Schedule to the
Exhibit 99.5
Schedule
to the
2002 Master Agreement
dated as of 4 June 2007
between
Credit Suisse International, an unlimited company incorporated under the laws of England and Wales ("Party A") | and | Virgin Entertainment Investment Holdings Limited, a limited liability company incorporated under the laws of the British Virgin Islands ("Party B") |
Part 1
Termination Provisions
In this Agreement:-
(a)
Specified Entity. "Specified Entity" means "Affiliates" in relation to Party A and Party B for the purpose of the "Default Under Specified Transaction" provision (Section 5(a)(v)).
(b)
Specified Transaction. Specified Transaction will have the meaning specified in Section 14.
(c)
Cross Default. The "Cross Default" provision (Section 5(a)(vi)) will apply to Party A and Party B amended as follows:-
Specified Indebtedness
Instead of the definition in Section 14 of this Agreement, "Specified Indebtedness" means any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) (a) in respect of borrowed money, and/or (b) in respect of any Specified Transaction (except that, for this purpose only, the words "and any other entity" will be substituted for the words "and the other party to this Agreement (or any Credit Support Provider of such other party or any applicable Specified Entity of such other party)" where they appear in the definition of Specified Transaction and the words “which is not a Transaction under this Agreement but” will be deleted).
Threshold Amount
"Threshold Amount" means:
(i) with respect to Party A, the lesser of three percent (3%) of the shareholders’ equity of Party A (as shown in the most recent audited financial statements of Party A) and USD 25,000,000 (including the United States Dollar equivalent of obligations stated in any other currency or currency unit); and
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(ii) with respect to Party B, the lesser of three percent (3%) of the shareholders’ equity of Party B (as shown in the most recent audited financial statements of Party B) and USD 10,000,000 (including the United States Dollar equivalent of obligations stated in any other currency or currency unit).
(d)
Credit Event Upon Merger. The "Credit Event Upon Merger" provision (Section 5(b)(v)) will apply to Party A and Party B.
(e)
Automatic Early Termination. The "Automatic Early Termination" provision of Section 6(a) will not apply to Party A or Party B.
(f)
Termination Currency. "Termination Currency" means the currency selected by the party which is not the Defaulting Party or the Affected Party, as the case may be, or where there is more than one Affected Party the currency agreed by Party A and Party B. However, the Termination Currency will be one of the currencies in which payments are required to be made in respect of Transactions. If the currency selected is not freely available, or where there are two Affected Parties and they cannot agree on a Termination Currency, the Termination Currency will be United States Dollars.
(g)
Additional Termination Event. Additional Termination Event will not apply.
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Part 2
Tax Representations
(a)
Payer Tax Representations. For the purpose of Section 3(e), Party A and Party B each makes the following representation:-
It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 9(h) of this Agreement) to be made by it to the other party under this Agreement. In making this representation, it may rely on:-
(i)
the accuracy of any representation made by the other party pursuant to Section 3(f) of this Agreement;
(ii)
the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii); and
(iii)
the satisfaction of the agreement of the other party contained in Section 4(d);
except that it will not be a breach of this representation where reliance is placed on clause (ii) above, and the other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.
(b)
Payee Tax Representations. For the purpose of Section 3(f),
(i)
Party A makes no Payee Tax Representations.
(ii)
Party B makes no Payee Tax Representations.
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Part 3
Agreement to Deliver Documents
Each party agrees to deliver the following documents as applicable:-
(a)
For the purpose of Section 4(a)(i) of this Agreement, tax forms, documents or certificates to be delivered are:-
Party required to deliver document | Form/Document/ Certificate | Date by which To be delivered |
|
|
|
Not Applicable | Not Applicable | Not Applicable |
(b)
For the purpose of Section 4(a)(ii) of this Agreement, other documents to be delivered are:-
Party required to deliver document | Form/Document/ Certificate | Date by which to be delivered | Covered by Section 3(d) Representation |
|
|
|
|
Party A and Party B | Evidence reasonably satisfactory to the other party as to the names, true signatures and authority of the officers or officials signing this Agreement or any Confirmation on its behalf | Upon execution of this Agreement and, if requested, upon execution of any Confirmation | Yes |
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Party A and Party B | A copy of the annual report for such party containing audited or certified financial statements for the most recently ended financial year | Upon request, as soon as publicly available | Yes |
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Part 4
Miscellaneous
(a)
Addresses for Notices. For the purpose of Section 12(a):-
(i)
Address for notices or communications to Party A :-
Address specified in the Confirmation or otherwise advised by the acting Office sending the same.
