Clause
10.1(c)(iii) to mitigate the risk of revocation, termination,
withdrawal, cancellation or suspension of any Telecommunications
Law Authorisation (whether in whole or in part); or
(iv) Any Telecommunications Law Authorisation is amended,
supplemented, superseded and such amendment, supplement or
suppression constitutes a Material Adverse Circumstance; or
(v) Other Required Authorisations and Contracts
(i) The Parent (or, following any Permitted Share Acquisition, any
other member of the Group) fails to maintain or comply with any
Other Required Authorisation or Contract; or
(ii) any Other Required Authorisation or Contract is in whole or in
part terminated, modified, withdrawn, suspended or revoked or
does not remain in full force and effect or otherwise expires
and is not renewed prior to its expiration; or
(iii) any event occurs which is reasonably likely to give rise to the
revocation, termination or suspension of any Other Required
Authorisation or Contract (without replacement) in such
circumstance where the Parent (and following a Permitted
Acquisition, any member of the Group) is unable to demonstrate
to the reasonable satisfaction of the Majority Banks within 30
days of such event occurring that such termination, suspension
or revocation will not occur,
and in the reasonable opinion of the Facility Agent (acting upon
instruction of the Majority Banks) this constitutes a Material Adverse
Circumstance; or
93
(w) Change in control of the Parent
UPC ceases to own, directly or indirectly, in aggregate an interest in
excess of 51 per cent in the Parent or ceases to control the
appointment of a controlling majority of members of the Board of
Directors (Conseil d'Administration) of the Parent, prior to such time
as the ratio of Bank Debt to Annualised EBITDA has been less than
3.0:1 as at the Quarter Days falling at the end of the two immediately
preceding Quarterly Periods; or
(x) Public announcement of abandonment.
the Parent, any Principal Shareholder or any member of the Group makes
a public announcement of the abandonment of the cable radio and
television networks and/or the telecommunications networks comprising
the Cable Broadcasting and Telecommunications Systems and (in the case
of any member of the Group other than the Parent), such announcement
constitutes a Material Adverse Circumstance; or
(y) Total Loss
the occurrence of an event resulting in a total loss or destruction or
damage beyond repair to a substantial portion of the Cable
Broadcasting and Telecommunications Systems, whether or not such total
loss is covered by the Insurance, and in the reasonable opinion of the
Facility Agent (acting upon instruction of the Majority Banks) this
constitutes a Material Adverse Circumstance; or
(z) Material Adverse Circumstance
any other event occurs or circumstances arise which constitute a
Material Adverse Circumstance.
13.2 Acceleration
At any time after the happening of any Event of Default, so long as the
same is continuing unremedied and unwaived, the Facility Agent may, and if
so requested by the Majority Banks shall, without prejudice to any other
rights of the Banks and without any need to first obtain a relevant
judgement, by written notice to the Parent (and following a Permitted
Acquisition, any member of the Group) declare that:
(a) an Event of Default has occurred;
(b) the obligation of each Bank to make its Commitment available is
terminated; and/or
(c) (subject, in the case of the Event of Default referred to in Clause
13.1(j), to the provisions of the French bankruptcy law No. 85-98 of
25th January, 1985), all RCF Advances or the Term Loan (as the case
may
94
be), all Overdraft Utilisations and all interest and commitment fees
accrued and all other sums payable under this Agreement have become
due and payable.
Consequently, the Facility Agent (and/or, as the case may be, the Security
Agent) may, and shall, if so requested by the Majority Banks, without
prejudice to any other rights of the Banks and without any need to first
obtain a relevant judgement:
(i) reduce the Commitments to zero forthwith;
(ii) require that all RCF Advances or the Term Loan (as the case may
be), all Overdraft Utilisations and all interest and commitment
fees accrued and all other sums payable under this Agreement
which have become due and payable, be paid, immediately, or on
demand or otherwise in accordance with the terms of such notice;
and
(iii) shall exercise any of the rights granted to the Facility Agent,
the Security Agent or the Banks under the Security and
Subordination Documents.
14 INDEMNITIES
-----------
14.1 Currency indemnity
If any sum due from any Borrower under this Agreement or any order or
judgement given or made in relation hereto has to be converted from the
currency (the "FIRST CURRENCY") in which the same is payable under this
Agreement or under such order or judgement into another currency (the
"SECOND CURRENCY") for the purpose of (a) making or filing a claim or proof
against any Borrower, (b) obtaining an order or judgement in any court or
other tribunal or (c) enforcing any order or judgement given or made in
relation to this Agreement, each Borrower agrees to indemnify and hold
harmless the Facility Agent, the Arranger, the Security Agent, and each
Bank 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
prevailing rate or rates of exchange on said date and in such amount at
which the first currency can be converted into the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of any
such order, judgement, claim or proof. Any amount due from any Borrower
under this Clause 14.1 shall be due as a separate debt and shall not be
affected by judgement 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.
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14.2 Other indemnities
Each Borrower shall on demand indemnify each Beneficiary, without prejudice
to any of their other rights under this Agreement, against (i) in respect
of paragraphs (a),(b) and (d) below any losses (including loss of Margin if
any), (ii) in respect of paragraph (c) below, breakage costs and (iii) in
all cases, charges or expenses which such Beneficiary sustains or incurs as
a direct consequence of:
(a) the occurrence of any Default; or
(b) any default in payment by such Borrower of any sum under this
Agreement when due; or
(c) any repayment or prepayment of an Advance or payment of an overdue
amount being made by such Borrower otherwise than on its Interest
Payment Date; or
(d) (other than by reason of default by any Beneficiary) any Advance not
being made (or not being made in full) to such Borrower after a
Drawdown Notice or Rollover Notice has been given pursuant to Clause 4
(Advances).
A certificate of such Beneficiary as to the amount of any such loss or
expense made in good faith shall be prima facie evidence in the absence of
manifest error.
15 UNLAWFULNESS AND INCREASED COSTS; MITIGATION
--------------------------------------------
15.1 Unlawfulness
------------
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Advances, to effect Overdraft Utilisations or to maintain its
Commitment, such Bank shall promptly, through the Facility Agent, notify
the relevant Borrower whereupon (a) such Bank's Commitment shall be reduced
to zero and (b) the relevant Borrower shall be obliged to prepay such
Bank's prorata portion of all outstanding Advances or Overdraft
Utilisations on the earlier of (i) the date falling 30 days after the date
of receipt by the relevant Borrower of the relevant notice pursuant to this
Clause or (ii) the latest date permitted by the relevant law or regulation.
Without prejudice to the reduction of such Bank's Commitment to zero or the
obligations of the relevant Borrower to make such repayment, the relevant
Borrower, the Facility Agent and such Bank shall negotiate for a period not
exceeding 14 days with a view to such Bank reinstating its Commitment
and/or funding or maintaining its Advances or Overdraft Utilisations in
whole or in part in a manner which is not unlawful.
15.2 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, directive, request or
requirement (whether or not having the force of law, but, if not having the
force of law, with
96
which the relevant Beneficiary 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 Beneficiary to Taxes or change the basis of Taxation of
any Beneficiary with respect to any payment under this Agreement
(other than Taxes or Taxation on the overall net income, profits or
gains of such Beneficiary imposed in the jurisdiction in which its
principal or lending office under this Agreement is located and other
than Taxes currently payable by such Beneficiary on amounts received
by it under this Agreement but only to the extent so payable at the
date hereof); and/or
(b) increase the cost to, or impose an additional cost on, any Beneficiary
or its holding company in making or keeping available all or part of
such Beneficiary's Commitment or maintaining or funding the Advances
made by such Beneficiary or otherwise in having entered into, or
performing or maintaining and/or funding its (or such Beneficiary's)
obligations under any Facility Document; and/or
(c) reduce the amount payable or the effective return to any Beneficiary
under this Agreement; and/or
(d) reduce any Beneficiary'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 Beneficiary's
obligations under this Agreement; and/or
(e) require any Beneficiary or its holding company to make any additional
payment or forego (to a greater extent than at the date hereof) a
return calculated by reference to or on any amount received or
receivable by such Beneficiary under this Agreement; and/or
(f) require any Beneficiary or its holding company to incur or sustain a
loss (including a loss of future potential profits) additional to that
incurred or sustained at the date hereof by reason of being obliged to
deduct a greater part of such Beneficiary's Commitment or Advances or
Overdraft Utilisations from its capital for regulatory purposes, than
is required to be deducted at the date hereof
then and in each such case (but subject to Clauses 15.3 and 15.4):
(i) such Beneficiary shall notify the Parent through the Facility
Agent in writing of such event promptly upon its becoming aware
of the same; and
(ii) the Parent undertakes to pay on demand, made at any time, whether
or not such Beneficiary's Advances or Overdraft Utilisations have
been repaid, to the Facility Agent for the
97
account of such Beneficiary the amount which such Beneficiary
specifies (in a certificate setting forth the basis of the
computation of such amount but not including any matters which
such Beneficiary or its holding company regards as confidential)
is required to compensate such Beneficiary and/or (if and to the
extent that such holding company has passed the cost of the same
on to such Beneficiary) its holding company for such liability to
Taxes, increased or additional cost, reduction, payment or
foregone return. Nothing in this Clause 15.2 shall oblige any
Beneficiary (or any holding company of such Beneficiary), the
Arranger, the Facility Agent or the Security Agent to disclose
any confidential information relating to the organisation of its
affairs.
For the purposes of this Clause 15.2, "HOLDING COMPANY" means, in
relation to a Beneficiary, the company or entity (if any) within the
consolidated supervision of which such Beneficiary is included.
15.3 Exceptions
----------
Nothing in Clause 15.2 shall entitle any Beneficiary 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 the subject of an additional payment under Clause 8.7; or
(b) 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
(c) arises as a result of a breach by such Beneficiary 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 Beneficiary 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 this Clause 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).
98
15.4 Mitigation
----------
If, in respect of any Beneficiary, circumstances arise which would, or
would upon the giving of notice, result in:
(a) any Borrower being required to make an increased payment to such
Beneficiary pursuant to Clause 8.7;
(b) the reduction of a Bank's Commitment to zero or a Borrower being
required to prepay such Bank's Advances or Overdraft Utilisations
pursuant to Clause 15.1 (Unlawfulness); or
(c) the Parent being required to make a payment to such Beneficiary to
compensate such Beneficiary for an increased cost, reduction, payment
or foregone return pursuant to Clause 15.2,
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Parent or the relevant Borrower under those Clauses,
such Beneficiary shall, in consultation with the Facility Agent, endeavour
to take such reasonable steps (and/or in the case of Clause 15.2 and where
such increased or additional cost, reduction, payment, return or loss is
that of its holding company, endeavour to procure that its holding company
takes reasonable steps) as may be open to it to mitigate or remove such
circumstances including (without limitation) the transfer of its rights and
obligations under this Agreement to another bank or financial institution
acceptable to the Parent or a change of lending office of such Beneficiary
to one acceptable to the Parent unless, in either case, to do so might (in
the opinion of such Beneficiary) be prejudicial to such Beneficiary or be
in conflict with such Beneficiary's general banking policies or involve
such Beneficiary in expense or an increased administration burden or
require it (or its holding company) to disclose any information as to its
banking policies or other matters which it regards, in its sole discretion,
as confidential or commercially sensitive.
Any costs and expenses incurred by the Facility Agent and any Beneficiary
pursuant to this Clause 15.4 shall be for the account of and paid by the
Parent or any relevant Acceding Borrower within ten (10) Banking Days after
receipt of a demand specifying the same in reasonable detail.
16 ARRANGER, FACILITY AGENT AND SECURITY AGENT
-------------------------------------------
16.1 Appointment of Agents
---------------------
Each Bank (including, for the avoidance of doubt, each Interest Rate
Protection Bank) appoints each Agent as its agent for the purposes of this
Agreement and authorises the relevant Agent in such capacity:
(a) to execute all documents as may be approved by the Majority Banks for
execution by the relevant Agent; and
99
(b) to take such action on such Bank's behalf and to exercise such rights,
remedies, powers and discretions as are specifically delegated to the
relevant Agent by this Agreement or (as the case may be) the Security
and Subordination 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 Facility
Agent, the Security Agent or the Arranger shall, however, have any
duties, obligations or liabilities to the Banks beyond those expressly
stated in this Agreement and/or the Security and Subordination
Documents. Each Agent's and the Arranger's duties are solely of a
mechanical and administrative nature.
