THIS AGREEMENT is made on July 2004
BETWEEN
(1) TELEWEST COMMUNICATIONS PLC whose registered office is at Export
House, Cawsey Way, Woking, Surrey GU21 6QX (the VENDOR);
(2) TELEWEST GLOBAL, INC., a corporation organized under the laws of the
State of Delaware, the address of whose office is c/o CT Corporation
System, 1209 Orange Street, Wilmington, Delaware 19801, United States
of America (NEW TELEWEST); and
(3) TELEWEST UK LIMITED whose registered office is at Export House, Cawsey
Way, Woking, Surrey GU21 6QX (TELEWEST UK).
WHEREAS
(A) It is intended to implement a restructuring of the Vendor and Telewest
Jersey (the FINANCIAL RESTRUCTURING) comprising, among other things, the
following steps:
(a) the Vendor will transfer the Business (as defined below) to Telewest
UK, subject, for the avoidance of doubt, to the interests of and
encumbrances created in favour of the Beneficiaries under the Security
Documents;
(b) the Vendor will enter into a creditors' scheme of arrangement pursuant
to section 425 of the Act (the Scheme);
(c) Telewest Jersey will enter into creditors' schemes of arrangement
pursuant to section 425 of the Act and article 125 of the Jersey Act
(the JERSEY SCHEME);
(d) pursuant to the Scheme all Scheme Claims will be discharged and fully
paid and non-assessable shares of the common stock, par value $0.01
per share, of New Telewest will be distributed to Scheme Creditors;
and
(e) both the Vendor and Telewest Jersey intend to go into solvent
liquidation.
(B) Telewest Jersey as at the date of this Agreement is a wholly-owned
subsidiary of the Vendor.
(C) New Telewest as at the date of this Agreement is a wholly-owned
subsidiary of the Vendor.
(D) Telewest UK as at the date of this Agreement is a wholly-owned
subsidiary of New Telewest.
(E) The Vendor has agreed to transfer and Telewest UK has agreed to acquire
the Business for the consideration and upon the terms and conditions set
out in this Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
1.1 Words and expressions used in this Agreement shall have the meanings
set out in Schedule 1, unless the context requires otherwise.
1.2 The headings in this Agreement shall not affect its interpretation.
1.3 The Schedules comprise schedules to this Agreement and form part of
this Agreement.
2. AGREEMENT TO TRANSFER AND PRICE
2.1 The Vendor shall transfer the Business, and Telewest UK shall acquire
and take over the Business, as a going concern with effect from the
Completion Date.
2.2 In consideration of the Vendor fulfilling its obligations under clauses
2.1 and 6, Telewest UK, as acquiror, shall at Completion:
(a) assume responsibility for the satisfaction (and, as may be necessary,
payment and discharge) of all the Liabilities; and
(b) allot and issue to New Telewest 99 shares of (pound)1 each in the
capital of Telewest UK credited as fully paid-up,
and New Telewest shall issue to the Escrow Agent 245,000,000 (or such other
number as New Telewest shall agree with the Vendor in advance of the
Completion Date) fully paid and non-assessable shares of common stock, par
value $0.01 per share, of New Telewest, such issue to be conditional on the
occurrence of the Effective Date.
2.3 The consideration referred to in clause 2.2 shall be apportioned
between the Business Assets, the Trade Marks, the Domain Names, the
Goodwill and the Business IPR as set out in Schedule 7.
2.4 Each party hereby agrees that, notwithstanding the transfer envisaged
in this clause 2, the Business Assets shall be transferred subject to the
security described in the Security Documents and there shall be no release
of the Business Assets from all or any part of that security.
3. CONDITIONS PRECEDENT
3.1 Completion shall be conditional upon:
(a) the Vendor notifying New Telewest and Telewest UK that the Vendor
expects to satisfy all of the conditions to delivering an office copy
of the Order to the Registrar of Companies within two Business Days of
such notification; and
(b) the Senior Lenders having granted any and all consents and waivers
required under the Senior Secured Credit Facility Agreement and the
related security documentation for the Vendor to transfer the Business
under this Agreement.
3.2 If the Conditions Precedent have not been satisfied or waived by the
later of (i) the date that is 90 days after the date of the Commitment
Letter; or (ii) the date that is 60 days after the date of any vote by
creditors to approve the Scheme and the Jersey Scheme, subject to such vote
occurring on or before the date that is 75 days after the date of the
Commitment Letter (or such later date as the parties may agree), this
Agreement shall automatically terminate and no party shall have any claim
of any nature whatsoever against any other party under or in respect of
this Agreement.
4. COMPLETION
4.1 Completion shall take place immediately following the fulfilment of the
Conditions Precedent upon which the events set out in clauses 4.2 and 4.3
shall take place.
4.2 On Completion, the Vendor shall cause to be delivered or made available
to Telewest UK or held to Telewest UK's order save to the extent such
documents are not already held by the Security Trustee pursuant to the
terms of the Security Documents:
(a) such documents as Telewest UK may require to complete the sale and
purchase of the Business Assets (including, but not limited to, the
Vendor's interest in the Leasehold Property and the Subsidiaries); and
(b) such of the Business Assets as are tangible.
4.3 On Completion, Telewest UK shall allot and issue to New Telewest,
credited as fully paid-up, 99 shares of (pound)1 each in the capital of
Telewest UK and deliver to New Telewest a share certificate in respect
thereof.
4.4 Conditional on, and immediately upon, the occurrence of the Effective
Date, New Telewest shall issue to the Escrow Agent 245,000,000 (or such
other number as New Telewest shall agree with the Vendor in advance of the
Completion Date) fully paid and non-assessable shares of the common stock,
par value $0.01 per share, of New Telewest to be held pursuant to the terms
of the Escrow Agent Agreement for the benefit of the Vendor's shareholders
and the Scheme Creditors pursuant to the Scheme.
4.5 If and to the extent that any documents of transfer are not available
at Completion, the parties shall arrange for appropriate transfer documents
to be prepared and completed as soon as practicable after Completion.
5. TITLE AND SUPPLEMENTARY PROVISIONS
5.1 Subject to clause 5.2 below, beneficial ownership and risk in respect
of the Business Assets shall pass to Telewest UK on Completion. Title to
all Business Assets which can be transferred by delivery shall pass on
delivery and such delivery shall be deemed to take place at the Vendor's
registered office (or at such other place as the parties may agree) on
Completion.
5.2 Insofar as the Business Assets comprise the benefit of Claims and the
benefit (subject to the burden) of Contracts which cannot effectively be
assigned or transferred by the Vendor to Telewest UK (or its nominee)
except by agreements of novation or without obtaining a consent, an
approval, a waiver or the like from a third party (CONSENTS) including,
without limitation, the Contracts listed in Part B of Schedule 8:
(a) the Vendor shall take all reasonable steps to procure that such
Contracts are novated or such Claims are assigned to Telewest UK, TCN
or Telewest Limited (as the case may be) as and to the extent
identified in Part B of Schedule 8 or that the necessary Consents are
obtained and Telewest UK shall, and shall procure that TCN and
Telewest Limited shall, co-operate with the Vendor for such purpose;
(b) unless or until each of such Contracts or Claims shall have been so
novated or assigned or any necessary Consent obtained, the Vendor
shall from the Completion Date receive and hold the benefit of the
relevant Contract or Claim as trustee on trust for Telewest UK, TCN or
Telewest Limited (as the case may be) and shall pay to Telewest UK,
TCN or Telewest Limited (as the case may be) (as directed by Telewest
UK) promptly upon receipt any sums received by it under any such
Contract or pursuant to any such Claim; and
(c) Telewest UK shall (at Telewest UK's cost), and shall procure that TCN
and Telewest Limited shall (at the cost of TCN or, as applicable,
Telewest Limited), from the Completion Date assist the Vendor to
perform all the obligations of the Vendor under any such Contracts
which are to be transferred to each of them as and to the extent
identified in Part B of Schedule 8.
If any necessary Consent is not obtained within 3 months after the
Completion Date or is refused and the procedure set out in this clause 5.2
does not enable the full benefit of any Contract to be enjoyed by Telewest
UK, TCN or Telewest Limited (as the case may be) after Completion, the
Vendor and Telewest UK shall use all reasonable endeavours to achieve an
alternative solution pursuant to which (i) Telewest UK, TCN or Telewest
Limited (as the case may be) shall receive the full benefit of that
Contract and assume the associated obligations; and (ii) the Vendor is
released from such associated obligations.
6. TRADE MARKS, DOMAIN NAMES, GOODWILL AND BUSINESS IPR
6.1 The Vendor shall assign to TCN with full title guarantee absolutely,
with effect from the Completion Date, subject only to the terms and
conditions of any licences granted to third parties and otherwise free of
all charges, liens, options, licences and encumbrances, all of its rights,
title and interest in and to the Trade Marks, the Domain Names and the
Business IPR, including:
(a) all statutory and common law rights attaching to the Trade Marks,
together with the Goodwill; and
(b) the right to sue (and to retain damages recovered) in respect of any
infringement or unauthorised use of any of the Trade Marks which may
have occurred before the Completion Date.
6.2 The Vendor agrees to perform (or procure the performance of) all acts
and things, and to make any filings and to give any notifications (or
procure the making of any filings or giving of any notifications), and to
execute and deliver (or procure the execution and delivery of) any
documents required to effect the assignment to TCN of the Trade Marks and
of all the rights of the Vendor to the Domain Names and the Business IPR
(including, for the avoidance of doubt, an assignment agreement
substantially in the form as set out in Schedule 13).
7. INTRA-GROUP LOANS AND TCN RECEIVABLE
7.1 The Vendor and Telewest UK shall, and the Vendor shall procure that
Flextech Limited, Fleximedia Limited, TCH and Yorkshire Cable
Communications Limited respectively shall, enter into novation agreements
substantially in the form as set out in Schedule 11 to novate each of the
Intra-group Loans to Telewest UK with effect from the Completion Date.
7.2 Immediately following Completion the Vendor shall serve a notice of
assignment substantially in the form as set out in Schedule 12 on TCN
notifying TCN of the assignment of the TCN Receivable to Telewest UK.
8. EXPENSES FUND
8.1 The Vendor, New Telewest and Telewest UK hereby agree that the Vendor
shall as at the Completion Date retain any cash held by the Vendor
immediately prior to Completion as the Expenses Fund to be held on the
terms set out in the remainder of this clause 8.
8.2 The Vendor hereby declares that as from the Completion Date it shall
hold the Expenses Fund and all moneys from time to time credited to the
Designated Account in respect of the Expenses Fund (including any interest
which accrues on the Expenses Fund and, for the avoidance of doubt, any
amounts received by the Vendor at any time after the Completion Date
including, without limitation, in respect of repayments of taxes or in
respect of any Debtors but excluding, for the avoidance of doubt, any
amounts received by the Vendor in respect of a Contract or Claim the
benefit of which the Vendor holds on trust for Telewest UK, TCN or Telewest
Limited pursuant to clause 5.2(b)) upon trust for Telewest UK absolutely
on, and subject to, the terms of this clause 8 and for no other purpose
whatsoever.