Any notice or communication sent to Party A in connection with any matter arising under Section 5 or 6 will be copied to the following address:
Address:
One Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Swift:
Credit Suisse International CSFP GB2L
Facsimile No.:
+ 00 (0) 00 0000 0000
Attention:
General Counsel Europe - Legal and Compliance Department
(ii)
Address for notices or communications to Party B:-
Address: | Xxxxxxxxx Xxxxxxxx X.X. Xxx 00 Xxxx Xxxx Xxxxxxx British Virgin Islands | Attention: | The Directors |
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|
|
|
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| Facsimile No.: | x0 000 000 0000 |
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With a copy to:-
Address: | Abacus Financial Services Limited La Motte Xxxxxxxx Xx Xxxxx Xxxxxx Xx Xxxxxx XX0 0XX Jersey | Attention: | Xxxxx Xxxxxx |
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| Facsimile No.: | 01532 602 035 |
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(For all purposes.)
(b)
Process Agent. For the purpose of Section 13(c):-
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Party A: Not Applicable
Party B appoints as its Process Agent:
Virgin Management Ltd, 000 Xxxxxxx Xxxx Xxxx, Xxxxxx X0 0XX, Attention: Company Secretary Fax 000 0000 0000
(c)
Offices. The provisions of Section 10(a) will apply to this Agreement.
(d)
Multibranch Party. For the purpose of Section 10(b):-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party
(e)
Calculation Agent. The Calculation Agent is Party A unless otherwise agreed in a Confirmation in relation to the relevant Transaction.
(f)
Credit Support Document. Details of any Credit Support Document: With respect to Party B: the ISDA Credit Support Deed between the parties dated 4 June 2007.
(g)
Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable.
(h)
Governing Law. This Agreement will be governed by and construed in accordance with English law and each party hereby submits to the jurisdiction of the English Courts.
(i)
Netting of Payments. Multiple Transaction Payment Netting will not apply for the purposes of Section 2(c) of this Agreement. Nevertheless, to reduce settlement risk and operational costs, the parties agree that they will endeavour to net across as many Transactions as practicable wherever the parties can administratively do so.
(j)
Affiliate. Affiliate will have the meaning specified in Section 14 of this Agreement.
(k)
Absence of Litigation. For the purpose of Section 3(c) of this Agreement:
“Specified Entity” means in relation to Party A and Party B, such party’s Affiliates.
(l)
No Agency. The provisions of Section 3(g) will apply to this Agreement.
(m)
Additional Representation. Additional Representation will apply. For the purpose of Section 3 of this Agreement, the following will constitute an Additional Representation:-
(i)
Relationship Between Parties. Each party will be deemed to represent to the other party on the date on which it enters into a Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction):
(1)
Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction, it being understood that
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information and explanations related to the terms and conditions of a Transaction will not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of that Transaction.
(2)
Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction.
(3)
Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction.
(n)
Recording of Conversations. Each party (i) consents to the recording of telephone conversations between the trading, marketing and other relevant personnel of the parties in connection with this Agreement or any potential Transaction, (ii) agrees to obtain any necessary consent of, and give any necessary notice of such recording to, its relevant personnel and (iii) agrees, to the extent permitted by applicable law, that recordings may be submitted in evidence in any Proceedings.
Part 5
Other Provisions
(a)
Scope of Agreement. This Agreement is transaction specific and only the prepaid variable forward transaction between the parties in respect of the shares of Virgin Media, Inc. dated on or around the date of this Agreement will be governed by and be subject to this Agreement.
(b)
Change of Account. Section 2(b) of this Agreement is hereby amended by the addition of the following after the word "delivery" in the first line thereof:-
"to another account in the same legal and tax jurisdiction as the original account"
(c)
Incorporation of Protocol Terms. The parties agree that the definitions and provisions contained in Annexes 1 to 18 and Section 6 of the 2002 Master Agreement Protocol published by the International Swaps and Derivatives Association, Inc. on 15 July, 2003 are incorporated into and apply to this Agreement. References in those definitions and provisions to any “ISDA 2002 Master Agreement” and/or “2002 Master” will be deemed to be references to this Agreement.
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IN WITNESS WHEREOF the parties have executed this Schedule on the respective dates specified below with effect from the date specified on the first page of this document.
CREDIT SUISSE INTERNATIONAL
VIRGIN ENTERTAINMENT INVESTMENT HOLDINGS LIMITED
By:___________________________________
By:_______________________________
Name:
Name:
Title:
Title:
Date:
Date:
By:___________________________________
By:_______________________________
Name:
Name:
Title:
Title:
Date:
Date:
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