Notwithstanding that the Facility Agent and the Security Agent may from
time to time be the same entity, the Facility Agent and the Security Agent
have entered into this Agreement in their separate capacities as facility
agent for the Banks under and pursuant to this Agreement and the
Subordination Agreement and as security agent for the Beneficiaries to hold
the security created or to be created by the Security Documents on the
terms set out therein. However, where this Agreement provides for the
Facility Agent to communicate with or provide instructions to the Security
Agent, while the Facility Agent and the Security Agent are the same entity,
it will not be necessary for there to be any such formal communications or
instructions notwithstanding that this Agreement provides in certain cases
for the same to be in writing.
16.2 Agent's actions
---------------
Any action taken by the relevant 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.
16.3 Facility Agent's duties
-----------------------
The Facility Agent shall:
(a) promptly notify each Bank of the contents of each notice, certificate
or other document received by the Facility Agent from the Parent or
any other member of the Group under or pursuant to this Agreement;
(b) consult with the Banks as to whether and, if so, how a discretion
vested in the Facility Agent is, either in any particular instance or
generally, to be exercised but so that this shall not prevent the
Facility 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 and the subordination created by the Subordination
Agreement so long as the Facility Agent promptly notifies the Banks
subsequently of such exercise; and
100
(c) (subject to the other provisions of this Clause 16) 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 Facility Agent or Security Agent, as the Majority Banks may
reasonably direct.
16.4 Agents' rights
--------------
Each of the Facility Agent and the Security 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 relevant 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 any legal proceedings arising out of or in
connection with this Agreement and/or the Security and Subordination
Documents until it has been indemnified and/or secured to its
satisfaction against any and all costs, expenses or liabilities
(including legal fees) which it would or might incur as a result;
(d) deem and treat (i) each Bank as the person entitled to the rights
appertaining to the Advances and the Overdraft Utilisations made by
such Bank for all purposes of this Agreement and the Security and
Subordination Documents and (ii) the office set opposite the name of
each Bank in part A and part B of schedule 1 as such Bank's lending
office unless and until a written notice of change of lending office
shall have been received by the Facility Agent; and the Facility Agent
may act upon any such notice unless and until the same is superseded
by a further such notice;
(e) rely as to matters of fact which might reasonably be expected to be
within the knowledge of any Borrower upon a certificate signed by an
Authorised Officer on behalf of such Borrower; 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.
16.5 No liability of Arranger, Facility Agent or Security Agent
----------------------------------------------------------
None of the Arranger, the Facility Agent or the Security Agent shall:
101
(a) be obliged to request any certificate or opinion hereunder or under
any provision of the Security and Subordination Documents or to make
any enquiry as to the use of the proceeds of the Facility unless (in
the case of the Facility Agent) so required in writing by any Bank, in
which case the Facility Agent shall promptly make the appropriate
request to the relevant Borrower; or
(b) be obliged to make any enquiry as to any breach or default by any
Borrower 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 Facility Agent) the Facility Agent has actual knowledge thereof
or has been notified in writing thereof by a Bank, in which case the
Facility 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 Borrower or any Shareholder pursuant to this Agreement or
any of the Security and Subordination 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 and Subordination 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 and Subordination
Documents unless caused by its gross negligence or wilful misconduct.
For the purposes of this Clause 16 neither the Facility 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 Facility 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 Facility Agent or the Security Agent,
as the case may be, for the Parent any Shareholder or any other person
which may be a trade competitor of the Parent or any of the Shareholders or
any of their respective Subsidiaries or Affiliates or may otherwise have
commercial interests similar to those of the Parent or any of the
Shareholders or any of their respective Subsidiaries or Affiliates.
102
16.6 Non-reliance on Arranger, Security Agent or Facility Agent
----------------------------------------------------------
Each Bank acknowledges, by virtue of its execution of this Agreement that
it has not relied on any statement, opinion, forecast or other
representation made by the Arranger, the Security Agent or the Facility
Agent to induce it to enter into this Agreement and that it has made and
will continue to make, without reliance on the Facility Agent, the Security
Agent or the Arranger and based on such documents as it considers
appropriate, its own appraisal of the creditworthiness of the Parent or any
Acceding Borrower, the other members of the Group and the Shareholders and
its own independent investigation of the financial condition, prospects and
affairs of the Parent or any Acceding Borrower, the other members of the
Group and the Shareholders in connection with the making and continuation
of the Facility under this Agreement. None of the Arranger, the Security
Agent or the Facility 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 Parent or any Acceding Borrower, the
other members of the Group and/or Shareholders whether coming into its
possession before the making of any Advance or at any time or times
thereafter.
16.7 No Responsibility on Arranger, Facility Agent or Security Agent for
-------------------------------------------------------------------
Parent's, any Acceding Borrower's, any other Member of the Group's or any
-------------------------------------------------------------------------
Shareholder's performance
-------------------------
None of the Arranger, the Security Agent or the Facility Agent shall have
any responsibility or liability to any Bank:
(a) on account of the failure of the Parent, any Acceding Borrower, any
other member of the Group or any Shareholder to perform its
obligations under this Agreement or any other Facility Document; or
(b) for the financial condition of the Parent, any Acceding Borrower, any
other member of the Group or any Shareholder; or
(c) for the completeness or accuracy of any statements, representations or
warranties in this Agreement, any other Facility Document or the
Information Memorandum or any document delivered under this Agreement
or any other Facility Document; or
(d) for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement or any
other Facility Document or of any certificate, report or other
document executed or delivered under this Agreement or any other
Facility Document; or
(e) otherwise in connection with the Facility or its negotiation or for
acting (or, as the case may be, refraining from acting) in accordance
with the instructions of the Majority Banks.
103
16.8 Documents and professional advice
---------------------------------
The Arranger, the Facility Agent and the Security 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 Arranger's or the
relevant Agent's employment).
16.9 Other dealings
--------------
The Arranger, the Facility Agent and the Security 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 Parent or any of its
Subsidiaries or Affiliates (including any Acceding Borrower) as if it were
not the Arranger, the Facility Agent or the Security Agent, as the case
may be.
16.10 Rights of Agent as Bank; no partnership
---------------------------------------
With respect to its own Commitment (if any) the Arranger, the Facility
Agent and the Security Agent shall have the same rights and powers under
this Agreement and the Security and Subordination 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 and
Subordination Documents and the term "BANKS" shall, unless the context
clearly otherwise indicates, include each of the Facility Agent and the
Security 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.
16.11 Amendments; waivers
-------------------
(a) Subject to Clause 16.11(b), the Facility Agent or (in the case of the
Security and Subordination Documents) the Security 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 or any of the Security and
Subordination Documents with the relevant parties thereto and/or (ii)
vary or waive breaches of, or defaults under, or otherwise excuse
performance of, any provision of this Agreement or any of the Security
and Subordination Documents by any of the parties thereto. Any such
action so authorised and effected by the Facility Agent or the
Security Agent shall be documented in such manner as the relevant
Agent shall (with the approval of the Majority Banks) determine, shall
be promptly notified to the Banks by the relevant Agent and (without
prejudice to the generality of Clause 16.2) shall be binding on all
the Banks.
104
(b) Except with the prior written consent of all the Banks, the Facility
Agent shall not have authority on behalf of the Banks (A) to agree
with the Parent 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 Borrower, 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 fee or other amount payable by any Borrower under
this Agreement, (iii) change the currency in which any amount is
payable by any Borrower under this Agreement, (iv) increase any Bank's
Commitment, (v) extend the Tranche A Availability Period or the
Tranche B Availability Period, (vi) change the definition of "Majority
Banks" in Clause 1.2, (vii) change any provision of this Agreement
which expressly or implicitly requires the approval or consent of all
the Banks such that the relevant approval or consent may be given
otherwise than with the agreement of all the Banks, (viii) change the
order of distribution under Clause 8.13, (ix) change Clause 20.1, (x)
change this Clause 16.11 or (B) release the Parent or any Acceding
Borrower, or any Shareholder 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.
(c) For the purposes of this Clause 16.11 it is expressly agreed and
acknowledged that the execution of any instrument pursuant to a
further assurance provision in the Security and Subordination
Documents shall not constitute an amendment or modification to, or
variation of, this Agreement or any of the Security Documents.
16.12 Reimbursement and indemnity by Banks
------------------------------------
Each Bank shall reimburse the Arranger and the relevant Agent (rateably in
accordance with such Bank's Commitment), to the extent that the Arranger
or the relevant Agent is not reimbursed by the Parent, for the costs,
charges and expenses incurred by the Arranger and the relevant Agent in
connection with the execution of this Agreement and the Security and
Subordination 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 and
Subordination Documents including (in each case) the fees and expenses of
legal or other professional advisers. Each Bank shall on demand indemnify
the relevant Agent (rateably in accordance with its Commitment) against
all liabilities, damages, costs and claims whatsoever incurred by the
relevant Agent in connection with this Agreement and the Security and
Subordination Documents or the performance of its duties under this
Agreement and the Security and Subordination Documents or any action taken
or omitted by the relevant Agent under this Agreement and/or any of the
Security and
105
Subordination Documents, unless such liabilities, damages, costs or claims
arise from the relevant Agent's own gross negligence or wilful misconduct.
16.13 Retirement of Agents
--------------------
(a) Each of the Facility Agent and the Security Agent may retire from its
appointment as Agent having given to the Parent and any Acceding
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
Parent (not to be unreasonably withheld or delayed) or, failing
such a nomination,
(ii) any reputable and experienced bank or financial institution with
offices in Paris nominated by the relevant Agent with the consent
of the Parent (not to be unreasonably withheld or delayed);
provided that no such consent of the Parent shall be required if
an Event of Default has occurred and is continuing.
Any corporation into which the relevant Agent may be merged or
converted or any corporation with which the relevant Agent may be
consolidated or any corporation resulting from any merger, conversion,
amalgamation, consolidation or other reorganisation to which the
relevant Agent shall be a party shall, to the extent permitted by
applicable law, be the relevant successor Agent 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 Parent and any Acceding Borrower and the
Banks, it being agreed that this paragraph relates solely to the case
where the legal personality of the Agent has disappeared as a result
of such operation.
(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 16 in
respect of any action it has taken or refrained from taking prior to
such discharge) and its successor and each of the other parties to
this Agreement shall have the same rights and obligations among
themselves as they would have had if such successor had been a party
to this Agreement in place of the retiring Agent. The retiring Agent
shall (at the expense of the Parent) provide its successor with copies
of such of its records as its successor reasonably requires to carry
out its functions under this Agreement.
106
17 WAIVERS, REMEDIES CUMULATIVE
----------------------------
17.1 Waivers
No failure to exercise and no delay in exercising any right, power or
privilege under any Facility Document by any of the Beneficiaries shall
operate as a waiver of the same, nor shall any single or partial exercise
of any such right, power or privilege preclude any other or further
exercise of the same, or the exercise of any other right, power or
privilege. No waiver by any of the Beneficiaries shall be effective unless
it is in writing.
17.2 Remedies cumulative
The rights and remedies of each of the Beneficiaries in this Agreement may
be exercised as often as necessary and are cumulative and not exclusive of
any rights or remedies provided by law.
18 NOTICES
-------
18.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless otherwise stated, may be
made by letter, telex or facsimile. Any such notice will be deemed to be
given as follows:
(a) if by letter, when delivered personally or on actual receipt;
(b) if by telex, when dispatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the
end of the sender's copy of the notice; and
(c) if by facsimile, when dispatched, but only if, at the time of
transmission, an electronic receipt is issued indicating that the
facsimile has been received at the number specified in article 18.2
below;
provided, however, that any notice received on a date which is not a normal
business day in the place of receipt or following normal business hours in
such place, such notification shall be deemed given at the opening of
business on the following business day in the country of receipt of such
notice.
18.2 Addresses for notices
(a) The address, telex number and facsimile number of each party are as
set out in Schedule 9 hereto or any other notified by that party for
this purpose to the Facility Agent by not less than five (5) Banking
Days' notice.
(b) All notices from or to any Borrower shall be sent through the Facility
Agent with a copy to the Facility Agent, or in the case of the
Security Documents, the Security Agent.
107
(c) The Facility Agent shall, promptly upon request from any party, give
to that party the address telex number or facsimile number of any
other party applicable at the time for the purposes of this Clause.