8.3 Telewest UK hereby irrevocably directs the Vendor, and the Vendor
hereby acknowledges such direction, to apply the Expenses Fund held by it
pursuant to clause 8.2 above as follows:
(a) to pay on demand such sums as the Vendor Liquidators may from time to
time require in respect or on account of their remuneration, expenses
and disbursements (together, in each case, with any VAT thereon)
properly incurred in contemplation of, or in relation to, the winding
up of the Vendor, subject only to the presentation to Telewest UK of
the Vendor Liquidators' invoices (provided that such invoices are
rendered in accordance with any resolution passed by the shareholders
of the Vendor in respect of the Vendor Liquidators' remuneration in
accordance with Rule 4.148A of the Insolvency Rules 1986);
(b) to pay on demand such sums as the Telewest Jersey Liquidators may from
time to time require in respect or on account of their remuneration,
expenses and disbursements (together, in each case, with any VAT or
other applicable sales tax thereon) properly incurred in contemplation
of, or in relation to, the winding up of Telewest Jersey, subject only
to the presentation to Telewest UK of the Telewest Jersey Liquidators'
invoices (provided that such invoices are rendered in accordance with
any resolution passed by the shareholders of Telewest Jersey in
respect of the Telewest Jersey Liquidators' remuneration in accordance
with Article 153 of the Jersey Act);
(c) to pay on demand such sums as the Creditor Beneficiaries may from time
to time require in respect of any costs and expenses owed to such
persons by the Vendor or Telewest Jersey (or TCN or Telewest Limited
to the extent that any relevant contract with any of the professional
advisers or other persons listed in Schedule 6 is either with or has
been novated to either of them) subject only to the presentation to
Telewest UK and the Vendor or Telewest Jersey (as the case may be) of
invoices (provided that such invoices are accompanied by evidence
reasonably satisfactory to Telewest UK and the Vendor or Telewest
Jersey (as the case may be) that any such costs and expenses are
reasonable and have been properly incurred by the relevant Creditor
Beneficiary submitting the invoice and that the Vendor, Telewest
Jersey, TCN or Telewest Limited is liable to pay such costs and
expenses);
(d) to pay on demand any such other sum as any other creditor (including,
for the avoidance of doubt, in respect of any taxation claims) of the
Vendor or, as applicable, Telewest Jersey (excluding, for the
avoidance of doubt, any Scheme Claim) may from time to time claim from
the Vendor or, as applicable, Telewest Jersey, but only to the extent
such claims have either been agreed or settled by the Vendor and/or
the Vendor Liquidators or, as applicable, Telewest Jersey and/or the
Telewest Jersey Liquidators or have been finally determined by a court
of competent jurisdiction; and
(e) to pay any amounts remaining in the Designated Account in respect of
the Expenses Fund (together with any interest accrued thereon) to
Telewest UK or to such persons as Telewest UK may direct on either:
(i) if liquidators have been appointed within 12 months of the
Effective Date, the Business Day immediately preceding the date on
which the Liquidators intend to file their final return; or (ii) if
liquidators have not been appointed within 12 months of the Effective
Date, the date that is 12 months after the Effective Date.
8.4 Telewest UK hereby authorises the Vendor to invest the Expenses Fund in
such interest bearing account as the Vendor, in its sole discretion, may
deem appropriate provided that the Expenses Fund shall be available to pay
the sums directed to be paid under clause 8.3(a) to (d) above.
8.5 For the term of the Senior Secured Credit Facility Agreement and the
Proposed Amended Senior Secured Credit Facility Agreement, Telewest UK
shall promptly notify the Agent in writing of the receipt and the amount of
any invoice presented to it under clause 8.3(a) to (d) above.
8.6 For the avoidance of doubt, Telewest UK will be paid, and the Vendor
undertakes to pay, a distribution of any amounts remaining in the
Designated Account in accordance with clause 8.3(e) above only after
payment has been made in respect of all sums directed to be paid under
clause 8.3(a) to (d) above.
8.7 Telewest UK irrevocably directs and the Vendor hereby acknowledges and
agrees that the Vendor shall close the Designated Account after the
distribution of any amounts remaining in the Designated Account pursuant to
clause 8.3(e).
9. INDEMNITY FOR VENDOR
9.1 In consideration of the Vendor entering into this Agreement, Telewest
UK agrees, subject to the occurrence of the Effective Date, to indemnify
and keep indemnified (to the fullest extent permitted by law) the Vendor
from and against any and all Indemnified Liabilities (excluding, for the
avoidance of doubt, any (i) Scheme Claims; (ii) Vendor Shareholder and
Bondholder Reorganisation Expenses; and (iii) any other Indemnified
Liabilities to the extent paid pursuant to clause 8.3(c) and (d) above),
whenever the same may arise or occur, including all claims in respect of
Indemnified Liabilities properly admitted for proof in the winding-up of
the Vendor (and any interest payable thereon) and the costs and expenses of
the winding-up of the Vendor save to the extent paid pursuant to clause
8.3(a).
9.2 For the avoidance of doubt, any payments to be made pursuant to the
indemnity in clause 9.1 shall be made by Telewest UK directly to the Vendor
Liquidators or any creditor, as applicable. For the avoidance of doubt, no
payment made by Telewest UK to the Vendor Liquidators pursuant to the
indemnity in clause 9.1 (if any) shall be made to the Designated Account.
9.3 This indemnity shall apply whether or not the winding-up of the Vendor
and/or the appointment of the Vendor Liquidators is valid and/or effective.
9.4 Telewest UK shall have no right of recourse against the Vendor for any
amounts paid by Telewest UK under the indemnity in clause 9.1 to any person
and Telewest UK waives any rights of recourse against the Vendor under that
indemnity.
9.5 The Vendor or the Vendor Liquidators (so far as it is not inconsistent
with the performance of the Vendor Liquidators' duties under the Insolvency
Legislation) shall as soon as reasonably practicable give notice to
Telewest UK of any proof of debt or claim received by the Vendor or the
Vendor Liquidators. Within seven days of Telewest UK receiving such notice
of the proof of debt or claim, Telewest UK shall inform the Vendor or the
Vendor Liquidators if, in its opinion, Telewest UK believes that the amount
of the claim the subject of the proof of debt or claim ought to be
disputed. Without prejudice to their powers and duties under the Insolvency
Legislation, the Vendor Liquidators shall consider Telewest UK's opinion
and may, if they consider appropriate in view of the powers, duties and
discretions given to them under the Insolvency Legislation, require the
creditor who has submitted the proof of debt or claim to produce further
evidence or may, in their sole discretion, reject the proof of debt or
claim and defend any appeal instigated by the creditor. Without prejudice
to the provisions of clause 8, Telewest UK undertakes to be responsible for
the costs of the Vendor and the Vendor Liquidators in considering Telewest
UK's opinion in the admission or rejection of such proof of debt or claim
and any subsequent appeals in relation to the rejection of such proof of
debt or claim. For the avoidance of doubt, any payments made pursuant to
the preceding sentence shall be made by Telewest UK directly to the Vendor
Liquidators. For the avoidance of doubt, upon an order relating to
Indemnified Liabilities being made in respect of any appeal, Telewest UK
shall upon any demand pay in full such sum that is ordered to be paid in
the winding-up of the Vendor or by the Vendor Liquidators and any interest
thereon (directly to the Vendor Liquidators or any creditor, as
applicable).
9.6 For the term of the Senior Secured Credit Facility Agreement and the
Proposed Amended Senior Secured Credit Facility Agreement, Telewest UK
shall, as soon as reasonably practicable, notify the Agent of any proof of
debt or claim being rejected and keep the Agent informed of the status and
result of any appeal under clause 9.5.
9.7 For the avoidance of doubt, any failure or refusal by the Vendor or the
Vendor Liquidators to comply with the provisions of clause 9.5 shall not
invalidate the indemnity in clause 9.1 or enable Telewest UK to refuse to
meet its obligations under that indemnity.
9.8 All payments to be made by Telewest UK under the indemnity in clause
9.1 shall be made in full without any set off, deduction, withholding,
counter claim or similar.
10. INDEMNITY FOR TELEWEST JERSEY
10.1 Telewest UK, subject to the occurrence of the Effective Date, further
agrees to indemnify and keep indemnified (to the fullest extent permitted
by law) Telewest Jersey from and against any and all Indemnified
Liabilities (excluding, for the avoidance of doubt, any (i) Scheme Claims;
(ii) Vendor Shareholder and Bondholder Reorganisation Expenses; and (iii)
any other Indemnified Liabilities to the extent paid pursuant to clause
8.3(c) and (d) above), whenever the same may arise or occur, including all
claims in respect of Indemnified Liabilities properly admitted for proof in
the winding-up of Telewest Jersey (and any interest payable thereon) and
the costs and expenses of the winding-up of Telewest Jersey save to the
extent paid pursuant to clause 8.3(b).
10.2 For the avoidance of doubt, any payments to be made pursuant to the
indemnity in clause 10.1 shall be made by Telewest UK directly to the
Telewest Jersey Liquidators or any creditor, as applicable. For the
avoidance of doubt, no payment made by Telewest UK to the Telewest Jersey
Liquidators pursuant to the indemnity in clause 10.1 (if any) shall be made
to the Designated Account.
10.3 This indemnity shall apply whether or not the winding-up of Telewest
Jersey and/or the appointment of the Telewest Jersey Liquidators is valid
and/or effective.
10.4 Telewest UK shall have no right of recourse against Telewest Jersey
for any amounts paid by Telewest UK under the indemnity in clause 10.1 to
any person and Telewest UK waives any rights of recourse against Telewest
Jersey under that indemnity.
10.5 Telewest Jersey or the Telewest Jersey Liquidators (so far as it is
not inconsistent with the performance of the Telewest Jersey Liquidators'
duties under the Insolvency Legislation) shall as soon as reasonably
practicable give notice to Telewest UK of any proof of debt or claim
received by Telewest Jersey or the Telewest Jersey Liquidators. Within
seven days of Telewest UK receiving such notice of the proof of debt or
claim, Telewest UK shall inform Telewest Jersey or the Telewest Jersey
Liquidators if, in its opinion, Telewest UK believes that the amount of the
claim the subject of the proof of debt or claim ought to be disputed.
Without prejudice to their powers and duties under the Insolvency
Legislation, the Telewest Jersey Liquidators shall consider Telewest UK's
opinion and may, if they consider appropriate in view of the powers, duties
and discretions given to them under the Insolvency Legislation, require the
creditor who has submitted the proof of debt or claim to produce further
evidence or may, in their sole discretion, reject the proof of debt or
claim and defend any appeal instigated by the creditor. Without prejudice
to the provisions of clause 8, Telewest UK undertakes to be responsible for
the costs of Telewest Jersey and the Telewest Jersey Liquidators in
considering Telewest UK's opinion in the admission or rejection of such
proof of debt or claim and any subsequent appeals in relation to the
rejection of such proof of debt or claim. For the avoidance of doubt, any
payments made pursuant to the preceding sentence shall be made by Telewest
UK directly to the Telewest Jersey Liquidators. For the avoidance of doubt,
upon an order relating to Indemnified Liabilities being made in respect of
any appeal, Telewest UK shall upon demand pay in full such sum that is
ordered to be paid in the winding-up of Telewest Jersey or by the Telewest
Jersey Liquidators and any interest thereon (directly to the Telewest
Jersey Liquidators or any creditor, as applicable).
10.6 For the term of the Senior Secured Credit Facility Agreement and the
Proposed Amended Senior Secured Credit Facility Agreement, Telewest UK
shall, as soon as reasonably practicable, notify the Agent of any proof of
debt or claim being rejected and keep the Agent informed of the status and
result of any appeal under clause 10.5.
10.7 For the avoidance of doubt, any failure or refusal by Telewest Jersey
or the Telewest Jersey Liquidators to comply with the provisions of clause
10.5 shall not invalidate the indemnity in clause 10.1 or enable Telewest
UK to refuse to meet its obligations under that indemnity.
10.8 All payments to be made by Telewest UK under the indemnity in clause
10.1 shall be made in full without any set off, deduction, withholding,
counter claim or similar.
11. PROPERTIES AND GUARANTEES
Part C of Schedule 3 shall apply to the assignment of the Leasehold
Property and to the substitution of TCN or Telewest Limited (as the case
may be) for the Vendor in relation to the Guarantees.