19 CHANGES TO THE PARTIES
----------------------
19.1 Transfers by Borrowers
No Borrower may assign, transfer, delegate or dispose of any of or any
interest in, its rights and/or obligations under the Facility Documents.
19.2 Transfers by Banks
(a) Subject to paragraph (b) below, a Bank (the "EXISTING BANK") may at
any time assign or transfer all or part of its rights and/or
obligations under the Facility Documents to a new Bank (the "NEW
BANK"), PROVIDED THAT any such assignment or transfer by a Bank of its
Commitment shall be in a minimum amount of FRF 30,000,000 or the
balance of its Commitment.
(b) The prior consent of the Parent is required for any such assignment or
transfer, unless (i) the New Bank is another Bank or an Affiliate of a
Bank, and such New Bank is a Qualifying Bank or (ii) an Event of
Default has occurred and is continuing. However, the prior consent of
the Parent must not be unreasonably withheld or delayed and will be
deemed to have been given if, within fifteen (15) Banking Days of
receipt by the Parent of an application for consent, it has not been
expressly refused.
(c) The Parent hereby acknowledges that following any such transfer and/or
assignment, the New Bank will be substituted for the rights and
obligations so transferred and assigned to it by the Existing Bank.
(d) A transfer of obligations will be effective only if the obligations
are transferred in accordance with Clause 19.3 (Procedure for
Transfers). On the transfer becoming effective in this manner the
Existing Bank shall be relieved of its obligations under the Facility
Documents to the extent that they are transferred to the New Bank.
(e) On each occasion an Existing Bank assigns and transfers any of its
rights and/or obligations under this Agreement, the New Bank shall, on
the date the assignment and transfer takes effect, pay to the Facility
Agent for its own account a fee of FRF 5,000.
(f) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Facility Document or any other document;
(ii) the collectability of amounts payable under any Facility
Document; or
108
(iii) the accuracy of any statements (whether written or oral) made in
or in connection with any Facility Document.
(g) Each New Bank confirms to the Existing Bank and the other
Beneficiaries that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of the Parent and/or any
relevant Acceding Borrower and its or their related entities in
connection with its participation in this Agreement and has not
relied on any information provided to it by the Existing Bank in
connection with any Facility Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Parent and/or any relevant Acceding
Borrower and its or their related entities while any amount is
or may be outstanding under this Agreement or any Commitment is
in force.
(h) Nothing in any Facility Document obliges an Existing Bank to:
(i) accept a re-assignment and re-transfer from a New Bank of any of
the rights and/or obligations assigned and transferred under
this Clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by the Parent and/or any relevant Acceding
Borrower of its or their obligations under the Facility
Documents or otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank but
excludes a Bank if no amount is or may be owed to or by it under this
Agreement and its Commitment has been cancelled or reduced to nil.
(j) Each Borrower hereby agrees to consent to, sign, file, register and
notify all documents and take such action or do such things as the
Facility Agent may consider necessary, acting reasonably, to give
effect to each and any transfer and assignment by an Existing Bank to
a New Bank under this Agreement.
(k) If any Bank assigns its rights under this Agreement a written
instrument by which such rights are assigned must be notified to each
Borrower by huissier (bailiff) in accordance with the provisions of
Article 1690 of the Civil Code.
19.3 Procedure for transfers
(a) A transfer is effected if:
109
(i) the Existing Bank and the New Bank deliver to the Facility Agent
a duly completed certificate, substantially in the form of
Schedule 13 (a "SUBSTITUTION CERTIFICATE"); and
(ii) the Facility Agent executes it, which the Facility Agent shall
promptly do.
(b) Each party (other than the Existing Bank and the New Bank) irrevocably
authorises the Facility Agent to execute any duly completed
Substitution Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the
transfer in the Substitution Certificate:
(i) the Existing Bank and the other Banks (the "EXISTING PARTIES")
will be released from their obligations to each other (the
"DISCHARGED OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the Discharged Obligations
only insofar as they are owed to or assumed by the New Bank
instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties and
vice versa (the "DISCHARGED RIGHTS") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights
against each other which differ from the Discharged Rights only
insofar as they are exercisable by or against the New Bank
instead of the Existing Bank,
all on the date of execution of the Substitution Certificate by the
Facility Agent or, if later, the date specified in the Substitution
Certificate.
19.4 Register
The Facility Agent shall keep a register of all the Beneficiaries and shall
supply any other party to a Facility Document (at that party's expense)
with a copy of the register on request.
19.5 Increased costs
If:
(a) any assignment or transfer of all or any part of the rights and
obligations of a Bank pursuant to this Clause 19; or
(b) a change in the Facility Office (as defined below) of a Bank or the
Facility Agent;
110
results in amounts becoming due at that time under Clauses 8.7 (Grossing-up
for Taxes), 15.2 (Increased costs) or 7 (Fees, expenses and stamp taxes),
then unless such assignment or transfer or change in the Facility Office
arises as a consequence of Clause 15.4 (Mitigation) the transferee, New
Bank, Bank or Facility Agent, as the case may be, shall be entitled to
receive those amounts only to the extent that the transferor, Existing Bank
or Bank, as the case may be, would have been entitled had there been no
assignment and transfer or change in the Facility Office.
19.6 Reference Banks
The Facility Agent may with the consent of the Parent (such consent not to
be unreasonably withheld or delayed and to be deemed to have been given if
the Facility Agent has not received within thirty (30) days of any request
for consent being given to the Parent written notice from the Parent
refusing such consent and specifying the reasons for such refusal) nominate
additional Banks or Affiliates thereof to become Reference Banks and such
Banks or Affiliates shall become Reference Banks upon their indicating to
the Facility Agent that they are prepared to act as such. The Facility
Agent will give the Parent written notice of such Banks or Affiliates
having become a Reference Bank as soon as practical thereafter. If a
Reference Bank, (or the Bank of which a Reference Bank is an Affiliate, in
the case of any Reference Bank which is not itself a Bank) transfers the
whole of its rights and obligations under this Agreement as a Bank or
ceases to be one of the Banks or in such other circumstances as the
Majority Banks determine, the Facility Agent, subject to agreement by the
Parent (such agreement not to be unreasonably withheld or delayed) will
appoint another Bank to replace such Bank or Affiliate as a Reference Bank.
19.7 Change of Facility Office
Each Bank shall participate in this Agreement through the office set forth
in Schedule 1 hereto (a "FACILITY OFFICE"), but each Bank may change its
Facility Office with respect to any Advance from time to time (subject
however to the provisions of Clause 19.4 hereof and provided that such
change must not prejudice in any manner whatsoever, the security provided
pursuant to the Security Documents), on giving not less than ten (10)
Banking Days' prior notice to the Facility Agent.
20 REDISTRIBUTION
--------------
20.1 Redistribution
(a) If at any time the proportion which any Tranche A Bank (the "RECEIVING
PARTY") has received or recovered (whether by set-off or otherwise) on
account of any sum due from any Borrower under this Agreement is
greater (the amount of the excess being herein referred to as the
"EXCESS AMOUNT") than the proportion received or recovered by the
Tranche A Bank receiving or recovering the smallest proportion (which
shall include a nil receipt) in relation to the sum then due to the
latter Tranche
111
A Bank from the relevant Borrower under this Agreement, then the
receiving party shall promptly notify the Facility Agent thereof and:
(i) the receiving party shall promptly and in any event within ten
(10) days of receipt or recovery of the excess amount pay to
the Facility Agent an amount equal to the excess amount;
(ii) the excess amount shall be treated as having been paid to or
recovered by the receiving party for the account of the
Facility Agent for payment to the Tranche A Banks as provided
in paragraph (iii) below, and the obligations of the relevant
Borrower to the receiving party shall only be reduced or
discharged by the receipt or recovery by the receiving party of
such excess amount to the extent of the receiving party's
entitlement to payment by the Facility Agent pursuant to
paragraph (iii) below; and
(iii) the parties to this Agreement shall treat such payment as if it
were a payment by the relevant Borrower to the Facility Agent
for payment to the Facility Agent on account of a sum owed to
the Tranche A Banks and shall pay the same to the Tranche A
Banks (including the receiving party) pro rata to their
respective entitlements in such sum,
PROVIDED THAT where a receiving party is subsequently required to
repay to the relevant Borrower any amount received or recovered by it
and dealt with under paragraphs (i), (ii) and (iii) above, each
Tranche A Bank shall promptly repay to the Facility Agent for payment
to the Facility Agent for the receiving party the portion of such
amount distributed to it, together with interest on it at a rate
sufficient to reimburse the receiving party for any interest which it
has been required to pay to the relevant Borrower in respect of such
portion of such amount.
(b) Where a receiving party has recovered any amount as a consequence of
the satisfaction or enforcement of a judgement obtained in any legal
action or proceedings to which it is a party, this Clause 20.1 shall
not apply so as to benefit any Tranche A Bank which (being entitled so
to do) did not join with the receiving party in such action or
proceedings, unless the receiving party did not give prior notice of
its involvement in such action or proceedings to the Facility Agent
for disclosure to the Banks.
(c) Each Tranche A Bank shall promptly give notice to the Facility Agent
of:
(i) the institution by such Tranche A Bank (as the case may be) of
any legal action or proceedings under this Agreement or in
connection with this Agreement prior to such institution; and
112
(ii) the receipt or recovery by such Tranche A Bank (as the case may
be) of any amount received or recovered by it otherwise than
through the Facility Agent.
Upon receipt of any such notice, the Facility Agent will as soon as
practicable thereafter notify the Facility Agent and all the other Tranche
A Banks.
21 CONFIDENTIALITY
---------------
Each Beneficiary may only disclose a copy of any Facility Document or any
information which that Beneficiary has acquired under or in connection with
any Facility Document:
(a) to any person to whom it is proposing to enter into, or has entered
into, any kind of assignment, transfer, substitution, participation or
other similar arrangement;
(b) to its auditors, accountants, legal counsel and tax advisers and to
any other professional advisers appointed to act in connection with
the administration of the Facility Documents or the enforcement of, or
realisation of any security provided under, any of the Facility
Documents PROVIDED THAT such information is disclosed only to such
person if and to the extent necessary for his activities and each such
person will be informed of the confidential nature of the information
and the provisions of this Agreement;
(c) to any other third party where the Parent (and following a Permitted
Acquisition, any other member of the Group) has previously agreed in
writing that disclosure may be made to that third party;
(d) to any banking or other regulatory or examining authorities (whether
governmental or otherwise) where such disclosure is requested by them
and with whose requests that Beneficiary has to comply (or with whose
requests banks in the relevant jurisdiction are accustomed to
complying);
(e) pursuant to subpoena or other legal process, or in connection with any
action, suit or proceeding relating to any of the Facility Documents:
and
(f) pursuant to any law or regulation having the force of law,
provided in the case of (a) above that the relevant recipient agrees to
preserve the confidentiality of any confidential information relating to
any Borrower received by it and to make no use of such information
otherwise than in connection with the relevant assignment, transfer,
substitution, participation or other similar arrangement.
113
22 MISCELLANEOUS
-------------
22.1 Severability
If any provision of any Facility Document is prohibited or unenforceable in
any jurisdiction, such prohibition or unenforceability shall not invalidate
the remaining provisions of such Facility Document.
22.2 Internal accounts as evidence
Internal accounts maintained by the Facility Agent and the Security Agent
or each Bank in connection herewith shall constitute prima facie evidence
of sums owing to such Bank under this Agreement.
22.3 Language
(a) This Agreement is made in both the French and English languages. In
the event of any discrepancies between the French version and the
English version of this Agreement, the French version of this
Agreement shall prevail.
(b) Any notice given under or in connection with any Facility Document
shall be in English with a French translation or in French with an
English translation; for the avoidance of doubt, in the event of any
dispute, the French versions shall prevail.
(c) All other documents provided under or in connection with any Facility
Document shall be:
(i) if the document is originally produced in English, in English; or
(ii) if the document is originally produced in French, in French
accompanied by an English translation and, in this case, the
French version shall prevail unless the document is a statutory
or other official document.
23 GOVERNING LAW AND JURISDICTION
------------------------------
This Agreement shall be governed by and construed in accordance with French
law and any disputes arising in connection with any Facility Document shall
be submitted to the exclusive jurisdiction of the Commercial Court
(Tribunal de Commerce) of Paris, without prejudice to the rights of the
Arranger, the Facility Agent, the Security Agent or the Banks to bring an
action against any Borrower before any other competent jurisdiction.