12. TRANSFER TAXES
Telewest UK shall discharge all UK transfer, documentary and registration
duties and taxes (including, for the avoidance of doubt, stamp duty, stamp
duty land tax and stamp duty reserve tax) and all US transfer, documentary
and registration duties or taxes, if any, which arise or become payable in
connection with the transfer of the Business (and the Trade Marks, the
Domain Names, the Goodwill and the Business IPR) pursuant to this
Agreement. For the avoidance of doubt, in no event shall Telewest UK be
liable to discharge any Vendor Shareholder and Bondholder Reorganisation
Expenses pursuant to this clause 12.
13. VAT
13.1 In the event that VAT is chargeable on any of the assets transferred
pursuant to this Agreement, the Vendor shall issue a VAT invoice to
Telewest UK in respect of such asset(s). Telewest UK shall pay to H.M.
Customs & Excise on account of the Vendor's liability to pay and account
for output tax an amount equal to any VAT due under such invoice in cleared
funds on or before the date on which the Vendor is required to account for
the VAT as output tax to H.M. Customs & Excise provided that, if the Vendor
issues the VAT invoice more than a month after the end of the VAT quarter
in which the transfer of the relevant asset(s) occurred, Telewest UK shall
pay to H.M. Customs & Excise on account of the Vendor's liability to pay
and account for output tax an amount equal to any VAT due within two
Business Days of the date on which the invoice is issued.
13.2 The Vendor shall be entitled prior to Completion to elect in
accordance with paragraph 2 of Schedule 10 to the Value Added Tax Act 1994
to waive the exemption from VAT in respect of the Leasehold Property. In
the event that the Vendor intends to make such an election, it will notify
Telewest UK of such an intention.
14. TAX CONDUCT
14.1 With a view to (a) minimising any liability of the Vendor to make or
suffer an actual payment of tax and (b) subject to (a), preserving so far
as possible tax reliefs available as at the Effective Date for use by
members of the New Telewest Group and in the future, the parties hereby
agree as follows.
SECTION 179A ELECTIONS
14.2 If, but for any election made pursuant to this clause 14.2:
(a) the transactions contemplated by this Agreement would result in
chargeable gains accruing to members of the New Telewest Group
pursuant to section 179 of the TCGA; and
(b) the Vendor would as at the Effective Date have allowable losses
available to it which losses are not required to eliminate or reduce
chargeable gains accruing to the Vendor,
the Vendor shall, and New Telewest shall procure that the relevant members
of the New Telewest Group shall, enter into such joint elections under
section 179A of the TCGA as may be necessary to ensure that chargeable
gains equal to the lower of (X) the amount of chargeable gains referred to
in sub-paragraph (a) above and (Y) the amount of excess allowable losses
referred to in sub-paragraph (b) above are treated as accruing not to the
relevant members of the New Telewest Group but to the Vendor.
14.3 If, but for any election made pursuant to this clause 14.3:
(a) the transactions contemplated by this Agreement would result in
allowable losses accruing to members of the New Telewest Group
pursuant to section 179 of the TCGA; and
(b) there would be insufficient allowable losses available to the Vendor
as at the Effective Date to eliminate any chargeable gains that have
accrued to it (such chargeable gains being, as reduced by any such
allowable losses as are available, the VENDOR'S NET CHARGEABLE GAINS),
the Vendor shall, and New Telewest shall procure that the relevant members
of the New Telewest Group shall, enter into such joint elections under
section 179A of the TCGA as may be necessary to ensure that allowable
losses equal to the lower of (X) the amount of allowable losses referred to
in sub-paragraph (a) above and (Y) the Vendor's net chargeable gains are
treated as accruing not to the relevant members of the New Telewest Group
but to the Vendor.
GROUP RELIEF
14.4 New Telewest shall procure that each member of the New Telewest Group
shall, in respect of the accounting period in which the Effective Date
occurs and any prior accounting period, make, give or enter into such
claims, elections, surrenders, notices or consents (whether unconditional
or conditional, whether or not forming part of any other return or tax
document, whether provisional or final, and including amendments to or
withdrawals of earlier claims, elections, surrenders, notices or consents)
as the Vendor shall validly direct in connection with the surrender of
losses or other amounts eligible for surrender by way of group relief
(within the meaning of Chapter IV of Part X of ICTA).
14.5 For the avoidance of doubt, New Telewest's obligations under clause
14.4 shall include an obligation to procure that each member of the New
Telewest Group claims to the extent required by the Vendor (for the
purposes of increasing the amounts eligible for surrender by any such
member of the New Telewest Group by way of group relief) any capital
allowances to which it is entitled in accordance with the Capital
Allowances Act 2001.
NO PAYMENT
14.6 No payment shall be made in connection with any election made in
accordance with clauses 14.2 or 14.3 or in connection with the surrender of
group relief as contemplated by clause 14.4.
15. WITHHOLDING TAX AND GROSSING UP
15.1 Telewest UK shall pay all sums payable by it under clauses 9 and 10
free and clear of all deductions or withholdings for or on account of tax
unless the deduction or withholding is required by law. If a deduction or
withholding is so required, Telewest UK shall pay such additional amount as
will ensure that the net amount received by the payee equals the full
amount which would have been received by it had no such deduction or
withholding been required.
15.2 If the party receiving an additional amount pursuant to clause 15.1
receives a credit for or refund of any tax payable by it or similar benefit
by reason of the deduction or withholding giving rise to the payment of the
additional amount, it shall reimburse to Telewest UK such proportion of the
additional amount as it shall reasonably determine leaves it in no better
or worse a position than it would have been in if the relevant deduction or
withholding had not been required.
15.3 If any tax authority brings into charge to tax any sum paid by
Telewest UK under clauses 9 or 10, then Telewest UK shall pay such
additional amount as shall be required to ensure that the total amount
paid, less the tax chargeable on such amount, is equal to the amount that
would otherwise be payable under clauses 9 or 10.
16. US TAX
16.1 The parties intend the Transaction to constitute steps in a single
plan of reorganisation of the Vendor and Telewest Jersey qualifying as a
"reorganisation" within the meaning of section 368(a)(1) of the US Internal
Revenue Code of 1986, as amended.
16.2 The Vendor shall take no action that would cause Telewest Jersey, TCN
or Telewest Limited to be regarded as a corporation or other business
entity for US federal income tax purposes.
16.3 Each of New Telewest and Telewest UK shall take no action that would
cause New Telewest or Telewest UK to be regarded other than as a
corporation for US federal income tax purposes.
16.4 Each of New Telewest and Telewest UK shall take no action that would
cause Telewest UK to be regarded other than as resident in the UK for tax
purposes.
17. ENTIRE AGREEMENT
This Agreement sets out the entire agreement and understanding between the
parties in respect of the sale and purchase of the Business (and the Trade
Marks, the Domain Names, the Goodwill and the Business IPR). It is agreed
that:
(a) no party has entered into this Agreement in reliance upon any
representation, warranty or undertaking of any other party which is
not expressly set out or referred to in this Agreement;
(b) all terms and conditions which are implied under the Sale of Goods Act
in a contract of sale of goods to which that Act applies are expressly
excluded from the sale and purchase under this Agreement, save that
this clause shall not exclude any liability under section 12 of the
Sale of Goods Act;
(c) a party may claim in contract for breach of this Agreement but shall
have no claim or remedy under this Agreement in respect of
misrepresentation (whether negligent or otherwise, and whether made
prior to, and/or in, this Agreement) or untrue statement made by any
other party; and
(d) this clause shall not exclude any liability for, or remedy in respect
of, fraudulent misrepresentation.
18. NOTICES
18.1 Any notice or other communication to be given by any party to any
other party under, or in connection with, this Agreement or the indemnities
set out in clauses 9 and 10 of this Agreement shall be in writing and
signed by or on behalf of the party giving it. For the avoidance of doubt,
notices under, or in connection with, this Agreement or the indemnities set
out in clauses 9 and 10 shall not be validly served, if sent by email. It
shall be served by sending it by fax to the number set out in clause 18.2,
or delivering it by hand or internationally recognised courier service, or
sending it by pre-paid recorded delivery, special delivery or registered
post, to the address set out in clause 18.2 and in each case marked for the
attention of the relevant party set out in clause 18.2 (or as otherwise
notified from time to time in accordance with the provisions of this clause
18). Any notice so served by hand, fax or post shall be deemed to have been
duly given:
(a) in the case of delivery by hand or internationally recognised courier
service, when delivered;
(b) in the case of fax, at the time of transmission; and
(c) in the case of prepaid recorded delivery, special delivery or
registered post, at 10.00 am on the second Business Day following the
date of posting,
provided that, in each case where delivery by hand or by fax occurs after
5.00 pm on a Business Day, or at any time on a day which is not a Business
Day, service shall be deemed to occur at 9.00 am on the next following
Business Day.
References to time in this clause are to local time at the address to which
the relevant notice is sent.
18.2 The addresses and fax numbers of the parties for the purpose of clause
18.1 are as follows:
THE VENDOR
Address: 160 Great Portland Street
London W1W 5QA
United Kingdom
Fax: +44 20 7299 5495
For the attention of: General Counsel
NEW TELEWEST
Address: c/o CT Corporation System
1209 Orange Street
Wilmington
Delaware 19801
United States of America
For the attention of: General Counsel
With a copy to:
Address: Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004
United States of America
Fax: +1 212 859 4000
For the attention of: Brad Eric Scheler
TELEWEST UK
Address: 160 Great Portland Street
London W1W 5QA
United Kingdom
Fax: +44 20 7299 5495
For the attention of: General Counsel
With a copy to:
Address: Fried, Frank, Harris, Shriver & Jacobson
(London) LLP
99 City Road
London EC1Y 1AX
United Kingdom
Fax: +44 20 7972 9602
For the attention of: Timothy Peterson
18.3 A party may notify any other party to this Agreement of a change to
its name, relevant addressee, address or fax number for the purposes of
this clause 18, provided that such notice shall only be effective on:
(a) the date specified in the notice as the date on which the change is to
take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
following five Business Days after notice of any change has been
given.
18.4 In proving such service it shall be sufficient to prove that the
envelope containing such notice was properly addressed and delivered either
to the address shown thereon or into the custody of the postal authorities
as a pre-paid recorded delivery, special delivery or registered post
letter, or that the notice was transmitted by fax to the fax number of the
relevant party set out in this clause 18 (or as otherwise notified under
it).
19. WAIVERS
No failure or delay by any party in exercising any right or remedy provided
by law under or pursuant to this Agreement shall impair such right or
remedy or operate or be construed as a waiver or variation of it or
preclude its exercise at any subsequent time and no single or partial
exercise of any such right or remedy shall preclude any other or further
exercise of it or the exercise of any other right or remedy.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which is an original but
all of which together constitute one and the same instrument.
21. FURTHER ASSURANCE
Each of the parties agrees with all due diligence to perform (or procure
the performance of) all further acts and things, and execute and deliver
(or procure the execution and delivery of) such further documents, as may
be required by law (or, in the case of the Vendor, as Telewest UK may
reasonably require), whether on or after Completion, to implement and/or
give effect to this Agreement and the transactions contemplated by it and
for the purpose of vesting in Telewest UK (or TCN or Telewest Limited) the
full benefit of the assets, rights and benefits to be transferred to
Telewest UK (or at Telewest UK's direction) under this Agreement.
22. SEVERABILITY
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, then such provision shall (so far as it is invalid, illegal
or unenforceable) be given no effect and shall be deemed not to be included
in this Agreement but without invalidating any of the remaining provisions
of this Agreement. The parties shall then use all reasonable endeavours to
replace the invalid, illegal or unenforceable provision by a valid, legal
and enforceable substitute provision the effect of which is as close as
possible to the intended effect of the invalid, illegal or unenforceable
provision.
23. ASSIGNMENT
23.1 The Vendor shall not be entitled to assign the benefit of this
Agreement in whole or in part.
23.2 Subject to clause 23.3, each of New Telewest and Telewest UK shall be
entitled to assign the benefit of this Agreement in whole or in part with
the prior written consent of Telewest UK or, as applicable, New Telewest.
For the avoidance of doubt, the Vendor's consent shall not be required to
any such assignment.
23.3 For the term of the Senior Secured Credit Facility Agreement and the
Proposed Amended Senior Secured Credit Facility Agreement, any assignment
under clause 23.2 shall be subject to the prior written consent of the
Agent (acting upon the instructions of the Majority Lenders).
24. RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
24.1 Subject to the other terms and conditions of this Agreement:
(a) the Vendor Liquidators (once appointed) shall have the right under the
Contracts (Rights of Third Parties) Act 1999 (CRTPA) to enforce
clauses 8, 9 and 25 of this Agreement;
(b) Telewest Jersey and the Telewest Jersey Liquidators (once appointed)
shall have the right under the CRTPA to enforce clauses 8, 10 and 25
of this Agreement;
(c) TCN shall have the right under the CRTPA to enforce clauses 5, 6 and
25 of this Agreement;
(d) Telewest Limited shall have the right under the CRTPA to enforce
clauses 5 and 25 of this Agreement; and
(e) the Agent (acting upon the instructions of the Majority Lenders) shall
have the right under the CRTPA to enforce clauses 8.5, 9.6, 10.6, 23.3
and 25 of this Agreement.
24.2 Save as provided in clause 24.1, a person who is not a party to this
Agreement shall have no right under the CRTPA to enforce any of its terms.
25. VARIATION
25.1 Subject to clause 25.2 below, no variation of this Agreement (or of
any of the documents referred to in this Agreement) shall be valid unless
it is in writing and signed by or on behalf of each of the direct parties
to this Agreement. The expression "variation" shall include any variation,
supplement, deletion or replacement however effected.
25.2 The parties to this Agreement shall not in any circumstances terminate
or rescind or vary this Agreement in any way such as to:
(a) extinguish the Vendor Liquidators' right to enforce clauses 8 and 9
and this clause 25 of this Agreement under section 1 of the CRTPA or
alter the Vendor Liquidators' entitlement under that right without the
Vendor Liquidators' prior written consent;
(b) extinguish the right of Telewest Jersey or the Telewest Jersey
Liquidators to enforce clauses 8 and 10 and this clause 25 of this
Agreement under section 1 of the CRTPA or alter their entitlement
under that right without the prior written consent of Telewest Jersey
or the Telewest Jersey Liquidators;
(c) extinguish the right of TCN to enforce clauses 5 and 6 and this clause
25 of this Agreement under section 1 of the CRTPA or alter TCN's
entitlement under that right without the prior written consent of TCN;
(d) extinguish the right of Telewest Limited to enforce clause 5 and this
clause 25 of this Agreement under section 1 of the CRTPA or alter
Telewest Limited's entitlement under that right without the prior
written consent of Telewest Limited; or
(e) for the term of the Senior Secured Credit Facility Agreement and the
Proposed Amended Senior Secured Credit Facility Agreement, extinguish
the right of the Agent to enforce clauses 8.5, 9.6, 10.6, 23.3 and
this clause 25 of this Agreement under section 1 of the CRTPA or alter
its entitlement under that right without the prior written consent of
the Agent (acting upon the instructions of the Majority Lenders).
25.3 This Agreement shall not terminate by reason only of the dissolution
or liquidation of the Vendor or Telewest Jersey.
26. JURISDICTION
26.1 All the parties to this Agreement agree that the courts of England are
(subject to clause 26.2 below) to have exclusive jurisdiction to settle any
dispute (including claims for set-off and counterclaims) which may arise in
connection with the validity, effect, interpretation or performance of, or
the legal relationships established by, this Agreement or otherwise arising
in connection with this Agreement.
26.2 Notwithstanding clause 26.1 above, the parties to this Agreement agree
that the Liquidators shall retain the right to bring proceedings in any
other court which has jurisdiction by virtue of the Convention on
Jurisdiction and the Enforcement of Judgments signed on 27 September 1968
(as from time to time amended and extended).
26.3 New Telewest irrevocably waives any objections on the grounds of venue
or forum non conveniens to the jurisdiction of the courts of England or of
any other court in which proceedings are brought by the Liquidators under
clause 26.2.
26.4 New Telewest shall at all times maintain an agent for service of
process and any other documents in proceedings in England or any other
proceedings in connection with this Agreement. Such agent shall be Law
Debenture Corporate Services Limited currently of Fifth Floor, 100 Wood
Street, London EC2V 7EX and any claim form, judgment or other notice shall
be sufficiently served on New Telewest if delivered to such agent at its
address for the time being. New Telewest irrevocably undertakes not to
revoke the authority of the above agent and if, for any reason, the Vendor
requests New Telewest to do so it shall promptly appoint another such agent
with an address in England and advise the Vendor. If, following such a
request, New Telewest fails within ten Business Days to appoint another
agent, the Vendor shall be entitled to appoint one on behalf of New
Telewest at the expense of New Telewest.
27. GOVERNING LAW
This Agreement and the relationship between the parties shall be governed
by, and interpreted in accordance with, English law.
SCHEDULE 1
DEFINITIONS
ACT means the Companies Act 1985, as amended;
AGENT has the meaning given to it in the Proposed Amended Senior Secured
Credit Facility Agreement;
BANK means Barclays Bank plc, Queen Square, Bristol BS1 2DY;
BENEFICIARIES means (a) the Beneficiaries as such term is defined in the
Intercreditor Deed and (b) from the Completion Date the New Beneficiaries
as such term is defined in the Intercreditor Deed as amended on or about
that date;
BUSINESS means any and all businesses and activities of the Vendor as at
the Completion Date, subject to the interests of and encumbrances created
in favour of the Beneficiaries under the Security Documents, including,
without limitation, operating as a holding company and the Business Assets
(but excluding the Excluded Assets);
BUSINESS ASSETS means all the present and future rights, undertaking and
assets of the Vendor (other than the Excluded Assets), subject to the
interests of and the encumbrances created in favour of the Beneficiaries
under the Security Documents, relating, or attributable, to the Business
including, without limitation, the following:
(a) the shares of the Vendor in the Subsidiaries (together with all rights
attaching to them, including any dividend or other distribution
declared or paid on or after the date of this Agreement);
(b) the benefit (subject to the burden) of all Contracts which remain
outstanding in whole or in part at the Completion Date;
(c) (subject to the provisions of Part C of Schedule 3) the Leasehold
Property;
(d) the benefit of all Claims subsisting at the Completion Date or arising
at any time thereafter;
(e) the Debtors;
(f) cash held at the Completion Date or at any time thereafter (other than
cash which constitutes an Excluded Asset as set out at paragraph 3 of
Schedule 4); and
(g) the TCN Receivable;
BUSINESS DAY means a day (excluding Saturdays) on which banks generally are
open in London for the transaction of normal banking business;
BUSINESS IPR means all existing Intellectual Property Rights which are
owned by the Vendor but excluding the Trade Marks and Domain Names;
CLAIMS means the benefit of all rights and claims of the Vendor arising at
any time out of, or in connection with, the Business (other than the
Excluded Claims);
COMMITMENT LETTER means the commitment letter dated 28 April 2004 between
the Vendor, TCN, New Telewest, Telewest UK and the Senior Lenders in
respect of the Proposed Amended Senior Secured Credit Facility Agreement;
COMPLETION means completion of the sale and purchase hereunder in
accordance with clauses 4.1 to 4.3;
COMPLETION DATE means the close of business on the date on which Completion
takes place which date shall be prior to the Recapitalisation Supplemental
Deed Effective Date;
CONDITIONS PRECEDENT means the conditions specified in clause 3.1;
CONSENTS has the meaning given to it in clause 5.2;
CONTRACTS means all contracts, engagements, licences, guarantees and other
commitments (including, for the avoidance of doubt, in respect of any
Intellectual Property Rights) including any intra-group debt commitments
which have been entered into or undertaken by or on behalf of the Vendor
(other than the Excluded Contracts);
CREDITOR BENEFICIARIES means (a) creditors of the Vendor and/or Telewest
Jersey in respect of claims relating to the Vendor Shareholder and
Bondholder Reorganisation Expenses and (b) the professional advisers and
other persons listed in Schedule 6 (and CREDITOR BENEFICIARY means each one
of them);
CRTPA has the meaning given to it in clause 24.1;
DEBTORS means amounts due to the Vendor at the Completion Date including in
respect of trade debtors, amounts recoverable on contracts, payments in
advance, trade bills receivable, prepayments and accrued income (other than
Excluded Debtors);
DESIGNATED ACCOUNT means the account holding the Expenses Fund;
DOMAIN NAMES means the internet domain names set out in Part B of Schedule
5;
EFFECTIVE DATE means the date on which the Vendor delivers an office copy
of the Order to the Registrar of Companies for registration;
EMPLOYEE SHARE SCHEMES means the Telewest 1995 (No. 1) Executive Share
Option Scheme, the Telewest 1995 (No. 2) Executive Share Option Scheme, the
Telewest 1995 Sharesave Scheme, the Telewest Long Term Incentive Plan, the
Telewest Equity Participation Plan, the Telewest 1995 Restricted Share
Scheme, the 1992 Flextech Employee Share Option Scheme, the 1992 Flextech
Unapproved Share Option Scheme, the 1995 Flextech Approved Share Option
Scheme, the 1995 Flextech Unapproved Share Option Scheme and the Flextech
Sharesave Scheme;
ESCROW AGENT means The Bank of New York as appointed by the Vendor and
Telewest Jersey pursuant to the Escrow Agent Agreement;
ESCROW AGENT AGREEMENT means the escrow agent agreement to be entered into
between the Vendor, Telewest Jersey, Telewest UK, New Telewest and the
Escrow Agent prior to the Effective Date;
EXCLUDED ASSETS means the assets excluded from the sale and purchase
pursuant to this Agreement, being those more specifically detailed in
Schedule 4;
EXCLUDED CLAIMS means:
(a) the benefit of the rights and claims of the Vendor arising under this
Agreement;
(b) any personal claim which may be brought by a liquidator or
administrator under the Insolvency Legislation; and
(c) claims relating to taxation;
EXCLUDED CONTRACTS means:
(a) the lease pursuant to which the Vendor holds the Leasehold Property;
(b) the Guarantees;
(c) the letter of appointment of Anthony Stenham to the board of directors
of the Vendor dated 1 December 1999, as amended by a letter dated 19
September 2000;
(d) the letter of appointment of Denise Kingsmill to the board of
directors of the Vendor dated 22 June 2001;
(e) the Contracts in respect of which novation agreements with, inter
alios, Telewest UK, TCN or Telewest Limited (as the case may be) have
already been entered into on or before the Completion Date including,
without limitation, the Contracts listed in Part A of Schedule 8 to
the extent the novations pursuant to such novation agreements become
effective on or before the Effective Date;
(f) the Employee Share Schemes; and
(g) this Agreement;
EXCLUDED DEBTORS means:
(a) any debtors relating to taxation claims;
(b) the Excluded TCN Receivable; and
(c) any amounts due under the Contracts in respect of which novation
agreements with, inter alios, Telewest UK, TCN or Telewest Limited (as
the case may be) have already been entered into on or before the
Completion Date including, without limitation, the Contracts listed in
Part A of Schedule 8 to the extent the novations pursuant to such
novation agreements become effective on or before the Effective Date;
EXCLUDED LIABILITIES means the Liabilities listed in Schedule 9;
EXCLUDED TCN RECEIVABLE means an amount of(pound)2,972,860,000 owed by TCN