Signed in Paris, on 1998, in five (5) copies in the French
language and in five (5) copies in the English language.
114
SCHEDULE 1
THE BANKS AND THEIR COMMITMENTS
PART A
Tranche A Banks
Name Address Tranche A Commitments
Paribas 0, xxx x'Xxxxx XXX 000,000,000
00000 Xxxxx
Xxxxxx
TOTAL TRANCHE A FRF 680,000,000
COMMITMENTS
000
XXXX X
XXXXXXX X BANKS
Name Address Tranche B Commitment
Paribas 0, xxx x'Xxxxx XXX 00,000,000
00000 Xxxxx
Xxxxxx
TOTAL TRANCHE B FRF 20,000,000
COMMITMENTS
116
SCHEDULE 2
Part A
Conditions Precedent to the First Advance and Overdraft Utilisation
1 A certified copy of the Statuts and original "Extrait K-bis" of the Parent.
2 Certified copies of:
(a) all Cable Broadcasting Law Authorisations;
(b) any Telecommunications Authorisations; and
(c) all Material Contracts.
3 The Facility Documents (other than the Security and Subordination
Documents) duly executed by all the parties thereto.
4 The Parent Security Documents identified in Schedule 4 duly executed by all
the parties thereto (and where appropriate perfected).
5 The Subordination Agreement, duly executed by all the parties thereto.
6 A certified copy of a resolution of the Board of Directors of the Parent
and of the appropriate corporate body of any other party to the Facility
Documents other than the Beneficiaries approving the transactions and
matters contemplated by this Agreement and the other Facility Documents and
authorising an Authorised Officer of the Parent (or an authorised officer
of any such other entity, as the case may be) to execute on its behalf all
the Facility Documents to which it is a party.
7 A certified copy of (and of all applications for) any and all approvals,
consents, licences, exemptions and other requirements of governmental and
other authorities required for the entering into or performance of the
Facility Documents by each party thereto other than the Beneficiaries.
8 A specimen of the signature of each person (each being an Authorised
Officer of the Parent) authorised to execute any of the Facility Documents
on behalf of the Parent and any other party to the Facility Documents other
than the Beneficiaries and/or to sign all notices, certificates and other
documents or communications to be delivered by the Parent and any other
party to the Facility Documents other than the Beneficiaries.
9 A legal opinion in form and substance satisfactory to the Facility Agent,
addressed to the Facility Agent, the Security Agent, the Arranger and the
Banks, of Xxxxxx Xxxx, legal advisers to the Banks, as to such matters
relating to the Facility Documents as the Facility Agent may require.
117
10 A legal opinion of Jeantet & Associes, French legal advisers to the Parent,
in the form previously agreed between the Facility Agent and the Borrower,
addressed to the Facility Agent, the Security Agent, the Arranger and the
Banks.
11 A legal opinion of internal counsel to UPC, in the form previously agreed
between the Facility Agent and the Parent, addressed to the Facility Agent,
the Security Agent, the Arranger and the Banks.
12 The latest annual audited Accounts of the Parent for 1997.
13 The 1998 Business Plan and the 1998 Annual Operating Budget.
14 A letter from the Parent, addressed to the Facility Agent and the Banks,
explaining the accounting policies and principles used by the Parent in
1998 Business Plan and confirming that they comply with the principles used
for the 1997 Accounts referred to in paragraph 12 above
15 Tax opinion of Xx. X.X. Xxxxxxxxx, the internal tax advisors to the Parent,
in the agreed from, addressed to the Facility Agent, the Security Agent,
the Arranger and the Banks, confirming that the Parent has paid all
applicable taxes.
16 A copy of the Insurance Report from insurance consultants appointed by the
Facility Agent in relation to the adequacy of insurance cover in effect for
the Parent's businesses (and confirming, inter alia, that insurances
satisfactory to the Banks are in place against such risks, in such amounts,
with such insurers and upon such terms which are consistent with the
Insurance Report and as are satisfactory to the Banks) accompanied by
written confirmation from the insurance consultants that it can be relied
upon by the Security Agent, the Facility Agent, the Banks.
17 A certificate or certificates from the relevant banque depositaire and/or
the Statutory Auditors confirming that a minimum of FRF 144,000,000 in cash
has been subscribed in equity in the Parent by the Shareholders.
18 A certificate of the President of the Parent certifying that the Parent's
assets are not subject to any material retention of title arrangements
(other than as permitted under Clause 10.2(a) (Negative Pledge)).
118
PART B
Conditions Precedent to Accession of Acceding Borrowers
1 A certified copy of the constitutive documents (modified as necessary to
reflect the terms of the Facility Documents) and original registration
certificate (Extrait K-bis or equivalent) of the Acceding Borrower.
2 The Borrower Accession Notice signed by the Acceding Borrower, the Parent
and the Facility Agent.
3 A Parent Guarantee in respect of the Acceding Borrower executed by an
Authorised Officer of the Parent.
4 If so requested by the Facility Agent, the Acceding Borrower Security
Documents referred to in Clause 10.1(ff), duly executed by all the parties
thereto (and where appropriate perfected).
5 A certified copy of the resolution of the Board of Directors of the
Acceding Borrower approving the transaction and matters contemplated by the
Borrower Accession Notice and by this Agreement and authorising an
Authorised Officer of the Acceding Borrower to execute on its behalf the
Borrower Accession Notice and the Acceding Borrower Security Documents.
6 A certified copy of (and of all applications for) any and all approvals,
consents, licences, exemptions and other requirements of governmental and
other authorities required for the entering into or performance of the
Facility Documents by the Acceding Borrower.
7 A specimen signature of each person (each being an Authorised Officer of
the Acceding Borrower) authorised to execute the documents referred to
above and/or to sign all notices, certificates and other documents or
communications to be delivered by the Acceding Borrower.
8 The latest annual audited Accounts of the Acceding Borrower, at the time of
its accession to this Agreement.
9 A legal opinion of independent French legal advisers covering the points
dealt with in the legal opinion referred to in paragraph 10 of Part 1 of
this Schedule 2, with respect to the Acceding Borrower.
119
SCHEDULE 3
Part A
Form of Drawdown Notice
RCF ADVANCES REQUESTED DURING THE TRANCHE A AVAILABILITY PERIOD
Paribas
0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
Attention : Xxxxxxx Xxxxxxxx
Ref: 384 DOM " Coordination des
Financements Structures"
Tel: 01. 42. 98. 18. 58
Fax : 01. 42. 98. 43. 17
Copy : Xxxxxx Dauga
Ref: 378 D - "GCEI"
Tel : 01. 42. 98. 57. 24
Fax: 01. 42. 98. 04. 61
.19.
FRF 700,000,000 SECURED CREDIT FACILITY
---------------------------------------
Agreement dated 1998 (THE "AGREEMENT")
---------------------------------------
We refer to the above Agreement and hereby give you notice that we wish to
draw a RCF Advance of FRF . on . 19 .[to be used in relation to the proposed
acquisition of .] and select a Term of such Advance of . months. The funds
should be credited to the General Operations Account referred to in the
Agreement.
[WHERE ADVANCE TO BE USED FOR THE PURPOSES OF A PERMITTED ACQUISITION:
The RCF Advance will be used for the purposes of DESCRIPTION OF PROPOSED
ACQUISITION (the "PROPOSED ACQUISITION"). The Proposed Acquisition qualifies as
a Permitted Acquisition pursuant to the Agreement. [WHERE PURCHASE PRICE IS
GREATER THAN FRF 50,000,000). Information with respect to the Proposed
Acquisition described in Clause 10.1(k) of the Agreement, is attached to this
Drawdown Notice.]]
We confirm that:
(a) no Default or Event of Default, which has not been remedied, or waived
by the Facility Agent, has occurred and is continuing or will result
from the making of such Advance;
120
(b) the representations and warranties contained in Clause 9 of the Agreement
which are deemed to be repeated pursuant to Clause 9.2 thereof (and so that
the representation and warranty in Clause 9.1(f) refers for this purpose to
the audited financial statements of [Parent] [relevant Acceding Borrower
and the Group as a whole] in respect of the financial year ended on .19.)
are true and correct at the date hereof as if made with respect to the
facts and circumstances existing at such date;
(c) the [Parent and all members of the Group are] [relevant Acceding Borrower
is in compliance with all aspects of the Franchise Agreements and (except
as compliance therewith has been expressly or impliedly waived by the
relevant authority) the Cable Broadcasting and Telecommunications Laws
Authorisations;
(d) the borrowing to be effected by such RCF Advance will be within our
corporate objects, has been validly authorised by appropriate corporate
action and will not cause any limit on our borrowings (whether imposed by
statute, regulation, agreement or otherwise) to be exceeded;
(e) no Material Adverse Circumstance has occurred and is continuing;
(f) the amount of Bank Debt is currently FRF. and there are at the date hereof
Shareholder Contributions is an amount of FRF., [WHERE SHAREHOLDER
CONTRIBUTIONS HAVE BEEN INCREASED SINCE THE MOST RECENT DRAWDOWN NOTICE :
as evidenced by the receipt attached hereto issued by the banque
depositaire, showing that any such amounts have effectively been paid]. The
ratio of Bank Debt to Capitalisation will, following the making of the
Advance, therefore be . :1, in full compliance with the provisions of the
Facility Agreement; and
(g) on the basis of [ALL DRAWDOWN NOTICES OTHER THAN THE FIRST DRAWDOWN NOTICE
: the Monthly Management Reports] [FIRST DRAWDOWN NOTICE : internally
prepared [name month] financial statements and subscriber information
certified by an Authorised Officer of the Parent and made available to the
Facility Agent],[WHERE PURPOSE OF ADVANCE IS TO FINANCE A PROPOSED
ACQUISITION: and on the basis of the consolidated revenues of the Parent
and the entity or business which would result from the Proposed
Acquisition], the result (the "AVAILABILITY TEST RESULT") of the
calculation of the Availability Test is FRF . and the aggregate amounts
previously drawn under the Facility and not reimbursed (the "OUTSTANDING
DRAWINGS") are FRF. .
The amount remaining available for drawing under the Facility (Availability
Test Result minus Outstanding Drawings) is therefore FRF ., and the
drawing made hereby is therefore not in excess of such amount.
121
Words and expressions defined in the Agreement shall have the same meanings
where used herein.
For and on behalf of
.
...............................................
Authorised Officer
[IN THE CASE OF DRAWDOWN NOTICES BY BORROWERS OTHER THAN
THE PARENT :
For and on behalf of
MEDIARESEAUX MARNE
...............................................
Authorised Officer
122
SCHEDULE 3
PART B
Form of Rollover Notice
Paribas
0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
Attention : Xxxxxxx Xxxxxxxx
Ref: 384 DOM " Coordination des
Financements Structures"
Tel: 01. 42. 98. 18. 58
Fax : 01. 42. 98. 43. 17
Copy : Xxxxxx Dauga
Ref: 378 D - "GCEI"
Tel : 01. 42. 98. 57. 24
Fax: 01. 42. 98. 04. 61
.19.
FRF 700,000,000 SECURED CREDIT FACILITY
---------------------------------------
Agreement dated . 1998 (THE "AGREEMENT")
We refer to the above Agreement and hereby give you notice that we wish to
draw a RCF Advance of FRF[ ] on [ ] under and select a
Term for such RCF Advance of [ ] months. The funds should be applied in
repayment [in part] of the RCF Advance of FRF [ ] which falls due to be
repaid on the same day in accordance with Clause 5.1 of the Agreement [and the
balance of [ ] credited to the General Operations Account referred to in the
Agreement.
We confirm that:
(a) no Default or Event of Default, which has not been remedied, or waived
by the Facility Agent, has occurred and is continuing or will result
from the making of such Advance;
(b) the representations and warranties contained in Clause 9 of the
Agreement which are deemed to be repeated pursuant to Clause 9.2
thereof (and so that the representation and warranty in Clause 9.1(f)
refers for this purpose to the audited financial statements of the
[Parent] [relevant Acceding Borrower and the Group as a whole] in
respect of the financial year ended on .19.) are true and correct at
the date hereof as if made with respect to the facts and circumstances
existing at such date;
123
(c) the Parent and all members of the Group are relevant Acceding Borrower
is in compliance with all aspects of the Franchise Agreements and
(except as compliance therewith has been expressly or impliedly waived
by the relevant authority) the Cable and Telecommunications
Authorisations;
(d) the borrowing to be effected by such RCF Advance will be within our
corporate objects, has been validly authorised by appropriate
corporate action and will not cause any limit on our borrowings
(whether imposed by statute, regulation, agreement or otherwise) to be
exceeded; and
(e) no Material Adverse Circumstance has occurred and is continuing.