to the Vendor;
EXPENSES FUND means the fund to be retained by the Vendor (as trustee) at
Completion in accordance with clause 8 of this Agreement with the Bank;
EXPLANATORY STATEMENT means the explanatory statement of the Vendor and
Telewest Jersey required to be furnished to Scheme Creditors pursuant to
section 426 of the Act and article 126 of the Jersey Act;
FINANCIAL RESTRUCTURING has the meaning given to it in Recital (A);
GOODWILL means the goodwill of the Vendor in relation to the Vendor's
business (including in relation to the Trade Marks and the goods and
services in respect of which the Trade Marks are registered) together with
the exclusive right for TCN to represent itself as carrying on the Vendor's
business in succession to the Vendor;
GUARANTEES means the guarantees listed in Part B of Schedule 3;
ICTA means the Income and Corporation Taxes Act 1988;
INDEMNIFIED LIABILITIES means any actions, proceedings, claims, demands,
costs, damages, losses, expenses, taxes, duties, writs, interest fines,
penalties and all other debts, obligations (including indemnity
obligations) and liabilities (both ascertained and contingent) of the
Vendor or, as the context requires, Telewest Jersey at the Completion Date
or at any time thereafter (other than the Excluded Liabilities (with the
exception of Liabilities in respect of the Employee Share Schemes set out
at paragraph 5 of Schedule 9));
INSOLVENCY LEGISLATION means the Insolvency Act 1986, the Insolvency Rules
1986, the Enterprise Act 2002 and the Jersey Act, each as amended from time
to time, together with all primary and secondary legislation, and case law,
relating to the same;
INTELLECTUAL PROPERTY RIGHTS means patents, trade marks, service marks,
trade names, internet domain names, rights in designs, copyright (including
rights in computer software and databases) and moral rights, rights in
know-how and other intellectual property rights, in each case whether
registered or unregistered and including applications for the grant of any
such rights and all rights or forms of protection having equivalent or
similar effect anywhere in the world;
INTERCREDITOR DEED (a) prior to the Completion Date has the meaning given
to it in the Senior Secured Credit Facility Agreement and (b) from the
Completion Date has the meaning given to it in the Proposed Amended Senior
Secured Credit Facility Agreement;
INTRA-GROUP LOANS means the loans listed in Schedule 10;
JERSEY ACT means the Companies (Jersey) Law 1991, as amended;
JERSEY SCHEME has the meaning given to it in Recital (A);
LEASEHOLD PROPERTY means the premises listed in Part A of Schedule 3;
LIABILITIES means any actions, proceedings, claims, demands, costs,
damages, losses, expenses, taxes, duties, writs, interest fines, penalties
and all other debts, obligations (including indemnity obligations) and
liabilities (both ascertained and contingent) of the Vendor at the
Completion Date or at any time thereafter (other than the Excluded
Liabilities) and including, for the avoidance of doubt, the Intra-group
Loans;
LIQUIDATORS means the Vendor Liquidators and/or the Telewest Jersey
Liquidators, as applicable;
MAJORITY LENDERS has the meaning given to it in the Proposed Amended Senior
Secured Credit Facility Agreement;
MEMBER OF THE NEW TELEWEST GROUP means any company of which New Telewest
is, following the Effective Date, the parent company (within the meaning of
section 258(1) of the Act);
ORDER means the order of the High Court of Justice of England and Wales
which sanctions the Scheme;
PROPOSED AMENDED SENIOR SECURED CREDIT FACILITY AGREEMENT means the Senior
Secured Credit Facility Agreement to be amended and restated pursuant to a
supplemental deed to be dated on or around the Completion Date (as from
time to time further amended, varied, extended, restated, replaced,
refinanced or supplemented (including by any increase in any amounts
outstanding thereunder or any change to the parties thereto));
RECAPITALISATION SUPPLEMENTAL DEED EFFECTIVE DATE has the meaning given to
it in the Proposed Amended Senior Secured Credit Facility Agreement;
REGISTRAR OF COMPANIES means the registrar of companies within the meaning
of the Act;
SALE OF GOODS ACT means the Sale of Goods Act 1979 (as amended by the Sale
and Supply of Goods Act 1994);
SCHEME has the meaning given to it in Recital (A);
SCHEME CLAIM has the meaning given to it in the Explanatory Statement;
SCHEME CREDITOR has the meaning given to it in the Explanatory Statement;
SECURITY DOCUMENTS means (a) the Security Documents as such term is defined
in the Senior Secured Credit Facility Agreement; and (b) from the
Completion Date the Security Documents as such term is defined in the
Proposed Amended Senior Secured Credit Facility Agreement;
SECURITY TRUSTEE has the meaning given to it in the Senior Secured Credit
Facility Agreement;
SENIOR LENDERS means the lenders under the Senior Secured Credit Facility
Agreement;
SENIOR SECURED CREDIT FACILITY AGREEMENT means the agreement dated 16 March
2001 for credit facilities of (pound)2 billion together with an
institutional facility of up to (pound)250 million made between, inter
alios, TCN and the Senior Lenders;
SUBSIDIARIES means the companies listed in Schedule 2;
TCGA means the Taxation of Chargeable Gains Act 1992;
TCH means Telewest Communications Holdco Limited whose registered office is
at Export House, Cawsey Way, Woking, Surrey GU21 6QX;
TCN means Telewest Communications Networks Limited whose registered office
is at Export House, Cawsey Way, Woking, Surrey GU21 6QX;
TCN RECEIVABLE means the amounts owed by TCN to the Vendor immediately
prior to Completion (other than the Excluded TCN Receivable);
TELEWEST JERSEY means Telewest Finance (Jersey) Limited whose registered
office is at Whiteley Chambers, Don Street, St. Helier, Jersey JE4 9WG,
Channel Islands;
TELEWEST JERSEY LIQUIDATORS means the liquidators appointed to Telewest
Jersey from time to time;
TELEWEST LIMITED means Telewest Limited whose registered office is at
Export House, Cawsey Way, Woking, Surrey GU21 6QX;
TRADE MARKS means the trade mark registrations and applications for
registration listed in Part A of Schedule 5;
TRANSACTION means (i) the transfer of substantially all of the assets of
the Vendor pursuant to this Agreement; (ii) the issue by New Telewest of
shares of New Telewest common stock to the Escrow Agent pursuant to and in
accordance with clause 4.4 of this Agreement; and (iii) the compromise and
release of the Scheme Claims in consideration for the distribution of
shares of New Telewest common stock to shareholders of the Vendor and
Scheme Creditors pursuant to the Scheme and the Jersey Scheme; and (iv) the
solvent liquidation of the Vendor and the liquidation of Telewest Jersey;
UK or UNITED KINGDOM means the United Kingdom of Great Britain and Northern
Ireland;
US means the United States of America, its territories and possessions, any
State of the United States of America and the District of Columbia;
VAT means value added tax as provided for in the Value Added Tax Act 1994
or any similar tax replacing or introduced in addition to the same;
VENDOR LIQUIDATORS means the liquidators appointed to the Vendor from time
to time; and
VENDOR SHAREHOLDER AND BONDHOLDER REORGANISATION EXPENSES means any
expenses of the Vendor's shareholders or the Scheme Creditors incurred in
connection with and arising solely as a result of the Transaction and for
which the Vendor or Telewest Jersey (as the case may be) is liable.
SCHEDULE 2
SUBSIDIARIES
SCHEDULE 3
PART A DETAILS OF LEASEHOLD PROPERTY
SCHEDULE 3
PART B DETAILS OF GUARANTEES
SCHEDULE 3
PART C ASSIGNMENT OF LEASEHOLD PROPERTY AND SUBSTITUTION OF
TCN OR TELEWEST LIMITED FOR THE VENDOR IN RELATION TO THE
GUARANTEES
1. DEFINITIONS AND INTERPRETATION
1.1 In this Schedule, unless the context otherwise requires, the following
expressions shall have the following meanings:
AGREEMENT means the Agreement of which this Schedule is a part;
ACTUAL COMPLETION DATE means (a) in relation to the Property, the date upon
which completion of the transfer of the Property actually takes place (and,
for the avoidance of doubt, is not the date the transfer is registered at
H.M. Land Registry or stamped) and (b) in relation to each Guarantee, the
date upon which the Purchaser enters into an agreement with the Landlord
effecting a substitution of itself for the Vendor in relation to that
Guarantee;
CONDITION means the condition set out in paragraph 2.4 of this Schedule;
CONSENT means any consent, waiver or deed of variation that is required
from the Landlord to transfer the Lease to the Purchaser;
COURT PROCEEDINGS means proceedings issued by the Vendor in a court of
competent jurisdiction for a declaration that a Consent has been
unreasonably withheld or delayed in breach of the terms (express or
implied) of the Lease;
GUARANTEE means each guarantee given by the Vendor short particulars of
which are set out in Part B of this Schedule and includes any other
documents connected therewith completed after the date hereof but prior to
the Actual Completion Date and GUARANTEES shall be construed accordingly;
LANDLORD means (a) in relation to the Property, the person who is
lessor/landlord under the Lease and is entitled to the freehold or
leasehold reversion immediately expectant upon the term granted by the
Lease and the successors in title and assigns of such person and includes
the person or persons entitled to the freehold and any other interest in
reversion which is superior to the interest of the lessor/landlord under
that Lease; and (b) in relation to each Guarantee, the person entitled to
the benefit of that Guarantee (as the context requires);
LEASE means, in relation to the Property, the lease short particulars of
which are set out in Part A of this Schedule under which the Vendor holds
the Property and includes any other documents connected therewith completed
after the date hereof but prior to the Actual Completion Date;
LOSSES means all losses, liabilities, damages, settlements, costs, fees and
expenses whatsoever calculated on an after tax basis;
PERMITTED ENCUMBRANCE means any mortgage, standard security, charge
(whether legal or equitable), assignation in security, pledge, lien,
hypothecation or encumbrance securing any obligation of any person in
relation to the Property;
PROPERTY means the Property held by the Vendor with a leasehold tenure
short details of which are set out in Part A of this Schedule including
(without limitation) each, every and any part thereof;
PURCHASE PRICE means, in respect of the Property the amount allocated to
such Property in accordance with clause 2.3 of this Agreement;
PURCHASER means Telewest Communications Networks Limited or Telewest
Limited (as applicable);
PURCHASER'S SOLICITORS shall mean Freshfields Bruckhaus Deringer of 65
Fleet Street, London EC4Y 1HS;
RELEASE means any and all consents and releases required from a Landlord in
respect of a Guarantee in order to effect a Substitution in relation to
such Guarantee and RELEASES shall be construed accordingly;
SUBSTITUTION means the release of the Vendor by a Landlord under a
Guarantee and the substitution of the Purchaser for the Vendor in relation
to such Guarantee and SUBSTITUTIONS shall be construed accordingly;
VENDOR'S SOLICITORS shall mean Freshfields Bruckhaus Deringer of 65 Fleet
Street, London EC4Y 1HS; and
VENDOR LIQUIDATORS has the meaning given to it in the Agreement of which
this Schedule is a part.
1.2 The paragraph headings in this Schedule shall not affect its
interpretation.
1.3 Unless the context otherwise requires:
(a) references in this Schedule to clauses shall be construed as
references to clauses of the Agreement of which this Schedule is a
part; and references to paragraphs shall be construed as references to
paragraphs of this Schedule;
(b) capitalised terms in this Schedule shall, save where otherwise defined
herein, have the meanings given to them in the Agreement; and
(c) references to TRANSFER shall be construed so as to include assigning
or assignment.
2. SALE AGREEMENT
2.1 The Vendor shall sell the Property and the Purchaser shall purchase the
same with no title guarantee and (save as provided for elsewhere in this
Agreement) with vacant possession.
2.2 The Vendor sells the Property subject always to the other provisions of
this Schedule and of this Agreement (and the transfer referred to in
paragraph 6 shall be construed accordingly).