Words and expressions defined in the Agreement shall have the same meanings
when used herein.
For and on behalf of .
...........................................
Authorised Officer
[IN THE CASE OF DRAWDOWN NOTICES BY BORROWERS OTHER THAN
THE PARENT :
For and on behalf of .
MEDIARESEAUX MARNE
...............................................
Authorised Officer
124
SCHEDULE 4
PARENT SECURITY DOCUMENTS
1 Financial Instruments Accounts Pledge Agreement
2 Going Concern Pledge Agreement.
3 Local Authority Master Receivables Assignment Agreement.
4 Master Accounts Balance and Cash Pledge Agreement and any agreement for the
pledge of the balance of an account (nantissement de solde de compte) or of
the cash deposited in an account (nantissement d'especes) required to be
concluded thereunder.
5 Insurance Delegation Agreement.
6 Interest Rate Protection Master Receivables Assignment Agreement.
7 Construction Master Receivables Assignment Agreement.
8 Trademark Pledge Agreements
125
SCHEDULE 5
List of Existing Franchise Agreements
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4
NAME OF LOCAL DATE OF DATE OF LOCAL DATE OF CSA
AUTHORITY FRANCHISE AUTHORITY AUTHORISATION
AGREEMENT APPROVAL
Syndicat Mixte de 24th May 1995, 24th May 1995, 16th September
Videocommunication de amended on amended 0n 29th 1997, amending the
l'Est Parisien 3rd July 1996 March, 1996, 3rd authorisation dated
July, 1996 and 27th December 12th
October, 1997 1995
Commune de Rosny- 25 July 1996 31st May 1996 8th September 1997
sous-Bois
126
SCHEDULE 6
ACCOUNTS
PART A
QUARTERLY MANAGEMENT ACCOUNTS
127
BALANCE SHEET END.....
BILAN A FIN..........
--------------------------------------------------
Year to date / Bilan a Year to date budget/
fin... Bilan budgete a fin...
--------------------------------------------------------------------------------------------------------------------------------
Intangibles nets Immobilisations incorporelles nettes
Tangible nets Immobilisations corporelles nettes
Financial assets Autres immobilisations financieres
Liquidity Disponibilites
Trade debtors Creances Clients et comptes rattaches
Debtors Autres creances
Prepaid expenses Charges constarees d'avance
Vat receivable TVA a recevoir
Inter cie accounts receivable Comptes courants inter-co a recevoir
Inventory Stocks
Other Autres
--------------------------------------------------------------------------------------------------------------------------------
TOTAL TOTAL
--------------------------------------------------------------------------------------------------------------------------------
Capital Capital social
Retained earnings Report a nonveau
Other provisions Provisions pour risque et changes
Loans from particip. Compte courant associe
Bank loan Emprunts et dettes financieres
Trade creditors Dettes Foumisseurs et comptes rattaches
Int cie payment Comptes courants inter-co a payer
Int cie interest paid Interets courus
Deferred revenue Produits constates d avance
Ace liabilities Dettes fiscales et sociales
Subscribers deposit Depots de garantie
Sundry creditors Autres dentes
--------------------------------------------------------------------------------------------------------------------------------
TOTAL TOTAL
--------------------------------------------------------------------------------------------------------------------------------
in thousands FRF en milliers de FF
CASH FLOW STATEMENT END..........
ETAT DE L'ORIGINE DE L'UTILISATION DES FONDS A FIN.....
Relevant quarter/ Year to date / Chiffres
Dernier trimestre cumules depuis le debut
acheve de l'exercice social
------------------------------------------------------------------------------------------------------------------------------------
Net income/(loss) Resultat net
Depreciation Dotations aux amortissements
Amortisation Dotations aux provisions
Subscribers deposit Depots de garantie decodeurs
Equity increase Augmentation de capital ou apports
Bank loans Augmentation des dettes financieres
Inter cie current accounts Comptes courants inter-co
Increase/decrease working capital Variation du fonds de roulement
------------------------------------------------------------------------------------------------------------------------------------
Total sources Total Ressources
------------------------------------------------------------------------------------------------------------------------------------
Capital expenditure Acquisition d'elements de l'actif immobilise
Interest on bank loans Interets bancaires
Repayment bank loans Remboursement dettes financieres
------------------------------------------------------------------------------------------------------------------------------------
Total Uses Total Emplois
------------------------------------------------------------------------------------------------------------------------------------
Increase/(decrease) in cash Ressources/(Emplois)
Cash balance Tresorerie
Difference in cash Variation de tresorerie
------------------------------------------------------------------------------------------------------------------------------------
in thousands FRF en milliers de FF
Budget relevant Budget year to date /
quarter/ Budget pour Budget - chiffres
le dernier trimestre cumules depuis le debut
acheve de l'exercice social
---------------------------------------------------------------------------------------
Net income/(loss)
Depreciation
Amortisation
Subscribers deposit
Equity increase
Bank loans
Inter cie current accounts
Increase/decrease working capital
---------------------------------------------------------------------------------------
Total sources
---------------------------------------------------------------------------------------
Capital expenditure
Interest on bank loans
Repayment bank loans
---------------------------------------------------------------------------------------
Total Uses
---------------------------------------------------------------------------------------
Increase/(decrease) in cash
Cash balance
Difference in cash
---------------------------------------------------------------------------------------
Those accounts will be modified in accordance with the Facility Agent following
the introduction of additional business lines (telephony, Internet,....) to
provide substantially the same level of information for each business line.
Ces comptes seront modifes en accord avee l'Agent du Credit a la suite de l'
introduction de nouveaux services (telephone, Internet...) afin de foumir
substantiellement le meme niveau d'information pour chaque type de service.
REVENUE STATEMENT END....
COMPTE DE REVENUS A FIN......
----------------------------------------------------------------------------
Relevant quarter/ Year to date/ Budget relevant Budget year to
Dernier trimestre Chiffres cumules quarter/Budget date/Budget -
acheve depuis le debut de pour le dernier chiffres cumules
l'exercise social trimestre acheve depuis le debut de
l'exercise social
-----------------------------------------------------------------------------------------------------------------------------------
Basic accueil Basic "bouquet d'accueil"
EBS "bouquet" Basic etendu: 1 bouquet
thematique
EBS more than 1 "bouquet" Basic etendu: plus d'l
bouquet thematique
Premium Options
Pay per view Paiement a la seance (evenements)
Other Autres
-----------------------------------------------------------------------------------------------------------------------------------
Actual Recurring Revenues Revenu Periodique Reel
-----------------------------------------------------------------------------------------------------------------------------------
Installation Frais d'ouverture de ligne
TOTAL REVENUE Revenus totaux
-----------------------------------------------------------------------------------------------------------------------------------
in thousands FRF en milliers de FF
INCOME STATEMENT END...................
COMPTE DE RESULTAT A FIN..............
-------------------------------------------------------------------------------
Relevant quarter/ Year to date/ Budget relevant Budget year to
Dernier trimestre Chiffres cumules quarter/Budget date/Budget -
acheve depuis le debut de pour le dernier chiffres cumules
l'exercise social trimestre acheve depuis le debut de
l'exercise social
-----------------------------------------------------------------------------------------------------------------------------------
Revenues Revenus
Direct costs Xxxxx de programmes
Operating expenses Xxxxx operationnels
G/A expenses Xxxxx de marketing
& administratifs
Franchise expenses Redevances liees aux
conventions
Management fee Commision de gestion
ou de consultation
-----------------------------------------------------------------------------------------------------------------------------------
EBITDA Excedent Brut d'Exploitation
-----------------------------------------------------------------------------------------------------------------------------------
Depreciation/amort. Dotations aux amort.
et provisions
Financial income Produits financiers
Financial expense Charges financieres
Income/loss before tax Resultat net avant impots
sur les societes
-----------------------------------------------------------------------------------------------------------------------------------
in thousands FRF en milliers de FF
Those accounts will be modified in accordance with the Facility Agent following
the introduction of additional business lines (telephony, Internet,...) to
provide substantially the same level of information for each business lines.
Ces comptes seront modifies en accord avec l'Agent du Credit a la suite
l'introduction de nouveaux services (telephone, Internet...) afin de fournir
substantiellement le meme niveu d'information pour chaque type de service.
129
SCHEDULE 6
Accounts
Part B
Monthly Management Reports
130
STATISTICS / STATISTIQUES
---------------------------------------------------------
janvier fevrier mars xxxxx xxx juin
---------------------------------------------------------
January February March April May June
------------------------------------------------------------------------------------------------------------------------------------
Homes serviceable Logements commercialisables
SUBSCRIBERS ABONNES
----------- -------
Basic accueil Basic "bouquet d'accueil"
EBS "1 bouquet" Basic etendu : 1 bouquet thematique
EBS more than 1 "bouquet" Basic etendu : plus d'1 bouquet thematique
Premium Options
Pay per view events Paiements a la senace (evenements)
PENETRATION TAUX DE PENETRATION (*)
----------- -----------------------
Basic accueil Basic "bouquet d'accueil"
EBS "1 bouquet" Basic etendu: 1 bouquet thematique
and more than 1 "bouquet" et plus d'1 bouquet thematique
Premium Options
Chum Resiliations
Revenues Revenus
-------- --------
Basic accueil Basic "bouquet d'accueil"
EBS "1 bouquet" Basic etendu : 1 bouquet thematique
EBS more than 1 "bouquet" Basic etendu : plus d'1 bouquet thematique
Premium Options
Pay per view Paiements a la seance (evenements)
Other Autres
------------------------------------------------------------------------------------------------------------------------------------
ACTUAL RECURRING REVENUES REVENU PERIODIQUE REEL
------------------------------------------------------------------------------------------------------------------------------------
Installation Frais d'ouverture de ligne
------------------------------------------------------------------------------------------------------------------------------------
TOTAL REVENUES TOTAL REVENUS
------------------------------------------------------------------------------------------------------------------------------------
Revenue Generating Units Unite Generant un Revenu
Availability Factor Facteur de Disponibilite
Availability Test Result Resultat du Test de Disponibilite
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------
juillet aout septembre octobre novembre decembre
-----------------------------------------------------------------------
July August September October November December
-----------------------------------------------------------------------------------------------------------------------------------
Homes serviceable Logements commercialisables
SUBSCRIBERS ABONNES
----------- -------
Basic accueil Basic "bouquet d'accueil"
EBS "1 bouquet" Basic etendu : 1 bouquet thematique
EBS more than 1 "bouquet" Basic etendu : plus d'1 bouquet thematique
Premium Options
Pay per view events Paiements a la senace (evenements)
PENETRATION TAUX DE PENETRATION (*)
----------- -----------------------
Basic accueil Basic "bouquet d'accueil"
EBS "1 bouquet" Basic etendu: 1 bouquet thematique
and more than 1 "bouquet" et plus d'1 bouquet thematique
Premium Options
Chum Resiliations
Revenues Revenus
-------- --------
Basic accueil Basic "bouquet d'accueil"
EBS "1 bouquet" Basic etendu : 1 bouquet thematique
EBS more than 1 "bouquet" Basic etendu : plus d'1 bouquet thematique
Premium Options
Pay per view Paiements a la seance (evenements)
Other Autres
------------------------------------------------------------------------------------------------------------------------------------
ACTUAL RECURRING REVENUES REVENU PERIODIQUE REEL
------------------------------------------------------------------------------------------------------------------------------------
Installation Frais d'ouverture de ligne
------------------------------------------------------------------------------------------------------------------------------------
TOTAL REVENUES TOTAL REVENUS
------------------------------------------------------------------------------------------------------------------------------------
Revenue Generating Units Unite Generant un Revenu
Availability Factor Facteur de Disponibilite
Availability Test Result Resultat du Test de Disponibilite
------------------------------------------------------------------------------------------------------------------------------------
Those accounts will be modified in accordance with the Facility Agent following
the introduction of additional business lines (telephony, Internet,...) to
provide sudstantially the same level of information for each business line.
Ces comptes seront modifies en accord avec 1'Agent du Credit a la suite de 1'
introduction de nouveaux services (telephone, Internet...) afin de fourmir
substantiellement le meme niveau d'information pour chaque type de service.
(*) definition des taux de penetration: Basic "bouquet d'accueil" = Abonnes
Basic "bouquet d'accueil" / logements
commercialisables
Basic etendu = Abonnes Basic Etendu (1
bouquet et plus de 1 bouquet) /
logements commercialisable.
Options = Abonnes Options / logements
commercialisables.
(*) definition of penetration rates: Basic accueil = Basic Accueil
Subscribers / Homes serviceable
EBS = EBS (1 "bouquet" and more than 1
"bouquer") Subscribers / Homes
serviceable
Premium = Premium subscribers / Homes
serviceable
SCHEDULE 7 -
COMPLIANCE CERTIFICATES
PART A
FORM OF FINANCIAL RATIO COMPLIANCE CERTIFICATE TO BE ISSUED BY
THE PRESIDENT OF THE PARENT
Paribas
0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
[DATE]
Attention: .
Dear Sirs,
MEDIARESEAUX MARNE S.A.
FRF 700,000,000 SECURED CREDIT FACILITY
FACILITY AGREEMENT DATED 1998)
(THE "AGREEMENT")
We refer to the Agreement and, in particular Clause 10.1(j)(iii) thereof. Terms
defined in the Agreement shall have the same meaning when used in this
Certificate.
We confirm the following:
1 As at the date of the Quarterly Management Accounts, supplied to the
Facility Agent along with this Certificate, on . [the latest Periodic Financial
Ratio Test Date], each of the financial ratios in accordance the has complied
(when applicable) with each of the financial ratios in accordance with Clause 11
of the Facility Agreement as follows:
(a) EBITDA to 1998 Business Plan Projection:
----------------------------------------
The Group as a whole, on a consolidated basis, has an actual amount of
the Year-to-Date EBITDA of FRF .
The minimum Year-to-Date EBITDA required under Clause 11.1 of the
Facility Agreement for this Quarterly Period is an amount of [to be
inserted].
This ratio has therefore, been complied with.
132
(b) Bank Debt to Capitalisation:
----------------------------
The Group as a whole, on a consolidated basis, has an amount of Bank
Debt of FRF . and Shareholders' Contributions of FRF .
Consequently, the ratio of Bank Debt to Capitalisation is . %.
The maximum percentage permitted under Clause 11.2 of the Facility
Agreement for this Quarterly Period is an amount of [to be inserted].
This ratio has therefore, been complied with.
(c) Pro-Forma Debt Service:
-----------------------
The Group as a whole, on a consolidated basis, has an amount of
Annualised EBITDA of FRF . and Pro-Forma Debt Service of FRF .
Consequently, the ratio of Annualised EBITDA to Pro-Forma Debt Service
is . : 1.
The maximum ratio permitted under Clause 11.3 of the Facility
Agreement for this Quarterly Period is an amount of [to be inserted].
This ratio has therefore, been complied with.
(d) Interest Coverage
-----------------
The Group as a whole, on a consolidated basis, has made Interest
Payments in an amount of FRF . and therefore, the ratio of Annualised
EBITDA (see paragraph (c) above) to Interest Payments is . :1.
The minimum ratio required under Clause 11.4 of the Facility Agreement
for this Quarterly Period is an amount of [to be inserted].
This ratio has therefore, been complied with.
(e) Bank Debt to Annualised EBITDA:
------------------------------
The Group as a whole, on a consolidated basis, has a ratio of Bank
Debt (see paragraph (b) above) to Annualised EBITDA (see paragraph (c)
above ) of . :1.
The maximum ratio permitted under Clause 11.5 of the Facility
Agreement for this Quarterly Period is an amount of [to be inserted].
This ratio has therefore, been complied with.
2 The Quarterly Management Accounts submitted to the Facility Agent on this
Periodic Ratio Test Date along with this Certificate, fairly present the
consolidated financial position of the Parent.
3 The above-mentioned Quarterly Management Accounts have been prepared in
accordance with the French Accounting Principles consistently applied
(except
133
to the extent previously disclosed and reconciled in those Quarterly
Management Accounts).
4 [No Default is outstanding]
or
[A Default has occurred and is continuing in relation to Clause .
Consequently, the following remedial action is being taken: [List action
taken or to be taken]
This Certificate is for the information of, and can only be relied on by, the
Facility Agent and the Banks and is not to be relied on by any other person or
referred to, in whole or in part, without our prior written consent.
Yours faithfully,
134
SCHEDULE 7
PART B
FORM OF CERTIFICATE TO BE ISSUED BY THE STATUTORY AUDITORS OF THE PARENT
PURSUANT TO CLAUSE 10.1(J)(II) CONCERNING EXCESS CASH FLOW
Paribas
0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
[DATE]
Attention:
Dear Sirs,
MEDIARESEAUX MARNE S.A.
FRF 700,000,000 SECURED CREDIT FACILITY
FACILITY AGREEMENT DATED . 1998
(THE "AGREEMENT")]
We refer to the Agreement and in particular, to Clause 10.1(j)(ii) thereof.
Terms defined in the Agreement shall have the same meaning when used in this
Certificate.
We confirm that for the purposes of Clause 5.4 of the Facility Agreement
(Mandatory Prepayment), the Parent Group has an Excess Cash Flow amounting to
FRF . for the latest annual accounting period to which the annual audited
Accounts (delivered pursuant to Clause 10.1(f) of the Agreement) relate.
This Certificate is for the information of, and can only be relied on by, the
Facility Agent and the Banks and is not to be relied on by any other person or
referred to, in whole or in part, without our prior written consent.
Yours faithfully,
135
SCHEDULE 8A
ESSENTIAL PRINCIPLES AND DOCUMENTS REQUIRED FOR APPROVAL OF A PROPOSED FUTURE
FRANCHISE AGREEMENT
AS A PERMITTED FUTURE FRANCHISE AGREEMENT
PART A
ESSENTIAL PRINCIPLES OF PERMITTED FUTURE FRANCHISE AGREEMENTS
Any Proposed Future Franchise Agreement must comply with the following
Essential Principles in order to qualify as an Permitted Future Franchise
Agreement:
1. The normal expiration date of the Proposed Future Franchise Agreement
should not be earlier than five years following the Final Maturity Date
(as such term is defined in the Facility Agreement).
2. The Proposed Future Franchise Agreement should be exclusive to the
extent permitted by French law as concerns the transmission of radio and
television by means of a cable network covering the entire territory
within the jurisdiction of a Local Authority.
3. The franchise fees payable to the Local Authority under such Proposed
Future Franchise Agreement should not exceed the higher of 5% of Cable
Broadcasting System Revenues related to such Proposed Future Franchise
Agreement or FRF30 per home per year in the territory covered by the
Proposed Future Franchise Agreement ("FRANCHISE HOMES"). However,
approval of a figure greater than such 5% of Cable Broadcasting System
Revenues or FRF30 per Franchise Home per year, but not more than 10% of
Cable Broadcasting System Revenues or FRF60 per Franchise Home per year
may (notwithstanding the introductory paragraph of Clause 10.2 of the
Facility Agreement) be given by the Facility Agent without prior
consultation of the Majority Banks. The Parent shall furnish the
Facility Agent in writing with the justification for such different
figure, and the Facility Agent shall inform the Parent of its decision
within two Banking Days. Approval of the Facility Agent to such higher
figure shall not be unreasonably withheld.
4. Early termination of the Proposed Future Franchise Agreement by the
Local Authority without cause (motif d'interet general) should be
permitted only upon the giving of at least three months' notice by the
Local Authority to the relevant member of the Group.
136
5. The indemnity payable to relevant member of the Group at the end of the
Proposed Future Franchise Agreement by the Local Authority should be
based:
(a) in the event of early termination of the Proposed Future Franchise
Agreement by the Local Authority without cause (motif d'interet
general), on (i) the net book value of the assets that are subject
to reversionary rights in favour of the Local Authority (biens de
retour), (ii) the fair market value of the assets subject to a
purchase option (biens de reprise) if the Local Authority chooses
to exercise its purchase option over such biens de reprise, (iii)
the value of the relevant member of the Group's possible
accumulated losses, determined as a function of its income
statements (la valeur des pertes possibles cumulees determinees a
partir de ses comptes d'exploitation) and (iv) the value of its
client list at the date of termination (la valeur du fichier des
abonnes a la date de cessation des relations contractuelles)
resulting from such termination (or any other method which is more
protective of the relevant member of the Group); and
(b) upon normal expiration of the Proposed Future Franchise Agreement,
on (i) the net book value of those assets that are biens de retour
which have not been fully amortised and which had been approved as
modernisation investments by the Local Authority and (ii) the fair
market value of the assets subject to a purchase option (biens de
reprise) if the Local Authority chooses to exercise its purchase
option over such biens de reprise (or any other method which is
more protective of the relevant member of the Group).
6. The Proposed Future Franchise Agreement should provide the relevant
member of the Group with the opportunity of limiting coverage of the
cable network to those areas where the implantation of such a cable
network is economically sound (on the basis of objective criteria such
as household density, cost of construction per home passed, or a
"coverage map").
7. The relevant member of the Group should not be required under the
Proposed Future Franchise Agreement to provide services other than cable
radio and television services without the consent of the relevant member
of the Group.
8. The Proposed Future Franchise Agreement should not prevent the relevant
member of the Group from terminating the Proposed Future Franchise
Agreement should the CSA refrain from granting the authorisation to
operate (exploiter) the cable network, and the Proposed Future Franchise
Agreement should not in such case require the relevant member of the
Group to pay any additional amounts to the relevant Local Authority.
9. The Proposed Future Franchise Agreement should not limit the ability of
the relevant member of the Group to use the infrastructure in the
geographical
137
area covered by the Proposed Future Franchise Agreement to service
neighbouring geographical areas, including in the event of expiration
or termination of the Franchise Agreement.
10. The Proposed Future Franchise Agreement should not limit the ability of
the relevant member of the Group to develop telecommunications services
(including telephone, high-speed data transmission, video, Internet
access multi-media services and other related services).
138
SCHEDULE 8A
PART B
CERTIFICATE OF COMPLIANCE WITH ESSENTIAL PRINCIPLES OF PERMITTED FUTURE
FRANCHISE AGREEMENTS
Paribas
0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
[DATE]
Attention: .
Dear Sirs,
MEDIARESEAUX MARNE S.A.
FRF 700,000,000 SECURED CREDIT FACILITY
FACILITY AGREEMENT DATED . 1998)
(THE "AGREEMENT")
We refer to the Agreement and, in particular Clause 10.2(p)(i)(A)(1) and
Schedule 8A Part A thereof. Terms defined in the Agreement shall have the same
meaning when used in this Certificate.
We hereby confirm that we [we anticipate signing] [ ., an Acquired Company,
anticipates signing a Franchise Agreement with . as Local Authority, and that
such Franchise Agreement complies with the Essential Principles of Permitted
Future Franchise Agreements contained in Schedule 8A, Part A of the Agreement.
Yours faithfully,
Mediareseaux Marne S.A.
by
.
Authorised Officer
139
SCHEDULE 8A
PART C
DOCUMENTS REQUIRED TO BE DELIVERED TO THE FACILITY AGENT FOR APPROVAL OF
A PROPOSED FUTURE FRANCHISE AGREEMENT
AS A PERMITTED FUTURE FRANCHISE AGREEMENT
The following is a list of documents a copy of which the Parent must
furnish to the Facility Agent before any Proposed Future Franchise
Agreement relating to the Cable Broadcasting and Telecommunications Systems
may qualify as a Permitted Future Franchise Agreement:
(a) The relevant Local Authority Public Service Delegation Approval
required pursuant to the Cable Broadcasting and Telecommunications
Laws, approving the Proposed Future Franchise Agreement, together with
evidence that a copy of the text of the Local Authority Public Service
Delegation Approval has been transmitted to the relevant prefecture as
required by law for the purposes of a controle de legalite.
(b) The signed Proposed Future Franchise Agreement, together with evidence
that a copy of such signed Proposed Future Franchise Agreement has
been transmitted to the relevant prefecture as required by law for the
purposes of a controle de legalite.