2.3 The sale price for the Property shall be the Purchase Price.
2.4 Completion of the transfer of the Property is conditional upon the
grant of the Consent required in respect of the Property.
2.5 If, in relation to the Property:
(a) the Vendor and Purchaser agree in writing (making express reference to
this paragraph) that the Landlord has unreasonably withheld and/or
delayed a Consent; or
(b) a declaration in the Vendor's favour is obtained from the relevant
court pursuant to Court Proceedings and the period of five (5) weeks
has passed since the perfection of the order for such declaration
without any appeal against such declaration having been lodged by the
Landlord (the RELEVANT DATE),
then, for the purposes of this Schedule, the Consent shall be deemed to
have been granted on the date any such agreement is reached or on the
Relevant Date (as the case may be) and, with effect from such date, the
Condition shall be deemed to be satisfied and the Vendor's obligations
under paragraph 7 shall cease in relation to the Lease.
3. COMPLETION
3.1 The transfer of the Property shall be completed at the time and in the
manner set out in paragraph 6.3 and the Purchase Price shall be paid on the
Completion Date even if a Consent has not been obtained or the Condition
has not then actually been satisfied or deemed to have been satisfied
pursuant to paragraph 2.5.
4. TITLE
4.1 If the Property held by the Vendor has a registered title, title shall
be deduced in accordance with Section 110 of the Land Registration Act 1925
and shall comprise copy entries of the registers relating to such titles
and copies of the filed plans and copies of the Vendor's Lease (where
applicable).
4.2 If the Property held by the Vendor has an unregistered title, title
commences with the root of title for the Property.
4.3 Title to the Property having been deduced to the Purchaser or the
Purchaser's Solicitors prior to the date hereof (as the Purchaser hereby
admits), the Purchaser shall be deemed to have accepted such title and
shall not raise any enquiries or requisitions thereon nor make any
objections in respect thereof after the date hereof except where the
subject matter of the enquiry or requisition is registered at H. M. Land
Registry or the Central Land Charges Register on or after the date of this
Agreement.
4.4 Without prejudice to the generality of paragraph 4.3, the Purchaser
shall not raise any requisition or objection in respect of the fact that:
(a) the transfer to the Vendor of the Property may not at the Actual
Completion Date yet have been stamped; or
(b) the Vendor may not at the Actual Completion Date be registered as
proprietor of the Property in respect of which the transfer to the
Vendor has not yet been registered or is in the course of registration
(whether or not first registration),
subject in either case to the Vendor having provided the Purchaser with
copies (certified where possible) of such transfer (which the Vendor shall
be obliged to stamp) and of the application for registration.
5. MATTERS AFFECTING THE PROPERTY
5.1 The Property is sold subject to the following matters so far as they
relate to the Property and are still subsisting and capable of taking
effect at the Actual Completion Date:
(a) any matters contained or referred to in the Property Register or the
Charges Register of the registered title to the Property kept at HM
Land Registry (as the case may be);
(b) the rent reserved by and the covenants on the part of the
lessee/tenant and the conditions contained in and the other provisions
of the Lease;
(c) all rights of way, light and air, support, drainage and other rights,
easements, quasi-easements, liabilities and public or private rights
whatsoever and to any liability to repair or contribute to the repair
of sewers, drains, pipes, party structures and other like matters;
(d) all matters in the nature of overriding interests as set out in
Section 70(1) of the Land Registration Act 1925 (as amended);
(e) all Local Land Charges (whether or not registered before the date of
this Agreement) and all matters capable of registration as Local Land
Charges (whether or not actually registered);
(f) all notices served and orders, demands, proposals, or requirements
made by any local or other public or competent authority;
(g) all actual or proposed orders, directions, plans, notices,
instruments, charges, restrictions, conditions, agreements or other
matters arising under any statute relating to town and country
planning and any laws and regulations intended to control or regulate
the construction, demolition, alteration or change of use of land or
buildings or to preserve or protect the environment; and
(h) Permitted Encumbrances.
5.2 The Purchaser shall be deemed to purchase or accept a transfer with
full knowledge and notice of the matters aforesaid and shall not raise any
objection or requisition whatsoever in respect of the same.
6. FORM OF TRANSFER
6.1 The transfer to the Purchaser of the Property shall be in a form agreed
between the Purchaser and the Vendor.
6.2 The transfer of the Property shall also contain declarations that:
(a) notwithstanding the covenant by the Vendor implied under Section 3(1)
of the Law of Property (Miscellaneous Provisions) Act 1994 (the 1994
ACT) the transfer is subject to all matters to which it is expressed
to be subject pursuant to the terms of this Agreement;
(b) the covenants by the Vendor under Section 4(1)(b) of the 1994 Act are
not implied;
(c) no covenants by the Vendor shall be implied by Sections 2, 3 and 4 of
the 1994 Act; and
(d) a person who is not a party to the transfer shall have no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce its terms.
6.3 The Purchaser shall prepare and execute a transfer of the Property in
duplicate and shall deliver the executed transfer and any other documents
to be entered into between the Vendor and Purchaser (with or without other
parties) to the Vendor's Solicitors no later than five (5) Business Days
after the date on which the Condition is satisfied or deemed to have been
satisfied pursuant to paragraph 2.5 and the Vendor shall execute and return
the transfer to the Purchaser within five (5) Business Days of receiving
the same and the Purchaser shall within thirty (30) Business Days of
receipt of the transfer arrange for a duplicate of it to be stamped and
denoted at the Purchaser's expense and returned to the Vendor's Solicitors.
7. OBTAINING THE CONSENT
7.1 The Vendor shall keep the Purchaser informed of the progress of the
application for Consent.
7.2 The Vendor shall use its reasonable endeavours (including, without
limitation, taking Court Proceedings at the cost and request of the
Purchaser except where either the Vendor or the Purchaser is able to
provide the opinion of a leading counsel specialising in landlord and
tenant law that such Court Proceedings would, on balance, be unsuccessful)
and the Purchaser will assist the Vendor to obtain the Consent.
7.3 The Purchaser shall promptly and expeditiously satisfy the requirements
of the Landlord and shall take all steps to assist the Vendor in obtaining
the Consent (including, without limitation, assistance in connection with
any Court Proceedings or appeal in respect of them) and without prejudice
to the generality of the foregoing shall:
(a) provide to the Vendor all information, references and documents as
shall be requested by the Landlord to support any application for a
Consent made by the Vendor in accordance with this Schedule or which
may otherwise be agreed by the parties;
(b) in any licence to assign or guarantee, enter into direct covenants
with the Landlord to observe and perform the tenant's covenants and
obligations contained in the Lease until released under the Landlord
and Tenant (Covenants) Act 1995; and
(c) if lawfully required, provide such guarantee, surety or other security
for the obligations of the Purchaser (as tenant) under the Lease as is
acceptable to the Landlord,
to the intent that the Purchaser will take all steps and do all acts and
make all payments which it is necessary to be done and which it is capable
of doing or to be paid to meet the requirements of the Landlord as
aforesaid so as to ensure that the Consent is obtained.
7.4 Any applications made by the Vendor to the Landlord or its solicitors
or agents in relation to the obtaining of the Consent shall be in a form
approved by the Purchaser, such approval not to be unreasonably withheld or
delayed.
7.5 Subject to paragraph 12 below, the costs incurred by or awarded against
the Vendor in obtaining the Consent and in pursuing Court Proceedings and
any appeal in respect of them (whether by the Vendor or the Landlord) shall
be allocated as follows:
(a) the Purchaser shall bear its own and the Vendor's legal costs in
applying for and obtaining the Consent;
(b) the Purchaser shall be responsible for the legal and other costs
payable to the Landlord under the Lease; and
(c) the cost of any Court Proceedings shall be paid by the Purchaser.
7.6 If the Condition has not been satisfied or deemed satisfied in respect
of the Property within twelve (12) months of the date of this Agreement
then (provided that it has complied with its obligations contained in this
Agreement so far as they relate to the Lease) either the Vendor or
Purchaser shall be entitled by giving written notice to the other at any
time thereafter (but only before the Condition has been satisfied or deemed
satisfied) to elect to withdraw the Property from this Agreement and upon
service of such notice the provisions of this Agreement so far as they
relate to the Property shall determine but without prejudice to:
(a) the liability of either party for any subsisting breach of that
party's obligations under this Agreement in relation to the Property;
and
(b) the parties' obligations under paragraph 7.7.
7.7 Upon service of a notice pursuant to paragraph 7.6:
(a) the Vendor and Purchaser shall be released from any obligation to
complete the transfer of the Property to the Purchaser;
(b) the Vendor shall use all reasonable endeavours to:
(i) transfer the Property to a third party purchaser (including
obtaining any consent, waiver or deed of variation that is
required from the relevant Landlord); or
(ii) otherwise dispose of its entire interest in the Property; and
(c) in the event of the Vendor transferring the Property to a third party
purchaser or otherwise disposing of its interest in the Property under
paragraph 7.7(b) above, the Purchaser shall:
(i) be entitled to receive the proceeds (if any) of such transfer or
disposal;
(ii) be entitled to receive all rent and other sums (whether past
present or future) due to the Vendor from the tenant and any
other party under the Lease of the Property;
(iii)assume all past, present and future liability on the part of the
Vendor under the Lease; and
(iv) be entitled to exercise any rights and enjoy any benefits that
the Vendor may have under the Lease,
and the parties shall act reasonably in making such arrangements but, in
the event of a dispute between the parties as to the operation of this
paragraph 7.7, the dispute shall be referred to a partner in a major legal
practice with commercial experience who shall be appointed by agreement
between the Vendor and the Purchaser or (in the absence of agreement) by
the president of the Law Society on the application of either party, and
shall act as an expert.
8. OCCUPATION BY THE PURCHASER
8.1 If, in relation to the Property, the Condition has not been satisfied
or deemed satisfied in accordance with paragraph 2.5 by Completion, the
Purchaser shall, with effect from Completion, be entitled to receive the
income from the Property and to occupy the Property as licensee upon the
terms and conditions contained in the Lease. Such licence shall be
revocable by the Vendor if forfeiture by the Landlord on account of the
Purchaser's occupation itself constituting a breach of covenant or
condition in the Lease or the breach of an order of the Court cannot be
avoided other than by requiring the Purchaser to vacate the Property. In
the event of such revocation by the Vendor, the terms of paragraphs 7.6 and
7.7 shall apply as if the period of twelve (12) months had expired.
8.2 Whether or not the Purchaser shall take occupation of the Property as
licensee pursuant to paragraph 8.1, the Purchaser shall, with effect from
Completion, pay all rents, service charges, insurance premiums and other
sums payable by the tenant under the Lease and shall observe the tenant's
covenants and conditions contained therein and the covenants, conditions
and obligations binding the Vendor contained in any relevant documents
relating to the Property and (if registered) the registers of the relevant
title(s) in each case from Completion and shall, subject to paragraph 12
below, keep the Vendor indemnified from and against all Losses arising on
account of any breach non-observance or non-performance thereof whether
before, on or after the date hereof.
8.3 The Vendor shall promptly supply to the Purchaser copies of all
invoices, demands, notices, accounts and other communications received by
the Vendor or its agents in connection with any of the matters for which
the Purchaser may be liable to make any payment or perform any obligation
pursuant to paragraph 8.2, and shall at the Purchaser's cost take any steps
and/or pass on any representations which the Purchaser may reasonably
require to be made in connection with any such matters.
8.4 Subject to paragraph 12 below, the Purchaser shall indemnify and keep
the Vendor indemnified from and against all Losses arising on account of
any breach of the provisions of this Schedule by the Purchaser.