(c) One or more of the following documents:
(i) a certification to the effect that the relevant member of the
Group has been informed by the Local Authority that the
prefecture has not requested any further information or
documents with respect to the Local Authority Public Service
Delegation Approval and has not received a request by any third
party for a recours administratif within the time limits
required by law; or
(ii) a certification to the effect that relevant member of the Group
has been informed by the Local Authority that the prefecture has
requested further information or documents with respect to the
Local Authority Public Service Delegation Approval, and that
such further information or documents have been provided; and/or
that the Local Authority has received a request by any third
party for a recours administratif but that the Local Authority
has decided not to revoke the Local Authority Public Service
Delegation Approval; or
(iii) a certification to the effect that relevant member of the Group
has been informed by the Local Authority that such further
information has been requested and/or that such a request for a
140
recours administratif has been made but that the Parent has
concluded that it is likely that such further information will
result in a favourable decision by the prefecture and/or that
such recours administratif will not result in a revocation by
the Local Authority of its decision. In such case, the Facility
Agent shall transmit such certification, together with any
documents in support of such conclusion provided by the Borrower
to the Banks. The Banks shall be entitled to review such
materials for a period not in excess of thirty (30) days and the
request by the prefecture for further information and/or the
request for a recours administratif shall not bar the Proposed
Future Franchise Agreement from becoming a Permitted Future
Franchise Agreement so long as the Majority Banks consent
thereto (such consent not to be unreasonably withheld).
(d) Where relevant, one or more of the following documents:
(i) a certification of the Parent to the effect that the relevant
prefecture or any third party (tiers) with standing (interet a
agir) has filed such an appeal with the administrative court and
that such appeal has been denied by the administrative court,
such certification to be accompanied by a copy of the decision of
the administrative court; or
(ii) a certification of the Parent to the effect that the relevant
prefecture or any third party (tiers) with standing (interet a
agir) has filed such an appeal with the administrative court
(tribunal administratif), but that the Parent has concluded that
such appeal is without legal foundation. In such case, the
Facility Agent shall transmit such certification, together with
any documents in support of such conclusion provided by the
Parent (including, if so requested by the Facility Agent, a legal
opinion of external counsel to the Borrower provided at the
expense of the Parent) to the Banks. The Banks shall review such
materials for a period not in excess of thirty (30) days and the
Proposed Future Franchise Agreement shall qualify as a Permitted
Future Franchise Agreement if the Majority Banks determine (such
determination not to be unreasonably withheld) that such appeal
is without legal foundation.
141
SCHEDULE 8B
ESSENTIAL PRINCIPLES AND DOCUMENTS REQUIRED FOR APPROVAL OF A PROPOSED FUTURE
RADIO AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION AGREEMENT
AS A PERMITTED FUTURE RADIO AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION
AGREEMENT
PART A
ESSENTIAL PRINCIPLES OF PERMITTED FUTURE RADIO AND TELEVISION NETWORK PUBLIC
DOMAIN OCCUPATION AGREEMENTS
Any Proposed Future Radio and Television Network Public Domain Occupation
Agreement or the Local Authority Direct Authorisation Approval to which it
relates must comply with the following Essential Principles in order to
qualify as an Approved Future Radio and Television Network Public Domain
Occupation Agreement:
1. The normal expiration date of the Proposed Future Radio and Television
Network Public Domain Occupation Agreement should not be earlier than
five years following the Final Maturity Date (as such term is defined in
the Facility Agreement).
2. Early termination of the Proposed Radio and Television Network Public
Domain Occupation Agreement by the Local Authority without cause (motif
d'interet general) should be permitted only upon the giving of at least
three months' notice by the Local Authority to the relevant member of
the Group.
3. The Proposed Future Radio and Television Network Public Domain
Occupation Agreement should not limit the ability of the relevant member
of the Group to use the infrastructure in the geographical area covered
by the Proposed Future Radio and Television Network Public Domain
Occupation Agreement to service neighbouring geographical areas, during
the term of the Radio and Television Network Public Domain Occupation
Agreement.
4. The Proposed Future Radio and Television Network Public Domain
Occupation Agreement should not limit the ability of the relevant member
of the Group to develop telecommunications services (including
telephone, high-speed data transmission, video, Internet access, multi-
media services and related activities).
142
SCHEDULE 8B
PART B
CERTIFICATE OF COMPLIANCE WITH ESSENTIAL PRINCIPLES OF PERMITTED FUTURE RADIO
AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION AGREEMENTS
PARIBAS
0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
[DATE]
Attention: .
Dear Sirs,
MEDIARESEAUX MARNE S.A.
FRF 700,000,000 SECURED CREDIT FACILITY
FACILITY AGREEMENT DATED 1998)
(THE "AGREEMENT")
We refer to the Agreement and, in particular Clause 10.2(q)(i)(A)(1) and
Schedule 8B Part A thereof. Terms defined in the Agreement shall have the same
meaning when used in this Certificate.
We hereby confirm that [we anticipate signing] [ ., an Acquired Company,
anticipates signing a Radio and Television Network Public Domain Occupation
Agreement with . as Local Authority, and that such Radio and Television Network
Public Domain Occupation Agreement complies with the Essential Principles of
Permitted Future Radio and Television Network Public Domain Occupation
Agreements contained in Schedule 8B, Part A of the Agreement.
Yours faithfully,
Mediareseaux Marne S.A.
by
.
Authorised Officer
143
SCHEDULE 8B
PART C
DOCUMENTS REQUIRED TO BE DELIVERED TO THE FACILITY AGENT FOR APPROVAL OF
A PROPOSED FUTURE RADIO AND TELEVISION PUBLIC DOMAIN OCCUPATION AGREEMENT AS A
PERMITTED FUTURE RADIO AND TELEVISION NETWORK PUBLIC DOMAIN OCCUPATION
AGREEMENT
The following is a list of documents a copy of which the Parent must
furnish to the Facility Agent before any Proposed Future Radio and
Television Network Public Domain Occupation Agreement relating to the Cable
Broadcasting and Telecommunications Systems may qualify as a Permitted
Future Radio and Television Network Public Domain Occupation Agreement:
(a) The relevant Local Authority Direct Authorisation Approval required
pursuant to the Cable Broadcasting and Telecommunications Laws,
approving the Proposed Future Radio and Television Network Public
Domain Occupation Agreement.
(b) The signed Proposed Future Radio and Television Network Public Domain
Occupation Agreement, together with evidence that copies of the text
of the Local Authority Public Service Delegation Approval and such
signed Proposed Future Radio and Television Network Public Domain
Occupation Agreement have been transmitted to the relevant prefecture
as required by law for the purposes of a controle de legalite.
(c) One of more of the following documents:
(i) a certification to the effect that the relevant member of the
Group has been informed by the Local Authority that the
prefecture has not requested any further information or
documents with respect to the Local Authority Direct
Authorisation Approval and has not received a request by any
third party for a recours administratif within the time limits
required by law; or
(ii) a certification to the effect that the relevant member of the
Group has been informed by the Local Authority that the
prefecture has requested further information or documents with
respect to the Local Authority Direct Authorisation Approval,
and that such further information or documents have been
provided; and/or that the Local Authority has received a request
by any third party for a recours administratif but that the
Local Authority has decided not to revoke the Local Authority
Direct Authorisation Approval; or
(iii) a certification to the effect that the relevant member of the
Group has been informed by the Local Authority that such further
information has been requested and/or that such a request for a
144
recours administratif has been made but that the Parent has
concluded that it is likely that such further information will
result in a favourable decision by the prefecture and/or that
such recours administratif will not result in a revocation by
the Local Authority of its decision. In such case, the Facility
Agent shall transmit such certification, together with any
documents in support of such conclusion provided by the Borrower
to the Banks. The Banks shall be entitled to review such
materials for a period not in excess of thirty (30) days and the
request by the prefecture for further information and/or the
request for a recours administratif shall not bar the Proposed
Future Radio and Television Network Public Domain Occupation
Agreement from becoming a Permitted Future Radio and Television
Network Public Domain Occupation Agreement so long as the
Majority Banks consent thereto (such consent not to be
unreasonably withheld).
(d) Where relevant, one or more of the following documents:
(i) a certification of the Parent to the effect that the relevant
prefecture or any third party (tiers) with standing (interet a
agir) has filed such an appeal with the administrative court and
that such appeal has been denied by the administrative court,
such certification to be accompanied by a copy of the decision
of the administrative court; or
(ii) a certification of the Parent to the effect that the relevant
prefecture or any third party (tiers) with standing (interet a
agir) has filed such an appeal with the administrative court
(tribunal administratif), but that the Parent has concluded that
such appeal is without legal foundation. In such case, the
Facility Agent shall transmit such certification, together with
any documents in support of such conclusion provided by the
Parent (including, if so requested by the Facility Agent, a
legal opinion of external counsel to the Borrower provided at
the expense of the Borrower) to the Banks. The Banks shall
review such materials for a period not in excess of thirty (30)
days and the Proposed Future Radio and Television Network Public
Domain Occupation Agreement shall qualify as a Permitted Future
Radio and Television Network Public Domain Occupation Agreement
if the Majority Banks determine (such determination not to be
unreasonably withheld) that such appeal is without legal
foundation.
145
SCHEDULE 9
ADDRESSES FOR NOTICES
THE PARENT: 00, xxx Xxxxxx Xxxxxxxx
00000 Xxxxxx-xxx-Xxxxx
Xxxxxx
Attention: President of the Board of Directors
Copy : Financial and Administrative Director
Facsimile: (33) (0) 0.00.00.00.00
with copies to:
---------------
United Pan-Europe Communications
Xxxx. Xxxxxxxxxxxx 000
XX Xxx 00000
0000 XX Xxxxxxxxx
Attention : Chief Financial Officer
Fax no: 00 (00) 00000 0000
THE FACILITY AGENT: 0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxxxxx: Xxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
Reference: 384 DOM "Coordination des Financements
Structures"
Copy: Xxxxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
Reference: 401 Media/Telecom/Finance Group
THE SECURITY AGENT: 0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxxxxx: Xxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
Reference: 384 DOM "Coordination des Financements
Structures"
Copy: Xxxxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
146
Reference: 401 Media/Telecom/Finance Group
THE ARRANGER: 0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxxxxx: Xxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
Reference: 384 DOM "Coordination des Financements
Structures"
Copy: Xxxxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
Reference: 401 Media/Telecom/Finance Group
THE BANKS: 0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxxxxx: Xxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
Reference: 384 DOM "Coordination des
Financements Structures"
Copy: Xxxxxxxxx Xxxxxxxx
Facsimile: (33) (0) 0 00 00 00 00
Reference: 401 Media/Telecom/Finance Group
THE ACCEDING BORROWERS Details to be provided to the Facility Agent by
(IF ANY): the Parent or by the relevant Acceding Borrower at
the time of the signature of the Borrower
Accession Notice.
147
SCHEDULE 10
1998 BUSINESS PLAN
148
SCHEDULE 11
INTEREST RATE PROTECTION STRATEGY
The Parent will conclude or cause to be concluded by any Acceding Borrowers,
Interest Rate Protection Agreements as follows :
i) The covenant of the Parent to comply with the present Interest Rate
Protection Strategy will commence on the date at which the aggregate amount
of the Advances first reaches FRF 200,000,000. The Parent and any Acceding
Borrower shall fulfil such requirement, and provide evidence thereof to the
Facility Agent, within ten (10) Banking Days from such date.
ii) The covenant of the Parent to comply with the present Interest Rate
Protection Strategy will cease to be in effect as from the date the amount
of the Advances has become less than FRF 200,000,000.
iii) Reference Rate : 3 month or 6 month LIBOR
Strike Price : no more than 8% per annum
iv) Type of instrument : cap or collar
v) Minimum fraction of outstanding to be covered as follows:
Outstanding Amount Amount to be covered
------------------ --------------------
Less than FRF 200,000,000 Nil
Greater than or equal to FRF 200,000,000 but less FRF 100,000,000
than FRF 250,000,000
Greater than or equal to FRF 250,000,000 but less FRF 125,000,000
than FRF 300,000,000
Greater than or equal to FRF 300,000,000 but less FRF 150,000,000
than FRF 350,000,000
Greater than or equal to FRF 350,000,000 but less FRF 175,000,000
than FRF 400,000,000
Greater than or equal to FRF 400,000,000 but less FRF 200,000,000
than FRF 450,000,000
Greater than or equal to FRF 450,000,000 but less FRF 225,000,000
than FRF 500,000,000
166
Greater than or equal to FRF 500,000,000 but less FRF 250,000,000
than FRF 550,000,000
Greater than or equal to FRF 550,000,000 but less FRF 275,000,000
than FRF 600,000,000
Greater than or equal to FRF 600,000,000 but less FRF 300,000,000
than FRF 650,000,000
Greater than or equal to FRF 650,000,000 but less FRF 325,000,000
than FRF 700,000,000
FRF 700,000,000 FRF 350,000,000
vi) Minimum duration of Interest Rate Protection Agreements : 4 years as from
the date of signature, or, if less, a duration equal to the time remaining
to run between the date of signature of the Interest Rate Protection
Agreements, and the date at which the amount of the Advances shall become
less than FRF 200,000,000 according to the repayment schedule (Clause 5.2
of the Agreement)
vii) Transactions will be concluded pursuant to the master agreements sponsored
by the Association Francaise des Banques.
viii) The Parent shall provide the Facility Agent with proof of the signature of
each Interest Rate Protection Agreement.