8.5 In paragraphs 8.6 and 8.8, LEASE means the Lease.
8.6 The Vendor will not:
(a) effect or accept any variation or surrender or other termination of
the Lease; nor
(b) serve any notices upon the Landlord or tenant thereunder; nor
(c) agree or take any steps in relation to any rent review,
without the prior written consent of the Purchaser (such consent not to be
unreasonably withheld or delayed) and the Vendor shall forthwith send a
copy to the Purchaser of any notice or other material communication
received in connection with the Lease. The Vendor shall, with all due
expedition, take such action as the Purchaser may reasonably require in
connection with any such rent review.
8.7 Subject to paragraph 12 below, the proper costs and expenses incurred
by the Vendor and Purchaser in connection with any such review of rent
shall be borne by the Purchaser (irrespective of whether the rent review
falls before or after Completion).
8.8 The Vendor and Purchaser will co-operate in any reasonable arrangements
proposed by either of them designed to provide for the Purchaser the
benefits of the Lease with effect from Completion, including (without
limitation):
(a) enforcement (at the cost and for the account of the Purchaser) of all
rights of the Vendor against any other party thereto; and
(b) taking or, as the case may be, joining in such action as the Purchaser
may reasonably request (in either case at the expense of the
Purchaser) to avoid, dispute, resist, appeal, compromise or defend any
claim for forfeiture and/or for damages and/or the exercise or
purported exercise of any rights or remedies resulting or arising from
the occupation of the Purchaser prior to receipt or deemed receipt of
the Consent.
9. RESTRICTION ON SUB SALE
The Vendor shall not be required to transfer the Property for a greater
consideration than the Purchase Price.
10. SUBSTITUTION
10.1 The Vendor shall apply to the Landlords for the Releases and the
Vendor and Purchaser will take all steps and enter into all such
documentation as is necessary to achieve the Substitutions and obtain the
Releases in respect of the Guarantees.
10.2 Completion of the Substitutions is conditional upon the grant of the
Releases required in respect of the Guarantees.
10.3 If, in relation to a Guarantee, the Vendor and Purchaser (after making
and progressing a proper application to the respective Landlord for a
Release) agree in writing (making express reference to this paragraph) that
such Landlord will not grant a Release then, with effect from such date,
the Vendor's and Purchaser's obligations under this paragraph 10 shall
cease in relation to such Release.
10.4 Save for the Releases which the Vendor has applied for as at the
Completion Date, the Vendor shall not later than five (5) Business Days
after the Completion Date apply to the Landlords for the Releases and keep
the Purchaser informed of the progress of each application.
10.5 The Vendor shall use its reasonable endeavours (including, without
limitation, taking Court Proceedings at the cost and request of the
Purchaser except where the Substitution is absolutely prohibited by the
lease to which the Guarantee relates or the Landlord under that lease to
which the Guarantee relates has an absolute right to refuse consent or
either the Vendor or Purchaser is able to provide the opinion of a leading
counsel specialising in landlord and tenant law that such Court Proceedings
would be, on balance, unsuccessful) and the Purchaser will assist the
Vendor to obtain the Releases.
10.6 The Purchaser shall promptly and expeditiously satisfy the
requirements of the Landlord and shall take all steps to assist the Vendor
in obtaining the Releases (including, without limitation, assistance in
connection with any Court Proceedings or appeal in respect of them) and
without prejudice to the generality of the foregoing shall:
(a) provide to the Vendor all information, references and documents as
shall be requested by any Landlord to support any application for a
Release made by the Vendor in accordance with this Schedule or which
may otherwise be agreed by the parties;
(b) in any necessary document, enter into direct covenants with the
relevant Landlord to observe and perform the guarantor's covenants and
obligations contained in the leases to which the Guarantees relate
throughout the residue of the term of the lease or, in the case of a
new lease under the Landlord and Tenant (Covenants) Act 1995, until
released; and
(c) if lawfully required, provide such further guarantee, surety or other
security for the obligations of the Purchaser (as Guarantor) under the
lease as is acceptable to the relevant Landlord,
to the intent that the Purchaser will take all steps and do all acts and
make all payments which it is necessary to be done and which it is capable
of doing or to be paid to meet the requirements of the Landlord as
aforesaid so as to ensure that the Releases are obtained.
10.7 Any applications made by the Vendor to the Landlords or their
solicitors or agents in relation to the obtaining of the Releases shall be
in a form approved by the Purchaser, such approval not to be unreasonably
withheld or delayed.
10.8 Subject to paragraph 12 below, the costs incurred by or awarded
against the Vendor in obtaining the Releases and in pursuing Court
Proceedings and any appeal in respect of them (whether by the Vendor or the
Landlord) shall be allocated as follows:
(a) the Purchaser shall bear its own and the Vendor's legal costs in
applying for and obtaining the Releases;
(b) the Purchaser shall be responsible for the legal and other costs
payable to the Landlords under the leases to which the Guarantees
relate; and
(c) the cost of any Court Proceedings shall be paid by the Purchaser.
10.9 If the Release has not been obtained in respect of any Guarantee
within twelve (12) months of the date of this Agreement then (provided that
it has complied with its obligations contained in this Agreement so far as
they relate to the Guarantee) either the Vendor or Purchaser shall be
entitled by giving written notice to the other at any time thereafter (but
only before the Release has been obtained) to elect to withdraw the
relevant Guarantee from this Agreement and upon service of such notice the
provisions of this Agreement so far as they relate to the relevant
Guarantee shall determine but without prejudice to:
(a) the liability of either party for any subsisting breach of that
party's obligations under this Agreement in relation to the relevant
Guarantee; and
(b) the parties' obligations under paragraph 10.3.
11. NON-MERGER
Notwithstanding completion of the sale and purchase as contemplated by this
Agreement, this Schedule shall remain in full force and effect so far as
anything contained herein remains to be implemented.
12. PAYMENT OF COSTS ETC.
For the avoidance of doubt, where pursuant to this Schedule the Purchaser
is obliged to pay or bear the Vendor's costs and expenses or to indemnify
the Vendor, the Purchaser shall make payment in respect of such costs and
expenses or indemnification directly to the Vendor Liquidators or to the
Landlord, agent, surveyor, legal adviser, creditor or other party, as
applicable.
SCHEDULE 4
EXCLUDED ASSETS
1. The Vendor's shareholdings in the following companies
COMPANY NUMBER OF SHARES
Telewest Jersey 2
New Telewest 1
2. Excluded TCN Receivable
3. any cash credited to the Designated Account in respect of the Expenses
Fund in accordance with clause 8 of this Agreement
4. Trade Marks
5. Domain Names
6. Goodwill
7. Business IPR
SCHEDULE 5
REGISTERED RIGHTS
PART A
SCHEDULE 5
PART B
DOMAINS REGISTERED TO
TELEWEST COMMUNICATIONS PLC
SCHEDULE 6
LIST OF ADVISERS
PROFESSIONAL ADVISERS AND/OR SERVICE PROVIDERS ENGAGED IN
CONNECTION WITH THE FINANCIAL RESTRUCTURING FOR WHOSE FEES THE
VENDOR IS LIABLE
SCHEDULE 7
APPORTIONMENT
SCHEDULE 8
CONTRACTS TO BE NOVATED
PART A
CONTRACTS IN RESPECT OF WHICH NOVATION AGREEMENTS HAVE BEEN
ENTERED INTO
PART B
CONTRACTS IN RESPECT OF WHICH NOVATION AGREEMENTS HAVE NOT BEEN
ENTERED INTO
SCHEDULE 9
EXCLUDED LIABILITIES
SCHEDULE 10
INTRA-GROUP LOANS
SCHEDULE 11
FORM OF NOVATION AGREEMENT
[ ] 2004
TELEWEST COMMUNICATIONS PLC
TELEWEST UK LIMITED
[Insert name of relevant counterparty]
=======================================================
DEED OF NOVATION
=======================================================
THIS DEED is made on 2004 between the following
parties:
(1) TELEWEST COMMUNICATIONS PLC a company incorporated in England and
Wales (company number 2983307) whose registered office is at Export
House, Cawsey Way, Woking, Surrey GU21 6QX (the TRANSFEROR);
(2) TELEWEST UK LIMITED a company incorporated in England and Wales
(company number 4925679) whose registered office is at Export House,
as above (the TRANSFEREE); and
(3) [Insert name of relevant counterparty] a company incorporated in
England and Wales ([insert company number]) whose registered office is
at Export House, as above (the LENDER).
WHEREAS
(A) Reference is made to a debt of [o] as between the Transferor and the
Lender (the OLD LOAN). The Old Loan is in respect of [insert description of
the loan].
(B) The Transferor intends to enter into a scheme of arrangement with its
creditors pursuant to section 425 of the Companies Act 1985 (the SCHEME)
and, in connection with the Scheme, to enter into an agreement to transfer
its business (the TRANSFER AGREEMENT). As part of the transfer of the
Transferor's business and with effect from and including the Completion
Date (as defined below), the Transferor wishes to transfer by novation to
the Transferee, and the Transferee wishes to accept the transfer by
novation of, all the rights, liabilities, duties and obligations of the
Transferor under the Old Loan.
(C) The Transferor, the Transferee and the Lender have agreed to the
novation of the Old Loan in order to terminate and replace the Old Loan
with a new agreement between the Lender and the Transferee on identical
terms, save that the Transferee shall be a party in place of the Transferor
(the NEW LOAN).
(D) The Transferor, Transferee and the Lender enter into this Deed to
record the termination of the Old Loan and its replacement with the New
Loan.
NOW THIS DEED WITNESSETH as follows:
1. DEFINITIONS
1.1 In this Deed COMPLETION DATE shall mean the date on which the Transfer
Agreement completes pursuant to clauses 4.1 to 4.3 of the Transfer
Agreement.
1.2 The headings referred to in this Deed are for reference purposes only
and shall not affect the meaning or construction of the clauses to which
they relate.
2. TRANSFER, RELEASE, DISCHARGE AND UNDERTAKINGS
With effect from and including the Completion Date:
2.1 the Old Loan including all accrued rights and liabilities under it
already in existence as at that date, shall be terminated and shall be
replaced by the New Loan, which shall be on identical terms to the Old Loan
save that the Transferee shall be a party in place of the Transferor;
2.2 the Transferee undertakes with the Lender to accept, observe, perform
and discharge all its liabilities and obligations arising under the New
Loan;
2.3 the Lender agrees to the substitution of the New Loan in place of the
Old Loan and that the Transferee may exercise and enjoy all of its rights
under the terms of the New Loan;
2.4 the Lender hereby releases and discharges the Transferor from all
claims and demands by the Lender, and from each of the Transferor's
liabilities and obligations to the Lender under the Old Loan and accepts
the identical liabilities and obligations to it of the Transferee in place
of the Transferor under the New Loan; and
2.5 the Transferor hereby releases and discharges the Lender from all
claims and demands by the Transferor, and from each of the Lender's
liabilities and obligations to the Transferor under the Old Loan.
3. THIRD PARTIES
A person who is not a party to this Deed has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this Deed.
4. COUNTERPARTS
This Deed may be executed by the parties hereto in any number of separate
counterparts, each of which when executed and delivered shall constitute an
original of this Deed, but all the counterparts shall together constitute
one and the same deed. No counterpart shall be effective until each party
has executed at least one part or counterpart.
5. GOVERNING LAW AND JURISDICTION
This Deed and the relationship between the parties shall be governed by,
and construed in accordance with, the laws of England and the English
courts shall have exclusive jurisdiction.
IN WITNESS WHEREOF this Deed has been executed and delivered as a deed by
the parties hereto on the date first above written.