167
SCHEDULE 12
ACQUIRED COMPANY NEGATIVE PLEDGE LETTER
LETTERHEAD OF ACQUIRED COMPANY
PARIBAS
0, xxx x'Xxxxx
00000 Xxxxx
Xxxxxx
[DATE]
Attention: .
Dear Sirs,
MEDIARESEAUX MARNE S.A.
FRF 700,000,000 SECURED CREDIT FACILITY
FACILITY AGREEMENT DATED . 1998)
(the "AGREEMENT")
We refer to the Agreement and, in particular Clause 10.1(ff) thereof. Terms
defined in the Agreement shall have the same meaning when used in this
Certificate.
We hereby undertake that, from the date hereof and so long as any monies are
owing under any of the Facility Documents, any part of the Advances remains
outstanding, or any Overdraft Utilisation remains outstanding, without the prior
written consent of the Facility Agent acting on the instructions of the Majority
Banks, we will not permit any Encumbrance (other than Permitted Encumbrances and
Encumbrances required to be granted to the Security Agent on behalf of the
Senior Creditors pursuant to the Facility) to subsist, arise or be created or
extended over all or any part of our present or future undertakings, assets,
rights or revenues to secure or prefer any of our present or future indebtedness
or that of any other person.
Yours sincerely,
.
168
SCHEDULE 13
SUBSTITUTION CERTIFICATE
To: PARIBAS as Facility Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
MEDIARESEAUX MARNE - FRF 700,000,000, SECURED CREDIT AGREEMENT DATED [DATE]
We refer to Clause 19.3 (Procedure for transfers).
1 We [ (the "EXISTING BANK") and [ ] (the "NEW BANK")
agree to the Existing Bank transferring to the New Bank all the Existing
Bank's rights and obligations referred to in the Schedule to this
Substitution Certificate, in accordance with Clause 19.3 (Procedure for
transfers).
2 The specified date for the purposes of Clause 19.3 is [date of transfer].
3 The Facility Office and address for notices of the New Bank for the purposes
of Clause 18 (Notices) are set out in the Schedule.
4 The New Bank hereby appoints the Facility Agent and the Security Agent to act
as its agent on its behalf, which appointment the Facility Agent and the
Security Agent accept, with respect to the Facility Documents and the
Security Documents, to hold the benefit of the same and confirms it is bound
by the Facility Documents and the Security Documents to which the Banks are
party.
5 This Substitution Certificate, by which we assign our rights to the New Bank,
shall be notified to the Parent and to any Acceding Borrower by huissier
(bailiff) in accordance with the provisions of Article 1690 of the Civil
Code.
6 This Substitution Certificate is governed by French law.
169
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[Details of the rights and obligations of the Existing Bank to be transferred,
including under the Subordination Agreement].
[Existing Bank] [New Bank]
By: By:
Date: Date:
[NEW BANK]
[Facility Office Address for notices]
[FACILITY AGENT]
[for and on behalf of itself as Facility Agent and on behalf of each party to
the Facility Agreement and the Parent and the relevant Acceding Borrower]
170
SCHEDULE 14
EXISTING THIRD-PARTY TRADEMARKS
Trademark Owner Registration number Date of registration
with French with French
National Industrial National Industrial
Property Institute Property Institute
Mediareseaux Mediareseaux SA 955635357 05 05 1995
Marne
MR Mediareseaux Mediareseaux SA 96609366 15-03-1996
(semi-figurative)
171
SCHEDULE 15
BORROWER ACCESSION NOTICE
-------------------------
To: Paribas as Facility Agent
From: name of Acceding Borrower and Mediareseaux Marne
Date: [ ]
We refer to the Agreement for a FRF700,000,000 Secured Credit Facility entered
into between Mediareseaux Marne and the Banks and Financial Institutions listed
in Schedule 1 to such Agreement (as from time to time amended, varied, extended,
restated, refinanced or replaced, hereinafter referred to as the "FACILITY
AGREEMENT").
We refer to Clause 2.5 of the Facility Agreement. Words and expressions defined
in the Facility Agreement have the same meanings when used in this deed.
We hereby give you notice that Name of Acceding Borrower of address shall become
a Borrower and hereby agrees to be bound by all the terms of the Facility
Agreement as Borrower in accordance with Clause 2.5 of the Facility Agreement,
as if it had been a party thereto at the date of the signature of the Facility
Agreement.
The address for notices of name of Acceding Borrower for the purposes of Clause
19.1 of the Facility Agreement is:
[
]
This Notice is governed by French law.
[NAME OF ACCEDING BORROWER] MEDIARESEAUX MARNE
Authorised Signatory
[Appropriate execution Clause]
By: By:
172
By:
PARIBAS
Signed for and on behalf of
Banque Paribas
by: [Denis de Paillerets]
by: [Xxxxxxxxx Xxxxxxxx]
173
SCHEDULE 16
FORM OF PARENT GUARANTEE
------------------------
GUARANTEE
---------
BETWEEN THE UNDERSIGNED:
(1) THE BANKS, as such term is defined in the Facility Agreement (including any
entity which becomes a Bank hereafter pursuant to the provisions of the
Facility Agreement), represented by Paribas, in its capacity as Security
Agent (hereinafter the "BENEFICIARIES");
(2) PARIBAS, a societe anonyme with directorate and supervisory board organised
under the laws of France, with a registered capital of FRF 5,761,476,600,
located at 0, xxx x'Xxxxx, 00000 Xxxxx, Xxxxxx, duly registered in the
Registry of Commerce and Companies of Paris under no 662 047 885, acting
in its own name and as a mandataire (hereinafter the "SECURITY AGENT") and
(3) MEDIARESEAUX MARNE, a societe anonyme organised under the laws of France,
with a share capital of FRF 144,000,000, whose registered office is 12, rue
Xxxxxx Xxxxxxxx, 00000 Xxxxxx-xxx-Xxxxx, Xxxxxx, and which is registered at
the Registry of Commerce and Companies of Xxxxx under no 400 461 950
(hereinafter the "GUARANTOR").
WHEREAS:
(A) Pursuant to a facility agreement dated 1998 (the "FACILITY
AGREEMENT") between inter alia, Paribas as Facility Agent, Paribas as
Security Agent, the Banks named therein, and the Guarantor as Parent and
Original Borrower, the Banks have agreed to make available to the Guarantor
and to Acceding Borrowers a loan facility for a maximum principal amount of
FRF 700,000,000 (seven hundred million French francs).
(B) Pursuant to the terms of the Facility Agreement, the Guarantor has promised
to guarantee to the Beneficiaries the payment of any sum due by any
Acceding Borrower (as such term is defined in the Facility Agreement)
authorised to use all or part of the credit facility made available
pursuant to the terms of the Facility Agreement.
(C) [ACCEDING BORROWER] a FORM OF COMPANY, organised under the laws of France,
with a registered capital of FRF . , xxxxxxx xx . , Xxxxxx, duly registered
in the Registry of Commerce and Companies of under no . (hereinafter the
"DEBTOR") wishes to accede to the Facility Agreement as an Acceding
Borrower in order to benefit from all or part of the credit facility made
available pursuant to the Facility Agreement. As such right is subject to
the granting of a guarantee by the Guarantor in favour of the
Beneficiaries, represented by the Security Agent, the parties have
concluded this agreement.
174
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1 GUARANTEE
---------
1.1 The Guarantor hereby expressly guarantees on an in solidum basis (caution
solidaire) the payment of all amounts which are or become due by the Debtor
to the Banks pursuant to the Facility Agreement (hereinafter the
"GUARANTEED LIABILITIES") up to an aggregate principal amount of six
hundred and eighty million French francs (FRF 680,000,000) plus interests,
commissions, costs and accessory amounts of any kind.
1.2 In consequence thereof, and waiving any right it may have pursuant to
Articles 2021 and 2026 of the Civil Code (renonciation aux benefices de
discussion et de division), the Guarantor undertakes unconditionally and
irrevocably to pay immediately to the Security Agent, in its capacity as
agent of the Beneficiaries, on simple written demand of the Security Agent,
all Guaranteed Liabilities which may become due for any reason whatsoever.
1.3 In the event that the Guarantor becomes entitled to be subrogated to the
rights, privileges or security of the Beneficiaries, or in the event that
the Guarantor becomes substituted in respect of the Beneficiaries by virtue
of any such subrogation, the Guarantor agrees to refrain from exercising
any action or right as against the Debtor until the Beneficiaries have
received full payment of the Guaranteed Liabilities.
1.4 The Guarantor shall not be entitled to benefit from any legal or judicial
postponement which may be claimed by the Debtor.
1.5 Any amount paid by the Guarantor hereunder shall be paid without set-off
against any amounts which may be otherwise due by the Beneficiaries and net
of any present or future taxes, duties, withholdings or deductions
whatsoever which may be made, withheld or deducted by or on behalf of any
French or foreign tax authorities.
2 REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
-----------------------------------------------
2.1 The Guarantor expressly represents and warrants that the signature of this
guarantee agreement has been duly authorised by resolutions adopted on by
its board of directors, pursuant to Article 98 and Articles 101 et seq of
the law no 66-537 24th July 1966.
3 TERM
----
The obligations resulting from this Guarantee Agreement shall remain in
force for as long as (i) the Facility Documents remain in force and
applicable or (ii) any amount remains due and payable in respect of the
Guaranteed Liabilities.
Consequently, the Guarantor shall not be released from its obligations
hereunder until such time as (i) none of the Facility Documents remains in
force, and (ii) no amount remains due in respect of the Guaranteed
Liabilities.
175
4 GOVERNING LAW AND JURISDICTION
------------------------------
4.1 This Agreement is governed by French law as to its validity, construction
and enforcement.
4.2 The parties hereby irrevocably consent to the exclusive jurisdiction of the
Commercial Court of Paris (Tribunal de Commerce de Paris) in connection
with any action or proceeding arising out of this Guarantee Agreement or
any documents or instruments delivered pursuant to this Agreement.
Signed in Paris in three (3) copies on:
THE BANKS )
Beneficiaries )
Represented by : )
PARIBAS )
Represented by:
Denis de Paillerets )
Xxxxxxxxx Xxxxxxxx )
PARIBAS )
Security Agent )
Represented by:
Denis de Paillerets )
Xxxxxxxxx Xxxxxxxx )
MEDIARESEAUX MARNE )*
Guarantor )
Represented by : )
Xxxxxxx Drahi )
President )
(*) Insert the handwritten mention: "Good for in solidum guarantee for the
sum of FRF 680,000,000 and any interest, commissions, fees and accessories,
as described more fully above."
176
SIGNATURE
THE BORROWER:
------------
Signed for and on behalf of )
MEDIARESEAUX MARNE )
by: Xxxxxxx Drahi
THE ARRANGER:
------------
Signed for and on behalf of )
PARIBAS )
by: Denis de Paillerets
by: Xxxxxxxxx Xxxxxxxx
THE FACILITY AGENT
------------------
Signed for and on behalf of )
PARIBAS )
by: Denis de Paillerets
by: Xxxxxxxxx Xxxxxxxx
THE SECURITY AGENT
------------------
Signed for and on behalf of )
PARIBAS )
by: Denis de Paillerets
by: Xxxxxxxxx Xxxxxxxx
THE BANKS
PARIBAS )
by: Denis de Paillerets
by: Xxxxxxxxx Xxxxxxxx
177