EXECUTED as a DEED by )
TELEWEST COMMUNICATIONS PLC )
acting by two directors/ )
a director and the secretary )
EXECUTED as a DEED by )
TELEWEST UK LIMITED )
acting by two directors/ )
a director and the secretary )
EXECUTED as a DEED by )
[insert name of relevant counterparty] )
acting by two directors/ )
a director and the secretary )
SCHEDULE 12
FORM OF NOTICE OF ASSIGNMENT
To: Telewest Communications Networks Limited
Export House
Cawsey Way
Woking
Surrey GU21 6QX
Copy: Telewest UK Limited (the ASSIGNEE)
Export House
Cawsey Way
Woking
Surrey GU21 6QX
From: Telewest Communications plc (the ASSIGNOR)
Export House
Cawsey Way
Woking
Surrey GU21 6QX
Dated: [_____]
Dear Sirs
We refer to the transfer agreement dated [_____ _____] 2004 between the
Assignor, Telewest Global, Inc. and the Assignee (the TRANSFER AGREEMENT).
Terms defined in the Transfer Agreement have the same meaning in this
Notice.
We hereby give notice to you that, pursuant to the Transfer Agreement, we
have assigned absolutely all our rights, title, benefit and interest to the
TCN Receivable amounting to (pound)[5,136,592,929] to the Assignee.
Please acknowledge receipt of this notice by signing the attached copy of
it and sending it to the Assignee.
Yours faithfully
.............................................
for and on behalf of
Telewest Communications plc
............................................
Acknowledged
for and on behalf of
Telewest Communications Networks Limited
SCHEDULE 13
FORM OF ASSIGNMENT OF TRADE MARKS AND DOMAIN NAMES
[ ] 2004
TELEWEST COMMUNICATIONS PLC
TELEWEST COMMUNICATIONS NETWORKS LIMITED
=======================================================
DEED OF ASSIGNMENT
OF TRADE MARKS AND DOMAIN NAMES
=======================================================
THIS DEED OF ASSIGNMENT is made on 2004
BETWEEN
(1) TELEWEST COMMUNICATIONS PLC whose registered office is at Export
House, Cawsey Way, Woking, Surrey GU21 6QX (the ASSIGNOR); and
(2) TELEWEST COMMUNICATIONS NETWORKS LIMITED whose registered office is at
Export House, Cawsey Way, Woking, Surrey GU21 6QX (the ASSIGNEE).
WHEREAS
(A) The Assignor is the registered proprietor of the Trade Marks (as
defined below).
(B) The Assignor is the registrant of the Domain Names (as defined below).
(C) The Assignor owns the Business IPR (as defined below).
(D) The Assignor intends to enter into a scheme of arrangement with its
creditors pursuant to section 425 of the Companies Act 1985 (the SCHEME)
and, in connection with the Scheme, intends to enter into an agreement to
transfer its business to Telewest UK Limited, at the time of the transfer
of the business a wholly-owned subsidiary of the Assignor, (the TRANSFER
Agreement).
(E) This Agreement is entered into pursuant to the Transfer Agreement.
(F) The Assignor has agreed to assign the Trade Marks, the Domain Names,
the Goodwill and the Business IPR to the Assignee which, from the
Completion Date (as defined below) will be a wholly-owned subsidiary of
Telewest UK Limited, and the Assignee has agreed to accept such assignment,
on the terms and conditions set out in this Deed.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Deed the following expressions shall have the following
meanings:
BUSINESS IPR means all existing Intellectual Property Rights which are
owned by the Assignor but excluding the Trade Marks and Domain Names;
COMPLETION DATE means the date on which the Transfer Agreement completes
pursuant to clauses 4.1 to 4.3 of the Transfer Agreement;
DOMAIN NAMES means the Assignor's rights in and to the internet domain
names set out in Part B of Schedule 1;
GOODWILL means the goodwill of the Assignor in relation to the Assignor's
business (including in relation to the Trade Marks and the goods and
services in respect of which the Trade Marks are registered) together with
the exclusive right for the Assignee to represent itself as carrying on the
Assignor's business in succession to the Assignor;
INTELLECTUAL PROPERTY RIGHTS means patents, trade marks, service marks,
trade names, internet domain names, rights in designs, copyright (including
rights in computer software and databases) and moral rights, rights in
know-how and other intellectual property rights, in each case whether
registered or unregistered and including applications for the grant of any
such rights and all rights or forms of protection having equivalent or
similar effect anywhere in the world;
REGISTERED includes registrations and applications for registration; and
TRADE MARKS means the trade mark registrations and applications for
registration set out in Part A of Schedule 1.
1.2 In this Deed, unless the context otherwise requires:
(a) references to PERSONS includes individuals, bodies corporate (wherever
incorporated), unincorporated associations and partnerships;
(b) the headings are inserted for convenience only and do not affect the
construction of the Deed;
(c) references to one gender includes all genders; and
(d) any reference to an enactment or statutory provision is a reference to
it as it may have been, or may from time to time be amended, modified,
consolidated or re-enacted.
2. ASSIGNMENT
Pursuant to the Transfer Agreement, the Assignor hereby assigns to the
Assignee with full title guarantee absolutely, with effect from the
Completion Date, subject only to the terms and conditions of any licences
granted to third parties and otherwise free of all charges, liens, options,
licences and encumbrances, all of its rights, title and interest in and to
the Trade Marks, Domain Names and the Business IPR, including:
(a) all statutory and common law rights attaching to the Trade Marks,
together with the Goodwill; and
(b) the right to sue (and to retain damages recovered) in respect of any
infringement or unauthorised use of any of the Trade Marks which may
have occurred before the Completion Date.
3. FURTHER ASSURANCE
The Assignor shall perform (or procure the performance of) all further acts
and things, and make any filings and give any notifications (or procure the
making of any filings or giving of any notifications), and execute and
deliver (or procure the execution and delivery of) any further documents
required to effect the assignment of the Trade Marks and all the rights of
the Assignor to the Domain Names and the Business IPR to the Assignee.
4. WAIVERS
No failure or delay by either party in exercising any right or remedy
provided by law under or pursuant to this Deed shall impair such right or
remedy or operate or be construed as a waiver or variation of it or
preclude its exercise at any subsequent time and no single or partial
exercise of any such right or remedy shall preclude any other or further
exercise of it or the exercise of any other right or remedy.
5. FORCE MAJEURE
Neither party shall be liable for failure or delay in performing any of its
obligations under or pursuant to this Deed if such failure or delay is due
to any cause whatsoever outside its reasonable control, and it shall be
entitled to a reasonable extension of the time for performing such
obligations as a result of such cause.
6. AMENDMENT
6.1 No variation of this Deed shall be valid unless it is in writing and
signed by or on behalf of both parties.
6.2 Unless expressly agreed, no variation shall constitute a general waiver
of any provisions of this Deed, nor shall it affect any rights, obligations
or liabilities under or pursuant to this Deed which have already accrued up
to the date of variation, and the rights and obligations of the parties
under or pursuant to this Deed shall remain in full force and effect,
except and only to the extent that they are so varied.
7. SEVERABILITY
If and to the extent that any provision of this Deed is held to be illegal,
void or unenforceable, such provision shall be given no effect and shall be
deemed not to be included in this Deed but without invalidating any of the
remaining provisions of this Deed.
8. GOVERNING LAW AND JURISDICTION
8.1 This Deed and the relationship between the parties shall be governed
by, and interpreted in accordance with, English law.
8.2 Each of the parties agree that the courts of England are to have
exclusive jurisdiction to settle any dispute (including claims for set-off
and counterclaims) which may arise in connection with the creation,
validity, effect, interpretation or performance of, or the legal
relationships established by, this Deed or otherwise arising in connection
with this Deed and for such purposes irrevocably submit to the jurisdiction
of the English courts.
9. COUNTERPARTS
This Deed may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which is an original but all of
which together constitute one and the same instrument.
10. RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
10.1 Telewest UK Limited shall have the right under the Contracts (Right of
Third Parties) Act 1999 (CRTPA) to enforce clause 2 of this Deed.
10.2 Save as provided in clause 10.1, a person who is not a party to this
Deed shall have no right under the CRTPA to enforce any of its terms.
IN WITNESS WHEREOF this Deed has been executed and delivered as a deed by
the parties hereto on the day and year first written above.
EXECUTED as a DEED by )
TELEWEST COMMUNICATIONS PLC )
acting by two directors/ )
a director and the secretary )
EXECUTED as a DEED by )
TELEWEST COMMUNICATIONS )
NETWORKS LIMITED )
acting by two directors/ )
a director and the secretary )
SCHEDULE 1
PART A -TRADE MARKS
PART B
DOMAINS REGISTERED TO
TELEWEST COMMUNICATIONS PLC
IN WITNESS WHEREOF this Agreement has been executed and delivered as a deed
by the parties hereto the day and year first before written.
EXECUTED as a DEED by )
TELEWEST COMMUNICATIONS PLC )
acting by two directors/ )
a director and the secretary )
SIGNED as a DEED )
on behalf of TELEWEST GLOBAL, INC., )
a company organised under the laws of Delaware )
by a duly authorised signatory who, )
in accordance with the laws of that territory, )
is acting under the authority of )
TELEWEST GLOBAL, INC. )
EXECUTED as a DEED by )
TELEWEST UK LIMITED )
acting by two directors/ )
a director and the secretary )
CONTENTS
CLAUSE PAGE
1. DEFINITIONS..........................................2
2. AGREEMENT TO TRANSFER AND PRICE......................2
3. CONDITIONS PRECEDENT.................................2
4. COMPLETION...........................................3
5. TITLE AND SUPPLEMENTARY PROVISIONS...................3
6. TRADE MARKS, DOMAIN NAMES, GOODWILL AND BUSINESS
IPR........................................................4
7. INTRA-GROUP LOANS AND TCN RECEIVABLE.................5
8. EXPENSES FUND........................................5
9. INDEMNITY FOR VENDOR.................................7
10. INDEMNITY FOR TELEWEST JERSEY........................8
11. PROPERTIES AND GUARANTEES...........................10
12. TRANSFER TAXES......................................10
13. VAT.................................................10
14. TAX CONDUCT.........................................10
15. WITHHOLDING TAX AND GROSSING UP.....................12
16. US TAX..............................................12
17. ENTIRE AGREEMENT....................................12
18. NOTICES.............................................13
19. WAIVERS.............................................15
20. COUNTERPARTS........................................15
21. FURTHER ASSURANCE...................................15
22. SEVERABILITY........................................16
23. ASSIGNMENT..........................................16
24. RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES)
ACT 1999..................................................16
25. VARIATION...........................................17
26. JURISDICTION........................................17
27. GOVERNING LAW.......................................18
SCHEDULE 1 DEFINITIONS....................................19
SCHEDULE 2 SUBSIDIARIES...................................26
SCHEDULE 3................................................27
PART A DETAILS OF LEASEHOLD PROPERTY......................27
PART B DETAILS OF GUARANTEES..............................28
PART C ASSIGNMENT OF LEASEHOLD PROPERTY AND SUBSTITUTION
OF TCN OR TELEWEST LIMITED FOR THE VENDOR IN RELATION TO
THE GUARANTEES............................................29
SCHEDULE 4 EXCLUDED ASSETS................................40
SCHEDULE 5 REGISTERED RIGHTS..............................41
PART A....................................................41
PART B....................................................42
SCHEDULE 6 LIST OF ADVISERS...............................43
SCHEDULE 7 APPORTIONMENT..................................44
SCHEDULE 8................................................45
PART A....................................................45
PART B....................................................46
SCHEDULE 9 EXCLUDED LIABILITIES...........................47
SCHEDULE 10 INTRA-GROUP LOANS.............................48
SCHEDULE 11 FORM OF NOVATION AGREEMENT....................49
SCHEDULE 12 FORM OF NOTICE OF ASSIGNMENT..................53
SCHEDULE 13 FORM OF ASSIGNMENT OF TRADE MARKS AND DOMAIN
NAMES.....................................................54
JULY 2004
TELEWEST COMMUNICATIONS PLC
TELEWEST GLOBAL, INC
TELEWEST UK LIMITED
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TRANSFER AGREEMENT
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